F. Rusanovschi v. WCAB (PA Hospital of the Univ. of PA Health System) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Florentina Rusanovschi, :
: No. 1745 C.D. 2015
Petitioner : Submitted: February 5, 2016
:
v. :
:
Workers' Compensation Appeal :
Board (Pennsylvania Hospital of :
the University of Pennsylvania :
Health System), :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 15, 2016
Florentina Rusanovschi (Claimant) petitions for review of the August
26, 2015 order of the Workers’ Compensation Appeal Board (Board), which
affirmed the decision of a workers’ compensation judge (WCJ) denying Claimant’s
reinstatement petition. For the reasons that follow, we vacate and remand.
Claimant worked for Pennsylvania Hospital of the University of
Pennsylvania Health System (Employer) as a surgical technician in the open-heart
operating room; her duties included setting up tables and handing instruments to
physicians. On September 12, 2012, Claimant sustained a work-related injury to
her hands. Claimant initially believed that her dermatitis was related to a
previously diagnosed latex allergy, but testing later indicated that she had an
allergic reaction to the personal hygiene system (PHS) soap used throughout the
hospital. On November 19, 2012, Claimant returned to work with restrictions to
avoid contact with the PHS soap and any surfaces that might have residual PHS
soap on them.
Thereafter, on December 11, 2012, Employer issued a notice of
compensation payable (NCP), which accepted liability for a “dermatitis” type of
injury to Claimant’s hands and described the injury as “hand dermatitis from latex
gloves.” Exhibit D-1. The NCP was issued several weeks after Dr. Cohn had
diagnosed Claimant with contact dermatitis secondary to PHS soap and released
her to work with restrictions, by which time Employer was accommodating those
restrictions by providing Claimant with baby soap. On or around that same time,
the parties also executed a supplemental agreement suspending benefits based on
Claimant’s return to work in November 2012.
Claimant subsequently filed a reinstatement petition alleging a
recurrence of total disability as of April 19, 2013. Employer issued a notice of
compensation denial1 and the matter was assigned to a WCJ.
Before the WCJ, Claimant testified that she had been working for
Employer as a surgical technician since 2009. Claimant stated that on September
12, 2012, she developed bubbles on both hands that would bleed when they broke.
1
We note that where an employer denies liability for compensation, a notice of
compensation denial must be forwarded to the employee, with a copy to the Board, within 21
days after the employer has notice or knowledge of the employee’s disability. Section 406.1 of
the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the
Act of February 8, 1972, P.L. 25, 77 P.S. §717.1. Employer’s notice of compensation denial,
which referenced the September 12, 2012 work injury, was filed May 8, 2013, approximately six
months after Employer issued the NCP accepting liability for the same work injury and executed
a supplemental agreement suspending benefits. It appears that the Bureau accepted the notice of
compensation denial in lieu of an answer to Claimant’s reinstatement petition (Form LIBC-377).
2
She said that she had always worn latex-free and powder-free gloves at Employer’s
workplace because she previously had been diagnosed with a latex allergy.
Claimant testified that when her symptoms first developed, Employer
referred her to Dr. Reese, a Pennsylvania Hospital physician, who restricted her
from working and referred her to John Cohn, M.D., for allergy testing. Claimant
stated that test results indicated that she was allergic to a form of soap used at the
hospital. Dr. Cohn released her to return to work on November 18, 2012, with
restrictions that she not use the hospital’s soap. Claimant testified that Employer
provided her baby soap to use instead, but although she always carried the baby
soap with her, she continued to have symptoms.
Claimant stated that she stopped working on April 19, 2013, after a
severe outbreak of blisters and bleeding. She said that Employer again referred her
to Dr. Reese, who took her off work and continued to treat her. Dr. Reese also
recommended that Claimant return to Dr. Cohn. R.R. at 30-31.
Claimant testified that she does not experience any symptoms of
dermatitis in her hands while she is not at work. Claimant stated that she has been
using regular soap as well as the baby soap that Employer provided and has not
had any reactions. Although she could not identify a specific activity that caused a
reaction, Claimant believed that her symptoms arose from something that she was
doing at work. She described the onset of her symptoms as gradual, with itching
and burning that worsened throughout the day followed by an outbreak of bubbles
the next morning. Claimant also testified that she would be “scrubbed in” for most
of the work day. She said that she was never tested for an allergic reaction to the
gloves she was wearing but had no reason to think she was allergic to them.
3
Claimant also offered the deposition testimony of Dr. Cohn, who is
board certified in internal medicine, pulmonary medicine, and allergy and
immunology. Dr. Cohn testified that he first saw Claimant on October 24, 2012,
for a hand rash, which at that time was attributed to a latex allergy and related to
gloves she wore in the operating room. He said that the history provided by
Claimant included a previously diagnosed allergy to latex, after which she had
been wearing polyisoprene powder free gloves. Claimant reported that her current
problems began about a week and a half after Employer changed the brand of
gloves it used at the hospital. Claimant’s hands began to itch, and she was treated
with topical and oral steroids by the employee health department. Her problems
persisted, despite trying different kinds of gloves. Dr. Cohn concluded that
Claimant had contact dermatitis and scheduled a patch test.
Dr. Cohn testified that the patch test revealed a positive reaction to the
personal hygiene system used at the hospital, and he diagnosed Claimant with
contact dermatitis secondary to PHS soap. He released Claimant to return to work
with the restriction that she avoid contact with PHS soap and also with
instruments, doorknobs, railings, or any other surfaces that might have residual
PHS soap on them. Dr. Cohn explained that Claimant could develop an allergic
reaction even if she did not touch PHS with her own hands, adding that PHS soap
is used liberally by hospital employees who could leave trace amounts on surfaces
sufficient to trigger a reaction in Claimant.
Dr. Cohn said that he saw Claimant next on April 25, 2013, a few
days after she experienced a severe outbreak of blisters on her hands. She had
been treated with a Medrol Dose pack, which is a systemic and a topical
corticosteroid. Claimant told Dr. Cohn that everyone at work was using PHS soap.
4
He did not do additional testing but suggested that Claimant see a dermatologist in
New York who has a special interest in contact dermatitis.
Dr. Cohn testified that Claimant could return to work in an
environment where PHS is not used. He noted that PHS soap was used throughout
Employer’s hospital. Dr. Cohn acknowledged that wearing gloves while in the
operating room would remove the chance of passive exposure to PHS soap, but he
noted that it was not possible to wear them constantly all day.
Employer presented the deposition testimony of Richard Greene,
M.D., who is board certified in pediatrics and allergy and immunology. Dr.
Greene reviewed Claimant’s medical records. When asked his opinion regarding
Claimant’s condition, Dr. Greene responded: “It’s absolutely clear that she had an
occupational contact dermatitis.” R.R. at 105. Although Dr. Greene repeated his
belief that Claimant had an occupational contact dermatitis, he would not offer an
opinion as to the cause of that condition and stated that there was not enough
information available for him to make a more definitive diagnosis. R.R. at 105-06.
Dr. Greene said it was possible that Claimant suffered an allergy from the PHS
soap. He stated that it was absolutely possible that Claimant would be affected if
she was actively using the soap, but he thought it unlikely that she would be
affected by a passive exposure. R.R. at 107. He also believed it was possible that
Claimant reacted to a change in the gloves she wore at work, adding that if the
components of the glove had been changed, the possibility of reacting to the glove
would be more likely. R.R. at 108. Dr. Greene testified that additional testing was
necessary in order to identify the contactant, and he believed that if the contactant
was identified, Claimant would be able to avoid it. R.R. at 113-14.
5
At the conclusion of his direct testimony, Dr. Greene stated as
follows:
Q. Doctor, without knowing what the contactant truly is,
are you able to say definitively whether or not she was
coming into contact with that contactant solely on the
premises of Pennsylvania Hospital?
A. Yes, I think we can safely assume that that’s true.
Q. Why, Doctor?
A. Because she is asymptomatic or she has no problem
when she is not working.
R.R. at 114.
The WCJ accepted Claimant’s testimony as credible to establish that
she had an allergic reaction on her hands. He also relied on her testimony to find
that, after learning that Claimant was allergic to PHS soap used in the hospital,
Employer accommodated her condition by providing a bottle of baby soap, which
she also used at home. The WCJ found Dr. Greene’s testimony more credible and
persuasive than that of Dr. Cohn, and found as follows:
8. Dr. Cohn admitted that Claimant was never tested for
all the components contained in the gloves. Furthermore,
Dr. Cohn determined that Claimant could return to work
if she did not use the personal hygiene system soap.
Employer provided Claimant with an alternative soap
which she admits she uses at home without problem.
This Judge finds Dr. Greene’s testimony more persuasive
that Claimant suffers from contact dermatitis but has not
had adequate testing to rule out other causes besides
personal hygiene system soap. Dr. Greene reasons that if
the soap caused her symptoms, Claimant’s condition
should have resolved if she began using the baby soap
exclusively, and it did not.
9. Based upon Dr. Greene’s credible testimony, Claimant
has not proven what agent, whether at home or at work,
6
has caused her to suffer an aggravation of dermatitis of
the hands on or about April 19, 2013, nor has Claimant
proved that the initial injury altered the chemistry of her
hands and that such condition disabled her from
performing her job duties on or about that time. Any
wage loss had nothing to do with glove dermatitis and
there is no medical evidence to show that her hands have
become super sensitized since the initial work injury.
WCJ’s Findings of Fact Nos. 8-9. The WCJ concluded that “Employer rebutted
any presumption of continuing disability related to the acknowledged work injury
of allergy to latex gloves. The medical evidence of record only shows that
Claimant’s dermatitis results from soap or something else.” WCJ’s Conclusion of
Law No. 3. Accordingly, the WCJ denied Claimant’s reinstatement petition.
Claimant appealed to the Board. The Board stated that Claimant’s
acknowledged work injury is hand dermatitis from latex gloves and that Claimant’s
expert did not testify that her dermatitis was due to latex gloves.2 Rejecting
Claimant’s assertion that the WCJ failed to issue a reasoned decision, the Board
affirmed.
On appeal to this Court,3 Claimant argues that the WCJ erred in
concluding that she did not meet her burden of proof in this reinstatement
2
Although the WCJ and the Board relied on the description of the work injury in the
NCP, hand dermatitis “from latex gloves,” we do not address whether such a description is
equivalent to a medical diagnosis as that issue has not been raised.
3
Our scope of review is limited to determining whether constitutional rights were
violated, an error of law was committed, or whether necessary findings of fact are supported by
the evidence. Milner v. Workers’ Compensation Appeal Board (Main Line Endoscopy Ctr.), 995
A.2d 492, 495 n.2 (Pa. Cmwlth. 2010). “Substantial evidence” is such relevant evidence as a
reasonable person might accept as adequate to support a conclusion. Waldameer Park, Inc. v.
Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).
7
proceeding. Claimant also contends that the WCJ failed to issue a reasoned
decision.
An employee seeking reinstatement following a suspension of benefits
must prove that (1) through no fault of her own, her disability is again adversely
affected by the work-related injury, and (2) the disability that gave rise to the
original claim continues. Pieper v. Ametek-Thermox Instruments Div., 584 A.2d
301, 304-05 (Pa. 1990). In such cases, the causal connection between the original
work-related injury and the disability that gave rise to compensation is presumed.
Id.
Relying on St. Mary’s Home of Erie v. Workmen’s Compensation
Appeal Board (Stadtmiller), 683 A.2d 1266 (Pa. Cmwlth. 1996), Claimant first
argues that the WCJ erred in concluding that she failed to meet her burden of
proof.
The claimant in St. Mary’s worked as a housekeeper. On November
1, 1991, she became disabled due to a work-related low back injury, and she
received benefits pursuant to a compensation agreement that described the injury
as a “herniated disc L4-L5 aggravated by working as a housekeeper.”4 683 A.2d at
1267 n.1. In 1993, the employer filed a termination petition, stating that it had
recently received medical information reflecting that the claimant’s disability and
medical expenses on or after November 1, 1991, were not due to any work injury
or aggravation of a pre-existing condition. The employer later amended the
termination petition and sought to review the parties’ agreement, averring that the
employer had accepted liability for the original claim based on the reasonable
4
The L4-L5 lumbar vertebrae are in the low back. Stedman's Medical Dictionary, 1710
and Plate 2 (25th ed. 1990).
8
belief that she suffered a disc herniation as the result of a work incident. The
claimant filed answers to both petitions, as well as a petition to review medical
treatment.
Before the WCJ, the claimant testified that her back pain began in
June 1991 while she was using a wet mop at work. The claimant stated that she
eventually sought treatment for her back pain on November 1, 1991, and that she
underwent surgery on August 18, 1992. The claimant also testified that she had
scoliosis, a pre-existing condition, but no one ever told her that the scoliosis was
causing her back pain. In fact, the claimant stated that she had never received any
treatment for her scoliosis.
The employer presented the deposition testimony of Louis J. Iorio,
M.D., a board-certified orthopedic surgeon who had examined the claimant prior to
her surgery. At that time, Dr. Iorio believed that the claimant had a herniated disc
at the L5-S1 level, which probably resulted from repetitive heavy lifting at work,
and a serious progressive lumboscoliosis condition. Dr. Iorio agreed with the
claimant's treating physician that both conditions had to be surgically corrected.
However, when Dr. Iorio subsequently reviewed the operative reports, he
concluded that the claimant did not have an L5-S1 disc herniation, but was
suffering only from the late sequelae of severe kyphoscoliosis.5 Dr. Iorio also
opined that the claimant’s pre-operative condition was not related to any work
injury.
5
Kyphoscoliosis is kyphosis (a deformity of the spine) combined with scoliosis.
Stedman's Medical Dictionary, 830 (25th ed. 1990).
9
The WCJ rejected Dr. Iorio’s testimony and found that the claimant
suffered a work-related injury to her low back on or about November 1, 1991, and
the employer accepted liability for a low back injury aggravated by her working as
a housekeeper. The WCJ also stated that it was unknown whether the low back
injury was, in fact, a herniated disc at L5-S1. Nevertheless, the WCJ found that
the claimant was unable to perform her pre-injury job duties as a result of the
work-related low back injury and that her medical treatment was causally related to
the work injury. Based on those findings, the WCJ concluded that the employer
failed to prove that the claimant’s work-related disability had ceased; the employer
failed to prove that the Agreement for Compensation should be set aside; and the
claimant met her burden of proving a causal relationship between her medical
treatment and her work injury. Consequently, the WCJ denied the employer’s
termination and review petitions and granted the claimant’s review petition. 683
A.2d at 1268.
The employer appealed to the Board, which affirmed the WCJ's
decision. On appeal to this Court, the employer argued that it had accepted
liability for a work injury in the nature of a herniated disc, and should not be held
liable for the medical treatment of the claimant’s scoliosis, which was not work-
related. In other words, the employer argued that the claimant failed to prove that
there was a causal connection between her medical treatment and her work injury. 6
We rejected the employer’s argument. Specifically, we noted that
6
In Kurtz v. Workers’ Compensation Appeal Board (Waynesburg College), 794 A.2d
443 (Pa. Cmwlth 2002), we explained a claimant’s burden to review medical benefits as follows:
Once a claimant has established that the injury is causally related
to his employment, or liability for the injury has been
acknowledged by an employer through a NCP, and there has not
(Footnote continued on next page…)
10
Claimant’s treating physician and Employer’s own
medical expert both diagnosed Claimant’s low back work
injury as a herniated disc. The same doctors agreed that
proper treatment of that work injury required surgical
correction of Claimant’s pre-existing scoliosis. Thus, but
for the work injury to her low back, Claimant would not
have needed surgery at that time to mend her scoliosis.
In other words, some work injury, if not a herniated disc,
caused Claimant to need low back surgery on August 18,
1992.
It does not matter that the surgical team discovered
during surgery that the pre-surgery diagnosis was wrong,
and that Claimant's work injury was not a herniated disc
but, rather, some other low back problem which required
a different surgical procedure. The point is that some
work-related injury precipitated the surgery.
683 A.2d at 1268-69 (emphasis in original). Accordingly, we agreed that the
claimant met her burden of proving a causal connection between the original work
injury and her medical bills.
(continued…)
been a termination of benefits, the claimant is not required to
continually establish that medical treatment of that compensable
injury is causally related because the injury for which the claimant
is treating has already been established. Rather, in this regard, it is
the employer's burden to establish that medical treatment
associated with the injury was unreasonable or unnecessary. If,
however, a claimant receives medical treatment for new symptoms
that allegedly arise from the compensated injury, and the employer
refuses to pay the associated bills, the burden of establishing that
the symptoms and treatments are related to the compensable injury
turns on whether the connection is obvious.
Id. at 447 (citations and footnote omitted). See also Gens v. Workmen’s Compensation Appeal
Board (Rehabilitation Hospital of Mechanicsburg), 631 A.2d 804 (Pa. Cmwlth. 1993); Hilton
Hotel Corp. v. Workmen's Compensation Appeal Board (Totin), 518 A.2d 1316 (Pa. Cmwlth.
1986).
11
In this case, both medical experts diagnosed Claimant as suffering
with contact dermatitis as a result of a contactant at Employer’s hospital. Indeed,
Doctor Greene repeatedly testified that Claimant suffered a “contact dermatitis”
injury caused by a contactant in her workplace. As the expert testimony illustrates,
the determination that Claimant’s contact dermatitis injury was work related does
not depend on identifying the specific contactant that caused her symptoms. While
Claimant’s expert attributed her symptoms to PHS soap and Employer’s expert
opined that gloves could not be ruled out as a cause, both testified that Claimant
developed contact dermatitis as a result of exposure to some contactant at her
workplace. In accord with St. Mary’s, we conclude that the fact that the
description of the injury is incorrect is not dispositive where the evidence
demonstrates that some work-related substance caused Claimant’s injury.
Unfortunately, in summarizing and crediting Dr. Greene’s testimony,
the WCJ made no reference to Dr. Greene’s opinion that Claimant was exposed to
the contactant solely on the premises of Employer’s hospital. R.R. at 114, 121-22.
Because the WCJ failed to address this significant portion of Dr. Greene’s
testimony, we cannot ascertain whether it was overlooked or rejected as not
credible. Thus, we agree with Claimant that the WCJ’s decision does not satisfy
the reasoned decision requirements of Section 422(a) of the Act, which states:
All parties to an adjudicatory proceeding are entitled to a
reasoned decision containing findings of fact and
conclusions of law based upon the evidence as a whole
which clearly and concisely states and explains the
rationale for the decisions so that all can determine why
and how a particular result was reached. The workers'
compensation judge shall specify the evidence upon
which the workers' compensation judge relies and state
the reasons for accepting it in conformity with this
section. When faced with conflicting evidence, the
12
workers’ compensation judge must adequately explain
the reasons for rejecting or discrediting competent
evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’
compensation judge must identify that evidence and
explain adequately the reasons for its rejection. The
adjudication shall provide the basis for meaningful
appellate review.
77 P.S. §834. We note that while a WCJ may generally disregard the testimony of
any witness, even if the testimony is uncontradicted, the WCJ does not have
discretion to disregard competent evidence without a reasonable explanation or
without specifically discrediting it. Green v. Workers’ Compensation Appeal
Board (U.S. Airways), 28 A.3d 936, 942 (Pa. Cmwlth. 2011).
Accordingly, we vacate the Board’s order and remand this matter for a
new decision by the WCJ that satisfies the requirement of section 422(a) of the Act
and reflects consideration of all of the uncontradicted, relevant evidence of record.7
MICHAEL H. WOJCIK, Judge
7
Assuming, without deciding, that the description of the injury in the NCP is relevant
only to contact dermatitis caused by a latex allergy, we recognize that Claimant has not filed a
petition to amend the NCP under section 413(a) of the Act, 77 P.S. §§771-772. However,
Pennsylvania courts have repeatedly affirmed the precept that the form of a petition does not
control when a claimant is entitled to relief. See, e.g., Westinghouse Electric Corp. v. Workers’
Compensation Appeal Board (Korach), 883 A.2d 579, 590-91 (Pa. 2005); Penn Beverage
Distributing Company v. Workers’ Compensation Appeal Board (Rebich), 901 A.2d 1097, 1102
n.8 (Pa. Cmwlth. 2006). “It has long been the rule in workmen’s compensation cases that the
form of the petition is not controlling where the facts warrant relief, and that if a claimant is
entitled to any relief under any section of the Act, his petition will be considered as filed under
that section.” Long v. Workmen’s Compensation Appeal Board, 505 A.2d 369, 373 (Pa. Cmwlth.
1986).
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Florentina Rusanovschi, :
: No. 1745 C.D. 2015
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Pennsylvania Hospital of :
the University of Pennsylvania :
Health System), :
:
Respondent :
ORDER
AND NOW, this 15th day of April, 2016, the order of the Workers’
Compensation Appeal Board, dated August 26, 2015, is vacated and this matter is
remanded for a new decision in accordance with the foregoing opinion.
Jurisdiction relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge