IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA SEPTA and CompServices, Inc., : Petitioners : : No C.D v. : : Submitted: March 14, 2014 Workers Compensation Appeal : Board (Pankowicz), : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: May 29, 2014 SEPTA (Employer) and CompServices, Inc., petition for review of the October 23, 2013 order of the Workers Compensation Appeal Board (Board), insofar as it affirmed the decision of a workers compensation judge (WCJ) to grant Peter Pankowicz s (Claimant) claim petition. We affirm. Claimant has worked for Employer for twenty-eight years, most recently as a mechanic equipment foreman. On November 12, 2009, Employer placed Claimant on an improvement program because of two alleged policy violations, the first two policy violations of his tenure. Claimant, who has a history of high blood pressure, attended a routine blood pressure checkup with Employer s medical department on November 24, After the test revealed an abnormally high blood pressure reading, Employer s medical department sent Claimant home and advised

2 him to seek medical attention. Thereafter, Claimant advised his supervisor of his condition and said he associated it with his being placed on the improvement program. That same day, Claimant saw his family doctor, who increased Claimant s blood pressure medication and provided Claimant with a list of psychiatrists so that Claimant could seek psychiatric medication and attention. Claimant sought the care of psychiatrist Peter Zorach, M.D., (Dr. Zorach) and continued to see his family doctor. (WCJ s Finding of Fact No. 5.) Claimant filed a claim petition alleging that he has uncontrolled hypertension, stress, panic attacks, depression, and insomnia as a result of his employment, which was assigned to a WCJ. The WCJ conducted multiple hearings. Claimant testified that his blood pressure has risen as a result of stress from his job. Claimant noted that he first started taking medication for his high blood pressure in 1994 after an incident with Employer. Claimant stated that, in 2006, Employer hired a new assistant general manager who embarked on a personal campaign to remove elderly, sick, or injured employees from the workplace. Claimant described an incident in 2006 where he missed a month of work due to increased blood pressure after a threat that he would be fired. Claimant identified two other incidents that occurred prior to his placement on an improvement program. Claimant testified that he accepted a five-day suspension in December 2008 for an alleged failure to properly inspect a gas leak. Claimant also testified that in the second incident, he was disciplined for failing to personally check a fire alarm in accordance with Employer s policy. (Reproduced Record (R.R.) at 19a-20a, 25a, 28a, 31a-32a, 39a.) Claimant stated that in November 2009, Joe Brennan (Brennan), Employer s service director of maintenance and construction for the bridges and buildings department, accompanied by two bodyguards, pounded on Claimant s desk, 2

3 informed Claimant that he would be placed on an improvement program, and said that Claimant would be out the door in... three months. (R.R. at 30a.) Claimant testified that Employer s placement of an employee on an improvement program signifies Employer s intent to fire that employee. (R.R. at 20a.) Claimant stated that, on November 24, 2009, he underwent a routine blood pressure check with Employer s medical department. He testified that Employer s medical department disqualified him from working because his blood pressure reading was too high. Claimant noted that he had a similar routine blood pressure check with Employer s medical department approximately three months earlier, which he passed. (R.R. at 19a, 37a-38a.) Claimant further testified that he continues to see his family doctor every week or two. He stated that he first treated with Dr. Zorach once a week and now sees him once a month. Claimant stated that he had a follow-up exam with Employer s medical department, which refused to release him for work. He explained that he is not able to work without his medications because his blood pressure is too high and that Employer s medical department will not allow him to work when on these medications. Claimant also stated that, although his blood pressure has stabilized since he stopped working on November 24, 2009, he still has panic attacks and his blood pressure increases whenever he attends appointments with Employer s medical department. Claimant noted that his anxiety has improved since he has been out of work and that his insomnia has improved a little bit with medication. (R.R. at 22a-24a, 26a, 41a-42a.) Claimant presented the deposition testimony of Dr. Zorach, who is board certified in adult and child psychiatry. Dr. Zorach stated that he first examined Claimant on January 7, 2010, and that he had seen Claimant a total of eight times 3

4 with monthly visits scheduled thereafter. Dr. Zorach opined that Claimant suffers from major depression, from panic disorder without agoraphobia, and from generalized anxiety disorder. Dr. Zorach also stated that Claimant met the criteria for classic panic disorder based on his symptoms of having palpitations, shaking, shortness of breath, nausea, dizziness and lightheadedness, a fear that he was going crazy, and chills and flushes. Dr. Zorach noted that although a patient only needs to present four out of thirteen symptoms for a diagnosis of panic disorder, Claimant presented seven. Dr. Zorach also noted that Claimant s symptoms occurred upon thoughts of work or some situation at work. He further stated that Claimant met the criteria for generalized anxiety disorder, as Claimant has all of the symptoms for generalized depression disorder that include being keyed up, on edge, fatigued, irritable, having trouble concentrating, having tension, and having sleeping problems. (R.R. at 263a-65a, 269a-70a, 273a.) Dr. Zorach testified that Claimant has somewhat improved since the initial January visit but that many of Claimant s symptoms are stress-related, and, thus, he would expect to see an intensification of anxiety, perhaps recurrence of panic attacks, and a deepening of depression if Claimant returned to work. Dr. Zorach opined further that Claimant may have been more depressed at his last visit on July 12, Dr. Zorach stated that Claimant had been in good health until the job stressors occurred. He opined that Claimant s major depression, panic disorder, and generalized anxiety disorder all related to Claimant s job situation. He noted that Claimant did not report any stressors that were not work-related, Claimant s panic attacks started when he had the difficulties at work, and Claimant has an upset stomach and feels very tense when just thinking about work. (R.R. at 271a-72a, 274a, 277a, 286a, 288a.) 4

5 Further, Dr. Zorach opined that Claimant s worsening high blood pressure was causally related to his job situation. Specifically, he stated that Claimant s work-related stress contributed to his high blood pressure. Dr. Zorach distinguished Claimant s high blood pressure as a physical injury separate from his symptoms related to his psychic injuries. He also stated that stress causes hormonal changes that can lead to high blood pressure, which he opined is what occurred to Claimant in this instance. Dr. Zorach testified that he has not yet released Claimant to return to work. (R.R. at 274a-75a.) Brennan, Claimant s supervisor, testified for Employer regarding the two work incidents leading up to Claimant s placement on the improvement program. Brennan testified that Claimant received a five-day suspension for failure to respond to the gas leak as required. Brennan also testified that Claimant received a ten-day suspension for his failure to personally respond to a fire alarm when he was the oncall manager. Brennan stated that as a result of these incidents, Claimant was subsequently placed on the improvement program. Brennan also noted that Claimant never served the ten-day suspension because he stopped working for medical reasons. He testified that Claimant has not returned to work but that his job is still available. (R.R. at 55a, 58a-60a, 63a-64a.) Claimant testified in rebuttal, stating that he did in fact check the gas leak with Employer s systems safety employees. Claimant explained that a fire alarm never went off in June 2009 and that there was only a problem with the sprinkler system. He further noted that he continues to see his family doctor once a month and Dr. Zorach every four to six weeks and that Employer s medical department still disqualified him from working. (R.R. at 90a, 96a, 98a-99a.) 5

6 Employer presented the deposition testimony of James A. Lamprakos, D.O. (Dr. Lamprakos), who is board certified in family medicine. Dr. Lamprakos testified that he first examined Claimant on May 18, He stated that Claimant s chief complaints were numbness and tingling in his right small finger. He further testified that he diagnosed Claimant with high blood pressure, stage one, meaning that Claimant has early hypertension. Based on his review of Claimant s medical records, his examination of Claimant, and the history he provided, Dr. Lamprakos diagnosed Claimant with ongoing hypertension controlled by medication. He opined that Claimant s hypertension related back to Claimant s 1992 diagnosis, and he noted that hypertension is prevalent in obese males and increases in severity with each decade. Dr. Lamprakos opined that medical reasons cause hypertension and that work-related stress would not have greatly contributed. He noted that he could not locate any evidence of an incident at work that would have exacerbated Claimant s hypertension. Based on Claimant s high blood pressure diagnosis, Dr. Lamprakos opined that Claimant could certainly work with no restrictions. (R.R. at 187a-89a, 192a, 199a-02a.) Employer also presented the deposition testimony of Gladys S. Fenichel, M.D. (Dr. Fenichel), who is board certified in psychiatry. Dr. Fenichel testified that she examined Claimant on May 18, Based on her review of Claimant s history, medical records, and employment records received from Employer, Dr. Fenichel opined that Claimant did not sustain a work-related psychiatric injury in November Dr. Fenichel acknowledged that Claimant had psychiatric conditions of depression in remission and stabilized anxiety symptoms. She opined that a poor performance evaluation could cause anxiety but would not cause Claimant to have an anxiety disorder. Dr. Fenichel stated that Claimant did not have a psychiatric 6

7 disorder that would prevent him from working. She also stated that none of Claimant s medications should prevent him from working and added that if Employer s medical department had an issue with Claimant working while taking Tranxene, an anti-anxiety medication, the Tranxene prescription could be discontinued. Dr. Fenichel acknowledged that Claimant never sought psychological or psychiatric counseling prior to November 24, (R.R. at 119a, 139a-42a, 144a.) By decision and order dated June 30, 2011, the WCJ credited the testimony of Claimant and Dr. Zorach, specifically that Claimant s increased blood pressure, major depression, panic disorder, and anxiety disorder are related to Claimant s employment. The WCJ stressed Dr. Zorach s testimony that job situations like Claimant s often cause increased blood pressure. The WCJ accepted Dr. Zorach s opinions over Dr. Lamprakos s and Dr. Fenichel s opinions where they conflicted, noting that Dr. Zorach has been treating Claimant over a period of time whereas Dr. Lamprakos and Dr. Fenichel both examined Claimant only once. The WCJ accepted Brennan s testimony only where it supported the events that Claimant discussed in his testimony. The WCJ determined that Claimant has not sufficiently recovered from his work-related conditions to return to work. The WCJ found it significant that Employer s medical department disqualified Claimant from working. The WCJ also determined that Claimant s physical and mental conditions flowed and merged together with contemporaneous treatment for both, i.e., essentially a physical/mental combination increased blood pressure tied to depression, panic, and anxiety, all related to real work events experienced by this long time employee. (WCJ s Finding 7

8 of Fact No. 12.) The WCJ concluded that Claimant met his burden of proving all elements of his work-related injuries and thus granted Claimant s claim petition. Employer appealed to the Board, which noted that both parties agreed that the stimulus at issue is psychic. The Board stated that a claimant has a different burden of proof for a psychic stimulus that causes a physical injury versus a psychic stimulus that causes a psychic injury, and, thus, reviewed Claimant s psychic injuries, which included his stress, panic attacks, depression, and insomnia, separately from his physical injury, which was Claimant s uncontrolled hypertension. Specifically, the Board distinguished Claimant s hypertension from his mental injuries as follows: (Board s op. at 7-8.) While Claimant s high blood pressure was contemporaneous with his depression, panic, and anxiety, the credible evidence of record does not support a conclusion that they were all part of the same physical injury. Dr. Zorach credibly testified that while Claimant had a history of high blood pressure, or hypertension, his blood pressure had increased as a result of hormones his body released due to stress he experienced at work. Although Dr. Zorach also diagnosed claimant with mental conditions including panic, anxiety, and depression disorders, he explained that Claimant s high blood pressure was a physical result of his body s response to the stress, and nothing in Dr. Zorach s testimony indicated that the physical aspect of his high blood pressure merged with or caused his mental injuries. Where Dr. Zorach distinguished Claimant s physical symptom of high blood pressure from the mental conditions, we must conclude that Claimant s high blood pressure is an objectively verifiable, purely physical condition. Panyko [v. Workers Compensation Appeal Board (U.S. Airways), 888 A.2d 724 (Pa. 2005)]. Therefore, Claimant was required only to show that the high blood pressure is causally related to his work and arose in the course of his employment. Id. 8

9 Citing Panyko, the Board found that the WCJ did not err in concluding that Claimant met his burden of proving that his physical injury of increased blood pressure is the result of work-related stress. However, the Board determined that the WCJ erred in concluding that Claimant s psychic conditions merged with his physical condition and in analyzing his psychic conditions under the same standard as his physical condition. The Board concluded that Claimant failed to meet his burden of proving not only that his psychic conditions are causally related to his work but that they are also the result of abnormal working conditions. Citing Pennsylvania Human Relations Commission v. Workers Compensation Appeal Board (Blecker), 683 A.2d 262 (Pa. 1996), and Philadelphia Newspapers v. Workers Compensation Appeal Board (Guaracino), 675 A.2d 1213 (Pa. 1996), the Board concluded that neither Claimant s disciplinary issues nor any confrontations with his supervisor are sufficient to establish an abnormal working condition. Thus, the Board affirmed the WCJ s order granting Claimant s claim petition regarding his hypertension, his physical injury caused by the work-related psychic stimulus, and reversed the WCJ s order granting Claimant s claim petition regarding his psychic conditions that were caused by the work-related psychic stimulus. On appeal to this Court, 1 Employer argues that the Board erred in concluding that Claimant established that his increased hypertension is work-related. In a claim petition, the claimant bears the burden of proving all of the elements necessary to support an award. Inglis House v. Workers Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). To establish an entitlement to 1 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact were supported by substantial evidence. Bemis v. Workers Compensation Appeal Board (Perkiomen Grille Corporation), 35 A.3d 69, 71 n.5 (Pa. Cmwlth. 2011). 9

10 wage loss benefits, the claimant must prove by unequivocal medical evidence that the work injury resulted in a disability, which is a loss of earning power. School District of Philadelphia v. Workers Compensation Appeal Board (Lanier), 727 A.2d 1171, (Pa. Cmwlth. 1999). Aggravations of pre-existing conditions are fully compensable under the Workers Compensation Act. 2 Galbreath v. Workers Compensation Appeal Board (Gordon), 627 A.2d 287, 290 n.5 (Pa. Cmwlth. 1993). There are three categories of mental or psychic-related injuries: (1) an injury where a work-related psychic stimulus causes a physical injury; (2) an injury where a work-related physical stimulus causes a psychic injury; and (3) an injury where a work-related psychic stimulus causes a psychic injury. Ryan v. Workers Compensation Appeal Board (Community Health Services), 707 A.2d 1130, (Pa. 1998). In a case [where a work-related psychic stimulus causes a purely physical injury], the claimant is exposed to some psychological trauma or stimulus which, in turn, causes the claimant to suffer a distinct physical injury. Whiteside v. Workmen s Compensation Appeal Board (UNISYS Corporation), 650 A.2d 1202, 1205 (Pa. Cmwlth. 1994). To prevail on this type of injury claim, the claimant must prove only that: (1) they are suffering from an objectively verifiable physical injury; and (2) the injury arose in the course of employment and was related thereto. Panyko, 888 A.2d at 732. In Panyko, the claimant filed a claim petition seeking benefits for a heart attack he suffered during a meeting with his supervisor. The petition was assigned to a WCJ, who, after a hearing, credited the testimony of the claimant and his doctor that the claimant s heart attack occurred as a result of the meeting with his supervisor. 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

11 The Board affirmed. On appeal to this Court, we relied on the Supreme Court s opinion in Davis v. Workers Compensation Appeal Board (Swarthmore Borough), 751 A.2d 168 (Pa. 2000), which held that where a claimant seeks benefits for a physical injury, such as a heart attack, caused by a psychic reaction to a working condition, such as stress, the claimant must prove not only that the psychic reaction caused the injury, but also that the working condition that caused the psychic reaction was abnormal. Panyko, 888 A.2d at 728. Thus, we vacated the Board s order and remanded to the Board to remand to the WCJ for findings regarding abnormal working conditions. On remand, the WCJ found that the meeting between the claimant and his supervisor did not constitute an abnormal working condition. The WCJ concluded that the claimant failed to meet his burden of proving an abnormal working condition and denied the claimant s claim petition. Both the Board and this Court affirmed. On appeal to our Supreme Court, the claimant argued that our Court misinterpreted Davis to mean that a claimant who suffers a physical injury stemming from a work-related psychic stimulus must also prove an abnormal working condition. The court agreed and reversed this Court s order. The Supreme Court held that Davis only stands for the proposition that where a claimant suffers a psychic injury with attendant physical symptoms, the claimant must meet the abnormal working relations test. Id. at 731. The court declined to extend the abnormal working conditions test to physical injuries caused by work-related psychic stimuli, stating that: [U]nlike psychic injuries, purely physical injuries are usually objectively verifiable and can ordinarily be traced to an identifiable source. Thus, a physical injury s 11

12 relationship to the workplace is easier to discern than that of a psychic injury, which, by its nature, is inherently subjective.... Further, given the objective nature of physical injuries, they are less likely than psychic injuries to be either subject to manipulation or simply the result of a subjective reaction to normal working conditions. Id. at 732 (citation and quotations omitted). Thus, the Supreme Court held that claimants alleging physical injuries as a result of a psychic stimulus need only to show that (1) they are suffering from an objectively verifiable physical injury; and (2) the injury arose in the course of employment and was related thereto. Id. (citation and quotations omitted). In a [case where a work-related physical stimulus causes a psychic injury]... the claimant sustains a physical trauma which usually results in some physical disability. Following the trauma, the claimant in such cases also exhibits some psychological or nervous injury which impedes his ability to maintain employment. Whiteside, 650 A.2d at To prevail on this type of injury claim, the claimant need only establish a causal connection between the work-related physical stimulus and the resulting psychic injury. Id. [A case where a work-related psychic stimulus causes a psychic injury] arises when the claimant is exposed to a psychologically traumatic stimulus and subsequently develops a psychological or nervous injury. Id. To prevail on this type of injury claim, the claimant must prove that: (1) he suffered from a psychic injury; and (2) his psychic injury was either more than a subjective reaction to normal working conditions or caused by abnormal working conditions. Panyko, 888 A.2d at 730. [W]here a claimant suffers a psychic injury with attendant physical symptoms, the claimant must meet the abnormal working relations test. Id. at 731 (emphasis in original). 12

13 Here, Claimant s increased blood pressure fits within the category of a psychic stimulus causing a purely physical injury. Although there was testimony of Claimant s prior history of high blood pressure, the WCJ credited Dr. Zorach s testimony that Claimant feels very tense... when he thinks about work[,] (R.R. at 277a), and that his increased blood pressure relates to his job situation. The WCJ also accepted Dr. Zorach s testimony over the conflicting testimony of Dr. Lamprakos and Dr. Fenichel concerning the current cause thereof. Specifically, Dr. Zorach testified as follows: [Claimant s Attorney]: The increase in his blood pressure in which SEPTA sent him home, what relationship, if any, does that increase in blood pressure go to to [sic] his job situation? [Dr. Zorach]: I think it was -- I think it was with -- that it was related to the stress that he was under at the job situation. And under stress our bodies produce a hormone called epinephrine, which produces all kinds of changes. It makes the heart beat more rapidly and restricts the vessels, and people can get a significant increase in their blood pressure when they are in a situation like that. [Claimant s Attorney]: happened to [Claimant]? In your opinion, is that what [Dr. Zorach]: Yes. * * * [Employer s Attorney]: Doctor, were you aware that [Claimant] had high blood pressure since 1992? [Dr. Zorach]: Yes. [Employer s Attorney]: And he has been on medication since either 1992 or 1994; were you aware of that? [Dr. Zorach]: I didn t know when they were started, but I knew he was on meds. 13

14 (R.R. at 274a-75a, 281a-82a.) Noticeably, Dr. Zorach addressed Claimant s increased blood pressure as a separate injury, stating that it was caused by stress, which is a psychic stimulus, at work. Dr. Zorach never suggested that Claimant s hypertension was merely a physical manifestation of his alleged psychic injuries. Thus, because Claimant s injury, his high blood pressure, is a purely physical injury caused by a psychic stimulus, Claimant need only establish that his injury was workrelated. Panyko. In addition, the WCJ found Claimant s testimony credible that Brennan informed him that he would be placed on an improvement program and fired within three months; that, after being placed on the improvement program on November 12, 2009, Employer s medical department disqualified him from working based on his high blood pressure reading during the November 24, 2009 routine check; and that he passed a routine blood pressure check with Employer s medical department three months prior to his failed blood pressure check. It is well settled that, in workers compensation proceedings, the WCJ has complete authority over questions of credibility, conflicting medical evidence, and evidentiary weight. Sherrod v. Workers Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to accept or reject the testimony of any witness, in whole or in part. Lombardo v. Workers Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). Thus, as the ultimate arbiter of credibility, the WCJ s determinations will not be disturbed on appeal. Sherrod; Lombardo. Similar to the situation in Panyko, Claimant has satisfied the two criteria necessary to receive compensation for a physical injury caused by a work-related psychic stimulus. First, the testimony of Claimant and Dr. Zorach found credible by 14

15 the WCJ regarding the increase in Claimant s blood pressure readings and Employer s medical department s disqualification of Claimant from working provide objectively verifiable evidence that Claimant s increased blood pressure is a physical injury related to work. Panyko. Second, the credited testimony of Dr. Zorach, Claimant, and Brennan established that Claimant s hypertension is a result of workrelated psychic stimuli, specifically being placed on an improvement program and Brennan s manner in which he informed Claimant that he would be placed on the improvement program. Id. The WCJ and the Board found that, although Claimant previously suffered from high blood pressure, the aggravation of Claimant s condition that resulted in his disqualification from work is fully compensable. Galbreath. Thus, because the record evidence establishes that Claimant suffered a physical injury as a result of work-related psychic stimuli, the Board properly affirmed the WCJ s grant of Claimant s claim petition regarding his uncontrolled hypertension. Accordingly, we affirm. PATRICIA A. McCULLOUGH, Judge 15

16 IN THE COMMONWEALTH COURT OF PENNSYLVANIA SEPTA and CompServices, Inc., : Petitioners : : No C.D v. : : Workers Compensation Appeal : Board (Pankowicz), : Respondent : ORDER AND NOW, this 29 th day of May, 2014, the October 23, 2013 order of the Workers Compensation Appeal Board is affirmed. PATRICIA A. McCULLOUGH, Judge