IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kimberly Evasew, : Petitioner : : v. : : Workers' Compensation : Appeal Board (Great : Valley School District), : 1542 C.D Respondent : Submitted: February 27, 2015 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: June 5, 2015 Kimberly Evasew (Claimant) petitions for review of a Workers Compensation Appeal Board (Board) Order which affirmed the Workers Compensation Judge s (WCJ) denial of Claimant s Claim and Penalty Petitions. I. Background. On September 14, 2010, Claimant filed a Claim Petition and alleged a work-related injury and/or occupational disease which resulted from mold exposure that occurred on October 19, On the same date, Claimant also filed a Penalty Petition and alleged that Great Valley School District (Employer) violated the Workers Compensation Act (Act) 1 when it failed to file Bureau documents or make compensation payment within twenty-one days of the notice of injury. 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ;

2 allegations. Employer filed Answers to both Petitions and denied all material The Petitions were consolidated for purposes of hearing and decision. Claimant was employed by Employer as an art teacher since August of 1992 and received an annual salary of $67,000. Notes of Testimony, November 3, 2010, (N.T. 11/3/10) at 4-5; Reproduced Record (R.R.) at 70a-71a. On October 19, 2007, Claimant experienced nausea and headaches and sought treatment from Dr. Susan Stitt. Claimant then sought additional treatment from Dr. Sheth 2, who prescribed allergy and asthma testing, which came back negative. N.T. 11/3/10 at 6-7; R.R. at 72a-73a. In August of 2009, Dr. Sheth suggested Claimant do a Methacholine challenge to check for environmental factors, which Claimant failed. N.T. 11/3/10 at 8; R.R. at 74a. In September of 2009, Claimant suffered from breathlessness, coughing fits, voice loss, nausea, foot pain and vertigo. N.T. 11/3/10 at 9-10; R.R. at 75a-76a. Claimant informed Melanie Wilt, the interim superintendent, and Juliet Pennyman (Ms. Pennyman), the school principal, of her symptoms. On November 28, 2009, Claimant went to Pottstown Memorial Medical Center Emergency Room, where a nebulizer treatment was administered and restrictions were given of no exposure to mold. N.T. 11/3/10 at 20; R.R. at 86a. Claimant informed Richard Krumrine (Mr. Krumrine), Supervisor of Buildings and Grounds for Employer, and Ms. Pennyman of her exposure restrictions on November 30, N.T. 11/3/10 at 21-22; R.R. at 87a-88a. Claimant returned to work on December 3, 2009, and used her nebulizer to control 2 Dr. Sheth s first name does not appear to be in the record. 2

3 the return of her symptoms. N.T. 11/3/10 at 22; R.R. at 88a. Claimant did not work from March 18, 2010, to June 3, Claimant treated with Ritchie Shoemaker, M.D., (Dr. Shoemaker) who prescribed re-exposure testing and placed a restriction on Claimant that she avoid being in a water-damaged building. N.T. 11/3/10 at 23; R.R. at 89a. Claimant explained that her work injury caused problems with her breathing and her leg but since not being in that building since September 10, 2010, her symptoms improved. N.T. 11/3/10 at 26-27; R.R. at 92a- 93a. Claimant testified that she returned to work at Sugartown Elementary School on January 4, 2011, for ten days. Notes of Testimony, July 21, 2011, (N.T. 7/21/11) at 7. 3 Claimant suffered the same previous symptoms and asked to be transferred to the General Wayne Elementary School. N.T. 7/21/11 at 7. She worked there for ten days and again asked to be moved because of a water leak. N.T. 7/21/11 at 7-8. Claimant was transferred to Charlestown Elementary School and worked there for ten days then asked to be moved because of mold in the ceiling tiles in the area where she worked. N.T. 7/21/11 at 8. Claimant was transferred to Great Valley Middle School and the Great Valley High School but did not continue to work because she became ill with asthma symptoms. N.T. 7/21/11 at Claimant applied for and was awarded Unemployment Compensation Benefits at a net rate of $ per week. Claimant did not return to work for Employer but is on an unpaid leave of absence. N.T. 7/21/11 at Claimant s July 21, 2011, deposition does not appear in the Reproduced Record. 3

4 Claimant presented the medical testimony of Raymond Kovalski, M.D. (Dr. Kovalski), a pulmonary specialist board-certified in internal medicine. Deposition of Raymond Kovalski, M.D., March 4, 2011, (Dr. Kovalski Deposition) at 3; R.R. at 103a. Dr. Kovalski first saw Claimant on April 26, 2007, and he concluded that she had no clear-cut lung problems. Dr. Kovalski treated Claimant a second time on September 24, 2009, because Claimant had shortness of breath. Dr. Kovalski Deposition at 7-8; R.R. at 107a-108a. Dr. Kovalski performed a physical examination of Claimant and the results were quite normal. Her lungs were clear Dr. Kovalski Deposition at 9; R.R. at 109a. Claimant returned to Dr. Kovalski on November 3, 2009, and she informed him that the room in which she taught tested positive for mold. Dr. Kovalski ordered that Claimant have a chest x-ray and the results were unremarkable and a full pulmonary function test revealed that her lung capacity was somewhat reduced but not in an asthma pattern. Dr. Kovalski Deposition at 10; R.R. at 110a. Dr. Kovalski reviewed the October 7, 2009, environmental testing which confirmed the presence of mold in the art room and opined that this mold could cause a flareup of Claimant s underlying asthmatic condition. Dr. Kovalski Deposition 3/4/11 at 12; R.R. at 112a. Dr. Kovalski opined that the aspergillus in the art room could have caused additional allergic asthmatic responses. Dr. Kovalski doubled Claimant s asthma medicine and advised Claimant to limit time spent in the art room. Dr. Kovalski Deposition at 13; R.R. at 113a. Dr. Kovalski treated Claimant again on November 30, 2009, and the results of Claimant s physical exam were normal. Dr. Kovalski Deposition at 15; R.R. at 115a. Dr. Kovalski changed Claimant s medication and permitted her to return to work the following day. Dr. Kovalski Deposition at 16; R.R. at 116a. On December 7, 2009, Dr. Kovalski 4

5 noted that Claimant s symptoms improved and she should try to limit time spent in the classroom. Dr. Kovalski Deposition at 17-18; R.R. at 117a-118a. Dr. Kovalski treated Claimant on multiple occasions in 2010 and 2011 during which time Claimant attempted to return to work and continually experienced a worsening of her symptoms. Dr. Kovalski Deposition at 18-29; R.R. at 118a-129a. Employer presented the deposition testimony of Scott Manaker, M.D. (Dr. Manaker), a board-certified pulmonary physician, who examined Claimant on February 23, Deposition of Scott Manaker, M.D., October 3, 2011, (Dr. Manaker Deposition) at 13; R.R. at 203a. Dr. Manaker took Claimant s medical history, performed a physical examination and administered a Pulmonary Function Test. Dr. Manaker opined that Claimant has never had asthma and she has no pulmonary condition. Dr. Manaker Deposition at 13-14; R.R. at 203a-204a. Dr. Manaker believed Claimant had no evidence of any mold-cased disease, disorder, condition, illness or injury. Dr. Manaker Deposition at 14; R.R. at 204a. Claimant s respiratory and pulmonary examinations were normal, with no evidence of wheezing, rhonchi or rales. Dr. Manaker Deposition at A pulmonary function test was performed at Dr. Manaker s direction and the results were normal and a reduced expiratory reserve volume that was consistent with Claimant s elevated body weight. Dr. Manaker Deposition at Dr. Manaker opined that Claimant had no occupational or work-related pulmonary or respiratory injury, illness, disease, disorder or condition. Dr. Manaker attributed Claimant s complaints to a combination of obesity, depression and symptom magnification and gastroesophageal reflux. Dr. Manaker Deposition at 38-39; R.R. at 228a- 229a. 5

6 Employer presented the deposition testimony of Todd Allshouse (Mr. Allshouse), a certified environmental hygienist and the director of health and safety services for Compliance Management International. Deposition of Todd Allshouse, September 13, 2011, (Mr. Allshouse Deposition) at 6-7; R.R. at 368a- 369a. Mr. Allshouse was assigned to assess the indoor air quality of the art room located at the K.D. Markley Elementary School. Mr. Allshouse Deposition at 13; R.R. at 375a. Mr. Allshouse opined that the environmental reports issued by Environmental Control Systems in September 2007, October 2009, and March 2010, revealed insignificant interior mold levels that were less than mold levels outside of the building. Mr. Allshouse Deposition at 16; R.R. at 378a. Mr. Allshouse performed another study on September 30, 2010, which revealed minimal levels of mold in the K.D. Markley Elementary School that were less than mold levels outside of the building. Mr. Allshouse Deposition at 23-27; R.R. at 385a-389a. Mr. Allshouse expressed serious concerns about the validity of the home test Claimant administered in June of Mr. Allshouse Deposition at 30-33; R.R. at 392a-395a. Mr. Allshouse also tested the five other schools in Employer s School District. The tests did not reveal any significant biological factors that would contribute to occupant indoor environmental quality concerns. Mr. Allshouse Deposition at 40-51; R.R. at 402a-413a. Employer presented the deposition testimony of Robin Koslo-Stahl (Dr. Koslo-Stahl), Director of Personnel for Employer. Deposition of Robin Koslo-Stahl, M.D., August 25, 2011, (Dr. Koslo-Stahl Deposition) at 6-7. Dr. Koslo-Stahl testified that to her knowledge no other employee or student has complained of illness due to alleged mold exposure besides the Claimant. Dr. 6

7 Koslo-Stahl Deposition at 8-9. In March of 2010, Claimant expressed concern over the presence of mold in her classroom at K.D. Markley Elementary School. Employer offered Claimant a different classroom and a cart to allow her to teach in different classrooms. Dr. Koslo-Stahl Deposition at On June 2, 2010, Dr. Koslo-Stahl saw Claimant at the Great Valley Employee Association retirement dinner but Claimant had not returned to work. Dr. Koslo-Stahl Deposition at 12. Claimant informed Dr. Koslo-Stahl that her condition was miraculously cured and she would return to work without any restrictions on June, 4, Dr. Koslo- Stahl Deposition at 13. In July of 2010 Claimant asked to transfer to a different building and Dr. Koslo-Stahl requested medical documentation supporting this request. In late August, Claimant provided a note issued by Dr. Shoemaker that stated Claimant was not able to continue working at K.D. Markley Elementary. Dr. Koslo-Stahl Deposition at Dr. Koslo-Stahl denied the request to transfer because she disagreed with Dr. Shoemaker s note and it contradicted the release from Dr. Kovalski. Dr. Koslo-Stahl Deposition at Dr. Koslo-Stahl offered Claimant the chance to work in every other school in the School District but Claimant complained that she experienced symptoms and asked to be transferred. Dr. Koslo-Stahl Deposition at Employer presented the deposition testimony of Mr. Krumrine, who testified that there were never problems with the HVAC system in any of the school buildings in Employer s School District. Deposition of Richard Krumrine, August 25, 2011, (Mr. Krumrine Deposition) at 8. An employee complained about a musty odor in her classroom so Mr. Krumrine conducted an air test but the results were not unusual. Additionally, the staff changed the way the carpet was 7

8 cleaned in that particular classroom and there were no further complaints. Mr. Krumrine Deposition at 8-9. A nurse experienced symptoms and asked to have her office tested. This test was also negative and the nurse did not complain again. Mr. Krumrine Deposition at 9. Claimant presented Mr. Krumrine with a home test she administered in the art room. He reviewed the test and noted that Claimant did not properly follow the directions. Mr. Krumrine Deposition at Mr. Krumrine continued to inspect the art room, re-routed and capped the condensate drain, and cleaned the room with Oxine. Mr. Krumrine Deposition at Claimant continued to complain and was given the opportunity to work from a cart in another room but Claimant did not accept the accommodation. Mr. Krumrine Deposition at Employer presented the deposition testimony of Lynelle Fitzmier (Ms. Fitzmier), secretary to Employer s Superintendent. Deposition of Lynelle Fitzmier, August 25, 2011, (Ms. Fitzmier Deposition) at 6. Ms. Fitzmier attempted to schedule a meeting between Claimant and school administrators in September of Ms. Fitzmier Deposition at 7. Claimant could not attend that meeting and was not available to meet at any other proposed dates. Ms. Fitzmier Deposition at 9. On July 11, 2012, the WCJ circulated a final decision and denied Claimant s Claim and Penalty Petitions and dismissed Employer s Physical Examination Petition as moot. The WCJ made the following pertinent findings of fact: 13. I have carefully reviewed the testimony of Todd Allshouse and find it to be credible and worthy of belief. 8

9 Mr. Allshouse was the only environmental expert presented in this matter and his opinions are unrebutted. He provided detailed testimony regarding the test data collected, and supported his testimony with written documentation. His conclusion that Employer s school buildings had minimal levels of mold is consistent with other evidence that Employer s buildings were relatively new, that Employer provided regular maintenance of the buildings, and that there were no complaints of mold from other employees. 14. I have carefully reviewed the record as a whole and find that the medical testimony of Dr. Kovalski is less persuasive than the medical testimony of Dr. Manaker. This credibility determination is based in part on the following: a. Dr. Kovalski had insufficient factual basis for his conclusion that Claimant was exposed to mold while at work. He relied on Claimant s home test which was discredited by Mr. Allshouse. Mr. Allshouse s testimony establishes that the levels of mold at Employer s buildings were not abnormal or unsafe. b. Dr. Kovalski s opinion was not supported [sic] his examinations, which included normal pulmonary and respiratory exams, negative x-rays and a blood test negative for allergic sensitivity to aspergillus. c. Dr. Manaker s opinion is supported by his clinical examination which included normal pulmonary, orthopedic and neurological functions. His opinion is further supported by medical records which indicate that Claimant has a normal respiratory system, other than the effects of obesity. 15. I have carefully reviewed Claimant s testimony and find it to be credible to the extent it supports a finding that Claimant has experienced respiratory symptoms while working for Employer. However, I reject 9

10 Claimant s testimony to the extent that it suggests a causal relationship between her symptoms and workrelated exposure to mold or other airborne toxins. Claimant s testimony in this regard is not supported by the evidence, which establishes that mold levels were not abnormal or unsafe. In addition, the fact that Claimant s symptoms persisted regardless of the change in her work location supports the conclusion that her symptoms were related to something other than the work environment. 16. I have reviewed the testimonies of Dr. Robin Koslo- Stahl, Richard Krumrine, Lynelle Fitzmier, and Marie Wallace and find these witnesses to be credible and worthy of belief. Their testimonies are consistent with one another, and establish Employer s attempt to respond and accommodate Claimant s complaints of disability. Accordingly, these testimonies are accepted as fact. WCJ s Decision, July 11, 2012, Findings of Fact (F.F.) Nos , at Claimant appealed and the Board affirmed. II. Present Controversy. Claimant raises 4 three issues on appeal. First, Claimant contends that the WCJ erred when he failed to issue a reasoned decision with regard to his denial of Claimant s objections to the independent examination, medical testimony, and lay testimony taken outside the required time pursuant to the special rules. Claimant also argues that the WCJ abused his discretion when he denied Claimant s Penalty Petition for Employer s failure to file appropriate Bureau 4 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 10

11 documents. Finally, Claimant argues that the WCJ erred when he admitted the deposition testimony of Mr. Allshouse despite his lack of qualifications as an expert and Employer s failure to timely notify Claimant. A. Whether The WCJ Erred When He Failed To Issue A Reasoned Decision With Regard To His Denial Of Claimant s Objections To The Independent Examination, Medical Testimony, And Lay Testimony Taken Outside The Required Time Pursuant To The Special Rules? Section 422(a) of the Act, 77 P.S. 834, provides that the WCJ shall file 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 decision so that all can determine why and how a particular result was reached. Further, [t]he 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. Daniels v. Workers Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). A decision is reasoned if it allows for adequate review by the appellate courts. A reasoned decision is no more, and no less. Id. In the present case, Claimant argues that Claimant s due process rights were prejudiced by Employer s delays in scheduling the Independent Medical Evaluation (IME) and depositions. Generally, the admission of evidence is committed to the sound discretion of the WCJ. Coyne v. Workers Compensation Appeal Board (Villanova University), 942 A.2d 939 (Pa. Cmwlth. 1998) citing Atkins v. Workers Compensation Appeal Board (Stapley in Germantown), 735 A.2d 196 (Pa. 11

12 Cmwlth. 1999). The WCJ s duty is to resolve all claims in a fair and efficient manner. Sherill v. Workmen s Compensation Appeal Board (School District of Philadelphia), 642 A.2d 245 (Pa. Cmwlth. 1993). In weighing the necessity of this testimony, the WCJ did not abuse his discretion with regard to the Interlocutory Orders that overruled Claimant s objections to the IME and the depositions of Employer s witnesses. Further, Claimant failed to identify how she was prevented from submitting rebuttal testimony to any of the deposition testimony presented by Employer. The WCJ set forth concise findings of fact and adequately explained the bases for his factual findings and credibility determinations which sufficiently support appellate review. This Court is satisfied that the WCJ issued a reasoned decision pursuant to Section 422(a) of the Act, 77 P.S B. Whether The WCJ Abused His Discretion When He Denied Claimant s Penalty Petition For Employer s Alleged Failure To File Appropriate Bureau Documents? Once a workers compensation claimant files a penalty petition, the onus is on claimant to establish a violation of the Act or its rules or regulations, and once that is done, the burden shifts to the employer to prove that it did not violate the Act or its rules. See Shuster v. Workers Compensation Appeal Board (Pennsylvania Human Relations Commission), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000), appeal denied, 781 A.2d 151 (Pa. 2001). The imposition of a penalty in a workers compensation case and the amount of penalty to be imposed are typically left to the sound discretion of a workers compensation judge. See City of 12

13 Philadelphia v. Workers Compensation Appeal Board (Calderazzo), 968 A.2d 841, 850 (Pa. Cmwlth.), appeal denied, 980 A.2d 609 (Pa. 2009). Here, the Board correctly determined: Because we have affirmed the WCJ s denial of Claimant s Claim Petition, we need not address Claimant s arguments regarding the denial of her Penalty Petition. Section 435(d) [5] of the Act provides for penalties based on the amount of compensation awarded. 77 P.S. 991(d). As such, penalties are only allowed if a claimant is awarded any compensation. The WCJ did not abuse his discretion when he denied Claimant s Penalty Petition because Claimant failed to meet her burden of proving that Employer violated the Act when it allegedly did not file appropriate Bureau Documents. C. Whether The WCJ Erred When He Admitted The Deposition Testimony Of Mr. Allshouse Despite His Lack Of Qualifications As An Expert And Employer s Failure To Timely Notify Claimant? The Pennsylvania Rule of Evidence 702 provides as follows: If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. 5 This section was added by the act of February 8, 1972, P.L

14 Claimant argues that Mr. Allshouse was not credible because he was not properly qualified as an expert and his testimony was incompetent. Mr. Allshouse was qualified to testify on the subject at issue by virtue of his knowledge, skill, training, experience, and education. He was capable of providing an opinion relevant to whether the levels of mold in Employer s buildings could have caused Claimant s alleged injuries. The WCJ as the ultimate finder of fact in workers compensation cases has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen s Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 600 A.2d 541 (Pa. 1991). This Court will not disturb a WCJ s finding when those findings are supported by substantial evidence. Nevin Trucking v. Workmen s Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995). Here, Mr. Allshouse was the only environmental expert presented and his opinions were unrebutted. He provided detailed testimony regarding the test data collected, and supported his testimony with written documentation. WCJ s Decision, F.F. No. 13 at 8. Mr. Allshouse s conclusion that Employer s school buildings had minimal levels of mold was consistent with the other evidence 14

15 presented by Employer. This Court will not disturb a WCJ s finding when those findings are supported by substantial evidence. 6 Accordingly, the decision of the Board is affirmed. BERNARD L. McGINLEY, Judge 6 Substantial evidence is relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bethenergy Mines, Inc. v. Workmen s Compensation Appeal Board (Skirpan), 612 A.2d 434 (Pa. 1992). 15

16 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kimberly Evasew, : Petitioner : : v. : : Workers' Compensation : Appeal Board (Great : Valley School District), : 1542 C.D Respondent : O R D E R AND NOW, this 5 th day of June, 2015, the Order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge