P. Lech v. WCAB (Hilton Reservation) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Peggy Lech, Petitioner v. Workers Compensation Appeal Board (Hilton Reservation), Respondent BEFORE: : : : : No. 1571 C.D. 2007 : Submitted: December 14, 2007 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: January 16, 2008 Peggy Lech (Claimant) appeals from an order of the Workers Compensation Appeal Board (Board) affirming a decision of the Workers Compensation Judge (WCJ) that did not address a letter amendment to her petition to review a notice of compensation payable (NCP) seeking to expand the description of her work injury to include post-concussive syndrome. Claimant worked for Hilton Reservation (Employer) as a reservation sales specialist. On December 16, 2002, Claimant sustained a work-related injury when she slipped on an icy portion of Employer s parking lot and struck the left side of her head on a car door sustaining a concussion. Employer accepted the injury by way of an NCP which described it as a strain/sprain and headaches, and that the back, neck and head were the affected parts of her body. On September 10, 2004, Employer filed a termination petition alleging that Claimant had fully recovered from her work injuries. Claimant denied all allegations in the termination petition and on December 30, 2004, filed a review petition seeking to expand the description of the injuries in the NCP to include disc herniations at the cervical and lumbar levels and depression. Both petitions were assigned to a WCJ. On December 17, 2004, Employer took the deposition testimony of Adnan Zawawi, M.D. (Dr. Zawawi) in support of its termination petition.1 Claimant also obtained the deposition testimony of Leroy Pelicci, M.D. (Dr. Pelicci) on January 28, 2005, and William H. Jeffreys, M.D. (Dr. Jeffreys) on February 8, 2005, to establish that she suffered from the additional injuries listed in the review petition. After those depositions were taken but prior to the hearing on her review petition, Claimant submitted a letter to the WCJ on February 11, 2005, requesting that her petition be amended to include post-concussive syndrome.2 This letter and its request to amend Claimant s review petition is the subject of the instant appeal. 1 Employer also obtained the deposition of another medical expert, Gladys S. Fenichel, M.D. (Dr. Fenichel). However, it was taken on January 24, 2006, after the depositions of Drs. Zawawi, Pelicci and Jeffreys, as well as when Claimant s informal letter sought to amend her review petition. 2 This letter provided, We filed a Review Petition to include depression. We d like to clarify that we are filing for an aggravation of pre-existing depression. We d also like to amend the Petition to include post-concussive syndrome which is consistent with the medical records provided by the defendant/employer and the testimony of Dr. Jeffreys. (Reproduced Record at 17a.) It was time-stamped by the Department of Labor and Industry on February 23, 2005, and a carbon copy was sent to Employer s counsel. 2 Dr. Pelicci, board certified in neurology and pain management, testified that Claimant s neck problems and disc herniation resulted from the work injury, were traumatically induced, and unrelated to a prior whiplash injury she had sustained. Addressing her depression, Dr. Pelicci testified that the trauma resulting from her injury caused a flare-up in her depression, and stated that she was not on anti-depressants six to eight months before her injury, but following the injury, she needed them again. He further explained that Claimant s depression was complicated because she had struck her head, and when concussions had persistent symptomatology, in [Claimant s] case the headaches, that would fall into ¦a neurological category of post-concussion syndrome. (Reproduced Record at 29a.) Dr. Pelicci stated that people affected by the post-concussive syndrome experience psychological concomitants, symptomatology. Id. changes in personality, [and] depressive He opined that her depression and cognitive problems, including her headaches, inability to concentrate and memory loss, were causally related to the work injury. Also testifying on Claimant s behalf, Dr. Jeffreys, a board certified neurologist, stated that he first saw Claimant after her work injury on March 24, 2003. Before her injury and that visit, Dr. Jeffreys treated Claimant in August 2002 for a retractable migraine headache and acknowledged that she was in her usual state of health with moderately severe headaches until the December 12, 2002 injury. He believed that the work injury was an aggravating factor of her migraines rather than a causal factor, and that these migraines and her depression were pre-existing problems. Dr. Jeffreys testified that at her most recent visit, she complained of cervical and low back pain. When questioned about post-concussive syndrome, he 3 described the disorder as a constellation of signs and symptoms that people get after a significant blow to the head, with or without unconsciousness, including headache, depression, somatization, complaints of various pain and numbness, tingling, difficulty concentrating with their memory. (Reproduced Record at 85a.) Dr. Jeffreys opined that Claimant s symptoms were consistent with post-concussive syndrome, and that it was the regional trauma to the back of her head suffered on December 12, 2002, which served as an aggravating factor to that disorder. He opined that she had not completely recovered from her injury, was unable to perform her job as a reservation sales specialist, and was totally disabled by her headaches and depression. To establish that Claimant had fully recovered from her work injury, Dr. Zawawi, board certified in physical medicine and neurology, testified that after taking a history of Claimant and examining her, he found no evidence of a major depressive syndrome and concluded that she was not disabled by her depression. Dr. Zawawi stated that Claimant possessed no objective evidence of weakness, atrophy, sensory findings or loss of reflexes which would indicate a cervical disorder. Similarly, he stated that she lacked clinical evidence to support that her disc herniation resulted from her injury even if it showed up on an MRI report and EMG performed after the accident. Dr. Zawawi explained that Claimant was involved in an automobile accident and had suffered whiplash prior to her work injury and, as a result, he could not relate the findings of the MRI report and EMG to the work injury. Because nothing in her physical examination demonstrated that she still suffered from any work-related injury, Dr. Zawawi opined that Claimant had fully recovered and was able to return to work. 4 Employer also offered the testimony of Dr. Fenichel, a board certified psychiatrist, to rebut claims that the work injury was the source of Claimant s depression. In reviewing her medical records, Dr. Fenichel stated that before Claimant s work injury, her former physicians had removed her from work due to headaches, back problems and depressive disorders. After a series of evaluations to determine whether Claimant suffered from a psychiatric disorder and to analyze her mental status, Dr. Fenichel concluded that Claimant possessed a personality disorder causing emotional instability that was neither triggered by nor aggravated by the work injury. Because Claimant had taken anti-depressants around the time of the accident, Dr. Fenichel opined that her pre-existing depression was not aggravated by the injury. Dr. Fenichel also opined that Claimant had returned to her pre-injury baseline with respect to any psychiatric symptoms and that she made a full recovery from any psychiatric symptoms that could be related to the work injury at the time of her evaluations. Determining Dr. Zawawi s testimony that Claimant had fully recovered from her work injury to be incredible, the WCJ found that Employer had not met its burden to sustain its termination petition.3 In particular, the WCJ noted that Dr. Zawawi did not adequately explain how Claimant had completely recovered but still possessed ongoing complaints and symptomatology secondary to her work-related injury for those conditions since the onset of her work-related injury and continuing. (Reproduced Record at 383a.) Conversely, he accepted Dr. Pelicci and Dr. Jeffreys 3 In a proceeding involving a termination petition, the employer bears the burden of establishing that the claimant has fully recovered from his or her work-related injury. Udvari v. Workmen s Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). 5 testimonies that Claimant continued to suffer from her originally recognized work injuries. Employer s termination petition was denied, and it did not appeal this determination. With regard to Claimant s review petition, acknowledging that she had an extensive history of treatment for headaches and depression, the WCJ rejected the testimonies of Dr. Pelicci and Dr. Jeffreys to the extent that it established that Claimant suffered from work-related headaches or that she had aggravated a preexisting depressive condition. Their testimony that the work injury had triggered herniated discs was similarly rejected. The WCJ credited Dr. Zawawi s opinion that the work injury did not cause Claimant s depression and herniated discs. Additionally, he accepted Dr. Fenichel s testimony which identified that Claimant had a pre-existing depressive condition that was neither produced nor aggravated by her accident. Because Claimant was unable to prove that she suffered from the additional work injuries of depression and herniated discs, the WCJ denied her review petition.4 However, nowhere in the WCJ s decision did he address Claimant s amendment to her review petition adding post-concussive syndrome nor were there any findings as to the credibility or weight to be given to the medical opinions offered by Claimant with regard to this disorder. Claimant appealed the WCJ s determination to the Board contending, among other issues, that the WCJ erred in failing to address the amendment to her review petition to include post-concussive syndrome. Rejecting this argument, the 4 Claimant had also filed a penalty petition, but it was withdrawn before the WCJ. 6 Board found that her original review petition did not include post-concussive syndrome as an additional injury and that there was no request in the record that the petition be amended to include this injury. It found that the WCJ did not err in failing to address post-concussive syndrome and affirmed his decision in its entirety. This appeal by Claimant followed.5 The sole issue Claimant raises on appeal is whether the Board erred in concluding that her review petition had not been amended to include post-concussive syndrome. She contends that in his decision, the WCJ acknowledged her February 11, 2005 letter as an exhibit (Reproduced Record at 379a), and that it should have effectively amended her original petition. Employer counters that Claimant did not make any formal requests before the WCJ to amend her review petition to include post-concussive syndrome, and the informal February 11, 2005 letter was insufficient to amend her petition. It also argues that the letter did not provide it with sufficient notice of the injury so that it could deny the allegation or cross-examine Claimant s medical experts with regard to the disorder at the depositions taken prior to February 11, 2005. In a workers compensation proceeding, a party has the right to amend a pleading at any time during the proceeding before the WCJ unless the opposing party is prejudiced by the amendment. 34 Pa. Code §131.35(a). Claimant sought to amend 5 Our scope of review of the Board s decision is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Schemmer v. Workers Compensation Appeal Board (U.S. Steel), 833 A.2d 276 (Pa. Cmwlth. 2003). 7 her review petition via the February 11, 2005 letter after her medical experts were deposed but before the hearing on her petition. However, the letter was never addressed by the WCJ as to whether he was permitting the amendment.6 Because the WCJ should have addressed whether the letter amended Claimant s review petition, whether the amendment prejudiced Employer, and, if needed, whether Claimant sustained work-related post-concussive syndrome, we vacate the Board s order and remand the matter to the WCJ for a determination in accordance with the attached order. __________________________________ DAN PELLEGRINI, JUDGE 6 Rules governing pleadings in workers compensation case are liberally construed and do not have to comport with the same rigors as the Pennsylvania Rules of Civil Procedure. Brehm v. Workers Compensation Appeal Board (Hygienic Sanitation Company), 782 A.2d 1077 (Pa. Cmwlth. 2001). 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Peggy Lech, : : : : No. 1571 C.D. 2007 : : : : Petitioner v. Workers Compensation Appeal Board (Hilton Reservation), Respondent ORDER AND NOW, this 16th day of January, 2008, the order of the Workers Compensation Appeal Board, No. A06-2189, is vacated, and the matter is remanded for determinations of (1) whether the February 11, 2005 letter effectively amended Claimant s review petition; (2) whether the amendment prejudiced Employer; and (3) if needed, whether Claimant established that she sustained work-related postconcussive syndrome. Jurisdiction relinquished. __________________________________ DAN PELLEGRINI, JUDGE
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