B. Cicioni v. WCAB (Kathy Fessler t/d/b/a Village Floral Design) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Bobbie Cicioni, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Kathy Fessler t/d/b/a Village Floral : Design), : Respondent : BEFORE: No. 1637 C.D. 2007 Submitted: November 30, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: March 10, 2008 Claimant, Bobbie Cicioni, petitions for review of the order of the Workers' Compensation Appeal Board that affirmed the Workers' Compensation Judge's (WCJ) decision to deny Claimant's claim and penalty petitions. Claimant argues that the WCJ erred in denying the petitions and also in failing to award unreasonable contest attorney's fees and litigation costs when she proved an injury during her employment as a floral designer beginning in January 2003 with Kathy Fessler t/d/b/a Village Floral Design (Employer) and working ten to fifteen hours a week. Claimant also worked for Nurse Family Partnership twenty hours a week. On August 11, 2005, Claimant filed a claim petition alleging that she was bitten by Employer's cat on March 20, 2003 and that she gave notice of the injury the same day. Claimant sought disability benefits from May 22, 2003 and a fifty-percent penalty against Employer for its failure to issue a timely notice of compensation payable (NCP) or a notice of compensation denial (NCD). Claimant testified that on March 20, 2003 Employer's cat bit her right index finger in Employer's presence, breaking her skin and drawing some blood; that she immediately told Employer about the incident; that seven to ten days after the incident she developed sporadic pain in her right arm, neck and left arm, swollen lymph nodes and floaters in her eyes; and that she was not exposed to any other cats and had no health problems before March 20, 2003. Claimant stopped working for Employer on May 22, 2003, but she continued to work for Nurse Family until she opened her own flower shop in September or October 2003. Claimant presented medical records from the Geisinger Medical Center and medical reports. In an Emergency Medicine Note dated May 16, 2003, Timothy McGlaughlin, D.O. stated that Claimant complained of joint pain, difficulty opening her jaw and twinges and tingling in her forearms and legs. She indicated that she experienced these symptoms after she was bitten by a baby cat four to five weeks earlier. In his clinic note dated May 20, 2003, Thomas M. Harrington, M.D. stated that Claimant experienced pain in her shoulders and neck and intermittent spasm throughout her body, which lasted only for a few minutes. Dr. D. Andrew Neville of the Clymer Healing Research Center stated in his report that Claimant sought the doctor's care in October 2003 due to symptoms initiated by cat scratch fever, including fatigue, immune system weakness and intestinal candidiasis. Carla Rossi, M.D. treated Claimant briefly in June 2003. In her report dated October 30, 2003, Dr. Rossi stated that Claimant had multiple symptoms and complaints of joint discomfort with paresthesias, including pulsating and pinching sensations throughout her body and burning sensations in the arms and chest, and that Claimant was given multiple courses of antibiotics. Dr. Rossi further stated: 2 Work-up at that time revealed positive Bartonella henselae as well as Bartonella quintana antibodies. Work-up for other infectious etiologies was negative. Patient was subsequently given a course of Biaxin despite an atypical presentation of cat scratch disease, but it was difficult to explain these elevated titers to any other cause and felt this warranted a course of antibiotics. She had follow-up titers for Bartonella that were negative six months after initial titers. Thus, I suspect at some point patient had been exposed to Bartonella and may have been related to this recent cat bite. Certified Record, Employee's Exhibit C-3 (emphasis added). Employer's pastor testified that Claimant complained of joint pain during his two or three visits to the shop between January and May 2003 and that his first conversation with Claimant occurred before March 20, 2003. Dr. James D. Koller, a veterinarian, testified that cat scratch fever is an infection caused by a bacterium known as Bartonella henselae, that those infected with the bacterium have fever, headaches, aches, pains and a rash and that fleas are also "a vector" for the disease. Dr. Koller's Deposition, p. 17; Reproduced Record (R.R.) at 142. In April 2003 Employer's cat was vaccinated for rabies, which had no effect on the bacterium causing cat scratch fever. Employer's cat was euthanized in June 2003 after contracting feline leukemia, which also had no relationship to the bacterium causing cat scratch fever. Employer issued an NCD on September 12, 2005. The WCJ accepted Claimant's testimony as credible, except her testimony that she developed swollen lymph nodes and floaters in her eyes after the cat bite and was incapable of performing her jobs. The WCJ also accepted Employer's testimony to the extent that it was not inconsistent with Claimant's testimony. While finding the testimony of Employer's pastor credible, the WCJ did not accord his testimony much probative weight because of his uncertainty as to the date of his first conversation with Claimant. The WCJ found that Claimant 3 was bitten by Employer's cat on March 20, 2003 in the course of her employment and that she gave timely notice, but he concluded that she presented no competent, credible testimony of disability or loss of earnings from the cat bite. The WCJ accepted Dr. Koller's testimony, except as to Claimant's complaints and symptoms, and he credited Claimant's medical records and reports. The WCJ found no obvious causal relationship between the cat bite and Claimant's complaints and symptoms, stating: [T]he only doctor who specifically addressed the causal relationship between [Claimant's] complaints and symptoms and the cat bite was Dr. Rossi. In that regard, it is noted that in her report dated October 30, 2003, Dr. Rossi was only able to state that the claimant's exposure to Bartonella henselae 'may have been related to this recent cat bite ¦,' an opinion which does not meet the standard for unequivocal medical evidence. WCJ's Decision, Findings of Fact No. 19 (emphasis in original). Because Claimant was not entitled to wage loss or medical benefits, the claim petition was denied. While the WCJ determined that Employer violated Section 406.1 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §717.1, by failing to issue a timely NCP or NCD, the WCJ concluded that a penalty against Employer was inappropriate pursuant to Brutico v. Workers' Compensation Appeal Board (US Airways, Inc.), 866 A.2d 1152 (Pa. Cmwlth. 2004), because Claimant was not entitled to wage loss or medical benefits. Also, Claimant was not entitled to unreasonable contest attorney's fees because Employer established a reasonable basis for its contest, and she was not awarded reimbursement of litigation costs. The Board concluded that Claimant's symptoms were not obviously related to the cat bite, that she failed to establish the causal relationship by unequivocal medical 4 evidence, that the WCJ did not abuse his discretion in failing to assess a penalty and that Claimant was not entitled to unreasonable contest attorney's fees or litigation costs because she was not successful in her petitions.1 Claimant argues that she was not required to present unequivocal medical evidence to establish a causal relationship between the cat bite and her subsequent complaints and symptoms because such relationship was obvious. She asserts that she did not have symptoms of cat scratch fever and was not treated for this condition before the cat bite, that the record did not establish an alternate cause for her cat scratch fever and that she should have been awarded at least medical expenses. Employer's response is that Claimant failed to offer competent, credible medical evidence to establish the requisite causal connection. A claimant has the burden of proving all of the required elements for an award of workers' compensation benefits. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). Where the causal connection between the alleged disability and the work injury is not obvious, the claimant must establish this connection through unequivocal medical evidence. Fotta v. Workmen's Compensation Appeal Board (U.S. Steel/USX Corp. Maple Creek Mine), 534 Pa. 191, 626 A.2d 1144 (1993). An obvious injury "is one that immediately manifests itself while a claimant is in the act of doing the 1 The Court's review is limited to determining whether constitutional rights were violated, an error of law was committed, a practice or procedure of the Board was not followed or the findings of fact are not supported by substantial evidence in the record. Helvetia Coal Co. v. Workers' Compensation Appeal Board (Learn), 913 A.2d 326 (Pa. Cmwlth. 2006). Credibility determinations and evaluation of the weight of evidence are within the province of the WCJ as a fact-finder, and the WCJ may accept or reject the testimony of any witness, including medical testimony, in whole or in part. Canavan v. Workers' Compensation Appeal Board (B & D Mining Co.), 769 A.2d 1250 (Pa. Cmwlth. 2001). 5 kind of work which can cause such an injury." Giant Eagle, Inc. v. Workers' Compensation Appeal Board (Thomas), 725 A.2d 873, 876 (Pa. Cmwlth. 1999). Even "where the work-related nature of the initial injury is obvious, but its relation to ongoing disability may not be, there is a need for more than lay evidence, i.e., for medical evidence." Cromie v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991). When unequivocal medical testimony is necessary to establish a causal relationship, "the medical witness must testify, not that the injury or condition might have or possibly came from the assigned cause, but that in his professional opinion the result in question did come from the assigned cause." Lewis v. Workmen's Compensation Appeal Board, 508 Pa. 360, 365 - 366, 498 A.2d 800, 802 (1985). Medical evidence "which is less than positive or which is based upon possibilities may not constitute legally competent evidence for the purpose of establishing the causal relationship." Id. at 366, 498 A.2d at 802. Claimant testified that she experienced sporadic pain in the arms and neck following the cat bite and that the doctors "were trying to figure out what it was, what was wrong with [her]." N.T., October 27, 2005 Hearing, p. 9; R.R. at 34. In May 2003 Dr. McGlaughlin found no signs of lesion, mark, ecchymosis or erythema in the area of the cat bite, no lymphadenopathy of her axilla and no regional lymphadenopathy. The WCJ rejected Claimant's testimony that she developed swollen lymph nodes and floaters in her eyes after the cat bite, and he found that "the claimant did not begin to develop her complaints and symptoms until some time considerably after being bitten by the employer's cat" and that "her complaints and symptoms were rather diffuse in nature and not all characteristic of the symptoms typically associated with cat scratch fever." 6 WCJ's Decision, Findings of Fact No. 19. The record supports the WCJ's findings and establishes that the causal relationship was not obvious. Dr. Rossi's statements that she suspected that Claimant was exposed to Bartonella henselae "at some point" and that the exposure may have been related to the recent cat bite does not constitute the unequivocal medical testimony needed to establish a causal relationship between the cat bite at work and Claimant's subsequent complaints and symptoms. Claimant conceded that she was capable of performing her regular job with Employer and that she continued to work for Nurse Family after she stopped working for Employer on May 22, 2003. She opened her own flower shop in September or October 2003. The record supports the conclusion that Claimant failed to establish an entitlement to medical or wage loss benefits, and therefore the WCJ's denial of the claim petition must be upheld. Claimant next argues that the WCJ erred in failing to impose a penalty upon Employer for violating Section 406.1 of the Act. Claimant maintains that at a minimum Employer was required to issue a medical-only NCP and that Employer's failure to comply with Section 406.1 resulted in an excessive and unreasonable delay in compensation payment warranting assessment of a fifty-percent penalty against Employer. Section 435(d) of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §991(d), authorizes a WCJ to impose penalties for a violation of the Act. Fearon v. Workers' Compensation Appeal Board (Borough of Ashland), 827 A.2d 539 (Pa. Cmwlth. 2003). The imposition of a penalty and the amount of the penalty to be imposed are left to the sound discretion of the WCJ, and the WCJ's decision will not be overturned absent an abuse of discretion. Id. 7 Section 435(d)(i) of the Act provides that "[e]mployers and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable ¦." (Emphasis added.) The Court has construed the phrase "of the amount awarded" in Section 435(d)(i) as indicating "the legislature's intention to award penalties only when a claimant is awarded benefits." Jaskiewicz v. Workmen's Compensation Appeal Board (James D. Morrisey, Inc.), 651 A.2d 623, 626 (Pa. Cmwlth. 1994). A precondition to the imposition of penalties is a determination that a claimant is entitled to basic workers' compensation benefits. Wyche v. Workers' Compensation Appeal Board (Pimco), 706 A.2d 1297 (Pa. Cmwlth. 1998). Because the WCJ's denial of Claimant's claim petition was proper and no benefits were awarded, there was no " 'measure' against which the WCJ could use to award penalties." Brutico, 866 A.2d at 1156. Relying upon Palmer v. Workers' Compensation Appeal Board (City of Philadelphia), 850 A.2d 72 (Pa. Cmwlth. 2004), Claimant contends that the WCJ erred in denying a penalty on the basis that she was not awarded benefits. In Palmer the claimant received injured-on-duty benefits from the employer in lieu of workers' compensation benefits. In upholding the WCJ's imposition of a $5000penalty upon the employer for unilaterally terminating benefits, the Court reasoned that "[w]hile we will not award penalties 'based upon unknown numbers,' we have imposed penalties on the amount of the underlying compensation already paid even though the claimant received no award of compensation in a final order." Palmer, 850 A.2d at 77 (citing McLaughlin v. Workers' Compensation Appeal Board (St. Francis Country House), 808 A.2d 285 (Pa. Cmwlth. 2002)). In McLaughlin the Court upheld a penalty in the amount of twenty percent of the claimant's previously awarded benefits for a certain period. Unlike the claimants in Palmer and in 8 McLaughlin, Claimant had no previously awarded or paid benefits upon which the WCJ could base a penalty. The WCJ accordingly did not abuse his discretion. The WCJ refused to award unreasonable contest attorney's fees and litigation costs. Claimant continues to argue, however, that Employer's contest was unreasonable because it was aware of the work-related cat bite and had no medical evidence supporting its denial of benefits. Under Section 440(a) of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §996(a), a claimant who is successful in whole or in part in a contested case is entitled to reimbursement of litigation costs and also to an award of attorney's fees unless an employer's contest is reasonably based. Sign Innovation v. Workers' Compensation Appeal Board (Ayers), 937 A.2d 623 (Pa. Cmwlth. 2007). The Court concludes that the WCJ's denial of the claim and penalty petitions must be upheld, and as a result Claimant cannot show that the WCJ erred in failing to find that Employer's contest was unreasonable or in failing to award litigation costs when Claimant was not successful in whole or in part in pursuing her claim. As the Board committed no error in its disposition of this matter, the Court affirms its order. DORIS A. SMITH-RIBNER, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Bobbie Cicioni, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Kathy Fessler t/d/b/a Village Floral : Design), : Respondent : No. 1637 C.D. 2007 ORDER AND NOW, this 10th day of March, 2008, the Court affirms the order of the Workers' Compensation Appeal Board. DORIS A. SMITH-RIBNER, Judge
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