Ferretti v. Workers' Compensation Appeal Board

761 A.2d 203, 2000 Pa. Commw. LEXIS 588, 2000 WL 1576403
CourtCommonwealth Court of Pennsylvania
DecidedOctober 24, 2000
DocketNo. 2853 C.D. 1999
StatusPublished
Cited by1 cases

This text of 761 A.2d 203 (Ferretti v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferretti v. Workers' Compensation Appeal Board, 761 A.2d 203, 2000 Pa. Commw. LEXIS 588, 2000 WL 1576403 (Pa. Ct. App. 2000).

Opinion

FLAHERTY, Judge.

Lois Ferretti (Claimant) petitions for review from an order of the Workers’ Compensation Appeal Board (Board) which affirmed the decision of a Workers’ Compensation Judge (WCJ) that granted the suspension petition filed by the Department of Welfare, Mayview State Hospital (Employer).1 We affirm.

The facts establish that on July 10,1993, Claimant was injured during the course and scope of her employment when she was punched by a patient on the left side of her face while dispensing medication to the patient. Pursuant to a Notice of Compensation Payable (NCP), Employer accepted liability for the physical injuries of left temporomandibular joint syndrome, tympanic membrane rupture and cervical radiculopathy.

On August 24, 1995, Employer, through its workers’ compensation carrier, filed a Suspension petition alleging that as of July 24, 1995, Claimant had sufficiently recovered from her work injury, was able to return to modified duty employment at wages equal to or greater than her pre-injury wage and that Employer had made this work available to Claimant. Claimant filed a timely answer to the petition denying the allegations and alleging that she also suffers headaches, vision problems and post traumatic stress disorder as a result of her work injury.

In support of its petition, Employer presented the testimony of Dr. Joseph Eshle-man who had treated Claimant through the two year period of time after her injury. After treatment and multiple diagnostic studies in conjunction with the treatment, on July 19, 1995, Dr. Eshleman opined in a medical report that Claimant was able to perform approximately six sedentary type activities and released her for full time sedentary work with a ten pound maximum lifting and/or carrying restriction. The WCJ found Dr. Eshleman’s testimony to be persuasive and credible and accepted it as fact.

Employer also provided the testimony of Gloria Bombara-Laux, a Rehabilitation Coordinator who began working with Claimant in May 1994. Ms. Bombara-Laux testifies that while Claimant was initially cooperative in returning to work, Claimant expressed concern that she would not be able to return to work until September 1995. A meeting was scheduled on July 26, 1995 to review a work assignment that incorporated the medical restrictions, but Claimant failed to appear for the meeting. Ms. Bombara-Laux stated that Claimant later informed her that she would not return to work because her physicians had not released her. The WCJ accepted this testimony as credible and as fact.

In further support of its petition, Employer offered the testimony of Margaret Jarosh, Benefits Coordinator and Personnel Analyst for Employer. Ms. Jarosh stated that she thoroughly reviewed a Work Capacity Evaluation of Dr. Eshle-man and that she incorporated medically approved job responsibilities into a July 26, 1995 letter to Claimant. Through this letter Employer offered Claimant full-time modified duty work at wages higher than Claimant’s pre-injury wage, to begin on [205]*205July 30, 1995. The WCJ found this testimony credible and accepted it as fact.

In opposition to Employer’s suspension petition, Claimant testified that her condition did not improve since her work injury and that she was not able to return to work in any capacity. Claimant described her concerns and fears since the time she was injured by the resident. Claimant acknowledged that Dr. Eshleman had been one of her treating physicians, but she disagreed with his release to return to work in July 1995. She also acknowledged that she received the letter from Employer concerning the available modified position and her return to work.

In further support of her opposition to Employer’s petition, Claimant presented the deposition testimony and report of Dr. George McCollum. Dr. McCollum first examined Claimant on July 24, 1995, after Dr. Eshleman had determined that Claimant could return to work. Dr. McCollum acknowledged that none of his office records detailed any physical findings during the course of his examinations, that neurologically Claimant had normal reflexes, strength and sensory testing, that he never confirmed her alleged vision problems and that there was no notation of any cervical spasm in the records. Dr. McCol-lum agreed with Dr. Eshleman’s assessment of Claimant’s physical capacities and further agreed from a physical standpoint that Claimant was capable of engaging in the activities set forth in the reports of Dr. Eshleman and that she was able to perform the job duties outlined in the July 24th letter.

However, Dr. McCollum testified that Claimant was unable to perform the modified duty job responsibilities due to her post traumatic stress disorder. He further acknowledged that he was not actively engaged in the practice of psychiatry or psychology and that the psychiatrist who had evaluated Claimant in September 1995 had recommended that Claimant return to work.

The WCJ concluded that Claimant was able to return to modified duty employment as of July 30, 1995 and, further, that employment within the physical capacities and limitations of Claimant had been made available to Claimant by Employer as of July 30, 1995. The WCJ granted Employer’s petition for a suspension of Claimant’s benefits effective July 30,1995.

Claimant appealed the WCJ’s decision to the Board. By decision dated October 7, 1999, the Board affirmed the order of the WCJ. Claimant’s petition for review to this Court followed.

Claimant raises one issue for our review and that is whether the WCJ and the Board committed reversible error by failing to apply a “physical/mental” analysis in their decisions, in light of Claimant’s physician’s testimony that Claimant suffered from post traumatic stress disorder related to her work injury.2

Before we reach the merits of Claimant’s argument, we must address Employer’s assertion that Claimant waived this argument by failing to raise it before the Board. The law is well settled that issues not raised before the Board are waived and cannot be raised for the first time before this Court. Myers v. Workers’ Compensation Appeal Board (Family Heritage Restaurant), 728 A.2d 1021 (Pa.Cmwlth.1999), petition for allowance of appeal denied, 560 Pa. 714, 743 A.2d 925 (1999). A review of the record indicates that Claimant did raise this argument before the WCJ and the Board. Thus, we cannot say that Claimant waived her argument before this Court.

Claimant essentially argues that in light of Dr. McCollum’s testimony that she suffered from post traumatic stress syndrome [206]*206related to her work injury, that the WCJ and the Board should have applied a “physical/mental analysis” in determining whether Employer was entitled to a suspension of benefits. Claimant argues that Pennsylvania Courts have recognized that a physical injury suffered at work may trigger a mental response that would disable an individual and such a analysis should have been utilized in this case. Without such an analysis Claimant asserts the WCJ’s and the Board’s decisions are incomplete and, therefore, incorrect.

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Bluebook (online)
761 A.2d 203, 2000 Pa. Commw. LEXIS 588, 2000 WL 1576403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferretti-v-workers-compensation-appeal-board-pacommwct-2000.