Fink v. Workmen's Compensation Appeal Board

678 A.2d 853, 1996 Pa. Commw. LEXIS 274
CourtCommonwealth Court of Pennsylvania
DecidedJune 26, 1996
StatusPublished
Cited by9 cases

This text of 678 A.2d 853 (Fink v. Workmen's 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
Fink v. Workmen's Compensation Appeal Board, 678 A.2d 853, 1996 Pa. Commw. LEXIS 274 (Pa. Ct. App. 1996).

Opinion

KELLEY, Judge.

Dolores Fink (claimant) appeals from an order of the Workmen’s Compensation Appeal Board which affirmed the decision of a workers’ compensation judge (WCJ) denying her claim petition for benefits under section 301(c)(1) of The Pennsylvania Workmen’s Compensation Act (Act).1 We reverse.

Claimant was employed by Walbridge Corporation (employer) for sixteen years as a porcelain spray enamel painter. On April 26, 1990, she began experiencing severe chest pain and breathing difficulty. As a result, she contacted her family physician. She was advised to go to the St. Clair Hospital emergency room where she was treated, given prescriptions and released.

On April 30, 1990, claimant returned to work and advised her supervisory personnel that her condition was possibly work related. On and after May 7, 1990, claimant began to experience breathing difficulty again, and after May 9, 1990, she worked an average of four hours per day. Claimant became unable to work for employer on May 16,1990.

On November 13, 1990, she filed a claim petition for the receipt of workers’ compensation benefits. On November 27, 1990, the petition was assigned to a WCJ.

On January 21, 1994, after hearings and the submission of evidence, the WCJ issued a decision denying claimant’s claim petition for benefits. In the decision, the WCJ made the following relevant findings of fact:

1. [Claimant] filed a claim petition against [employer] and its workers’ compensation insurance carrier ... alleging she sustained a work related injury while in the course of her employment with [employer] as a porcelain enamel spray painter. More specifically, claimant alleges that as a result of exposure to paint fumes on April 26, 1990, she became temporarily and totally disabled as of May 16,1990; and that her disability has continued to the present, with some modification as a result of subsequent employment. [Employer] filed a timely, responsive answer denying the material petition allegations.
2. Claimant credibly testified that on April 26, 1990 she began experiencing [855]*855severe chest pain and breathing difficulty. She contacted her family doctor and was advised to go to the St. Clair Hospital emergency room, where she was treated, given prescriptions and released.
3. Claimant returned to work on April 30, 1990 and that week advised supervisory personnel that her condition was possibly work related_ Subsequent follow-up with her family doctor led to a referral to David A. Celko, M.D. At the time of his testimony on her behalf, Dr. Celko was board certified in internal medicine and board eligible in pulmonary disease.
4. On and after May 7, 1990 claimant again began experiencing breathing difficulty, and after May 9th she worked an average of four hours per day. She last worked for [employer] on May 16, 1990. Claimant’s testimony infers she was released for health reasons, given approximately ten days vacation pay and never called back to work. At the time of her initial testimony she had obtained part-time employment elsewhere....
5. At the request of [employer], claimant was examined on December 31, 1990 by Murray Sachs, M.D., who is board certified in internal medicine with a subspe-cialty in pulmonary medicine. At the time of his testimony he was director of Shadyside Hospital’s pulmonary division and respiratory services, and teaching pulmonary medicine to medical students.
6. The undersigned finds the medical evidence of record supports the [employer]’s denial of the claim, finding the following, inter alia, significant in that regard:
A. The record clearly shows that claimant has a history of severe chronic obstructive pulmonary disease secondary to cigarette smoking and bronchial asthma. The asthma is intrinsic, i.e., it is allergic and the source of the condition is unknown. Dr. Sachs further found the presence of emphysema, also secondary to her smoking habit.
B. Dr. Celko, who first examined claimant on May 23, 1990 or seven days after the alleged onset of disability, further opined claimant was disabled from performing her job duties as a spray painter as a result of her bronchial asthma. He prescribed no specific medication and in his followup visit of June 6, 1990, did not start her on any specific therapy. After that, she was asymptomatic.
C. Drs. Celko and Sachs agree that although the April 26, 1990 work incident aggravated her underlying condition, she was not impaired for more than seven days and completely recovered from its residual effect.
D. Claimant conceded she has a history of being a heavy smoker and breathing difficulty_ (Dr. Sachs found her to have a 40 to 60 pack year smoking history.) She advised the physicians that she had experienced shortness of breath for three years and chest pain for two years prior to the alleged injury incident.
E. Both doctors agree that claimant should not return to her job as a porcelain enamel spray painter, not because of her work exposure, but rather because it would exacerbate her underlying, non-work related chronic obstructive lung disease, secondary to her smoking history.
7.It is found as fact that although claimant sustained a work related injury on April 26, 1990 in the nature of an aggravation of her underlying chronic obstructive lung disease as a result of exposure to paint fumes, she completely recovered from the effects of the injury within seven days; furthermore, that any residual disability present after the seven days elapsed was a result of her underlying condition; and therefore claimant has not sustained a compensable injury.

WCJ Decision, pp. 2-4.

Based on the foregoing, the WCJ made the following relevant conclusions of law:

2. Claimant has failed to meet her burden of proving that she sustained a com-pensable work related injury on April 26, 1990; more specifically that the [856]*856aggravation of her underlying condition continued for a period exceeding seven days.

On February 1, 1994, claimant filed an appeal of the WCJ’s decision with the board. On September 13, 1994, the board issued an order affirming the WCJ’s decision. The board’s opinion in support of its order states, in pertinent part, that:

If Claimant has a pre-existing condition which is aggravated by her work causing disability but the aggravation totally resolves so that Claimant is no worse than before the aggravation except Claimant cannot return to the same work conditions, her benefits are not appropriate.... The logic behind this rule of law is that Claimant’s work has nothing to do with Claimant’s inability to work or limitation in what Claimant can do. The problem lies solely with Claimant’s pre-existing condition. Claimant’s pre-existing condition prevents Claimant from doing the work she did with [employer].

Board Opinion, p. 2. Claimant then filed the instant appeal.

The sole issue presented in the instant appeal is whether the board erred in affirming the WCJ’s decision denying the award of workers’ compensation benefits because claimant has failed to show that she sustained a compensable work related injury.

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678 A.2d 853, 1996 Pa. Commw. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fink-v-workmens-compensation-appeal-board-pacommwct-1996.