Lancaster General Hospital v. Workers' Compensation Appeal Board

47 A.3d 831, 616 Pa. 333, 2012 WL 1922603, 2012 Pa. LEXIS 1236
CourtSupreme Court of Pennsylvania
DecidedMay 29, 2012
StatusPublished
Cited by6 cases

This text of 47 A.3d 831 (Lancaster General Hospital v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lancaster General Hospital v. Workers' Compensation Appeal Board, 47 A.3d 831, 616 Pa. 333, 2012 WL 1922603, 2012 Pa. LEXIS 1236 (Pa. 2012).

Opinions

OPINION

Justice TODD.

In this appeal by allowance, we address the proper method of calculating an hourly-wage claimant’s average weekly wage under Section 309 of the Workers’ Compensation Act (“the Act”),1 77 P.S. § 582, where the specific loss claimant suffers an initial incident, changes employers, and later suffers a work-related injury caused by the initial incident. After careful review, we affirm the decision of the Commonwealth Court.

Janice Weber-Brown (“Claimant”) worked for Appellant Lancaster General Hospital (“Lancaster General”) as a licensed practical nurse beginning in 1979. Sometime during 1979 or early 1980,2 [833]*833Claimant was cleaning the tracheotomy of a patient who was infected with the herpes simplex virus (“HSV”). While Claimant was cleaning the patient’s tracheotomy, the patient coughed, causing sputum to spray in Claimant’s left eye. Claimant proceeded immediately to Lancaster General’s emergency room, where she had her eye flushed, received antibiotics, and was told to see her eye doctor. Approximately two weeks after the incident, Claimant’s eye became swollen and infected, and Claimant believed she contracted HSV. Her symptoms subsided with treatment, however, and Claimant did not miss any work with Lancaster General as a result of her eye problems.

Claimant left the employ of Lancaster General in 1985 for reasons unrelated to the eye incident. At that time, she earned $8 per hour and worked full-time. In the years following her departure from Lancaster General, Claimant’s eye became infected several more times. Each time, her symptoms subsided with treatment, and Claimant did not miss any work with her other employers due to her eye infections. In October 2006, however, while Claimant was working for the Heart Group, Claimant’s eye again became infected and, this time, her infection did not respond to treatment. By February 2007, Claimant lost the vision in her left eye, and, in May 2007, she underwent a cornea transplant. Sadly, the transplant did not improve her vision, and, as a result of her blindness, she was not able to return to work. At that time, Claimant earned $21 per hour working for the Heart Group on a part-time basis.

In March 2007, Claimant sent Lancaster General a letter detailing her employment history there, the 1979 incident with the tracheotomy patient, her history of eye infections, and her recent blindness. Ultimately, following the unsuccessful cornea transplant and remaining unable to return to work, Claimant filed a workers’ compensation petition claiming the loss of use of her left eye, as of March 8, 2007,3 due to contracting HSV while working for Lancaster General. Lancaster General denied the allegations. Before Workers’ Compensation Judge Robert Benischeck (“WCJ”), Claimant presented the testimony of Dr. Barton Halpern, who testified that he began treating Claimant in 1985 and that Claimant sustained' a dense vascularized corneal scar related to chronic inflammation from her contraction of HSV. Dr. Hal-pern testified that there was nothing wrong with Claimant’s corneal transplant, but that the infection can affect other tissues in the eye beyond the cornea, which can lead to blindness, and that her injury was the result of this HSV infection. Lancaster General presented the testimony of Dr. Kristen Hammersmith, who agreed with much of Dr. Halpern’s testimony, but believed it was merely possible, but not likely, that the incident with the tracheotomy patient was the actual source of Claimant’s infections. Dr. Hammersmith testified that Claimant’s report of poor vision following the incident, absent any redness or vesicles in the skin, was more typical of a secondary infection rather than an initial exposure to HSV.

The WCJ credited the testimony offered by Claimant and granted her specific loss claim petition. The WCJ determined Claimant suffered a work-related injury on May 16, 2007, the date on which her doctor [834]*834informed her of her likely permanent blindness and of her inability to return to work. The WCJ also found her work-related injury stemmed from the incident with the tracheotomy patient, as that incident led to her contracting HSV, which, in turn, caused her blindness almost 30 years later. The WCJ noted Claimant’s pay was determined by the hour, and, applying Section 309 of the Act, which we discuss in detail infra, the WCJ calculated Claimant’s benefits as $389.50 per week for 275 weeks, a sum calculated based on Claimant’s 2007 wages with the Heart Group.4

Lancaster General appealed to the Workers’ Compensation Appeal Board (“WCAB”), which affirmed. The WCAB concluded Dr. Halpern’s testimony supported the conclusion that Claimant’s injury was due to the 1979 incident in which she contracted HSV while an employee of Lancaster General. Further, based on our decision in J.G. Furniture Div./Burlington v. W.C.A.B. (Kneller), 595 Pa. 60, 938 A.2d 233 (2007), the WCAB determined the WCJ correctly calculated Claimant’s average weekly wage by using her wages at the time of her injury, which, it agreed, was in May 2007. Therefore, concluding there was substantial evidence supporting the WCJ’s decision, the WCAB affirmed.

Lancaster General appealed to the Commonwealth Court, which affirmed the WCAB. Lancaster General Hospital v. W.C.A.B. (Weber-Brown), 987 A.2d 174 (Pa.Cmwlth.2009). The court rejected Lancaster General’s argument that Section 309(d.1) of the Act governed the calculation of Claimant’s average weekly wage and that Claimant’s wages with Lancaster General, not the Heart Group, control, con-eluding that subsection did not provide the proper test. Instead, the court observed the Act defines wages in terms of a claimant’s weekly pay at the time of the injury. Id. at 180. The court went on to note that, in specific loss cases, the date of the injury is the date when the claimant is informed by a doctor of the “loss of use of the member or faculty for ‘all practical intents and purposes’ and that the injury is job related in nature.” Id. As support, the court relied heavily on its own decision in J.G. Furniture Div./Burlington v. W.C.A.B. (Kneller), 862 A.2d 689 (Pa. Cmwlth.2005) (holding that, where the claimant suffered an initial injury to his finger, which later led to amputation, the claimant’s average weekly wage should have been based on his wages earned at the time of the amputation because that was the date of his work-related injury) aff'd, 595 Pa. 60, 938 A.2d 233 (2007). Applying its decision in J.G. Furniture to the instant matter, the court concluded the WCJ correctly fixed Claimant’s date of injury as May 16, 2007, and, thus, that date was the proper one on which to base the calculation of Claimant’s average weekly wage for workers’ compensation purposes. Weber-Brown, 987 A.2d at 180-81.

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47 A.3d 831, 616 Pa. 333, 2012 WL 1922603, 2012 Pa. LEXIS 1236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lancaster-general-hospital-v-workers-compensation-appeal-board-pa-2012.