School District of Philadelphia v. Workers' Compensation Appeal Board

727 A.2d 1171, 1999 Pa. Commw. LEXIS 55
Commonwealth Court of Pennsylvania·Decided February 5, 1999·Published·Cited by 24 cases

Opinion

FLAHERTY, Judge.

The School District of Philadelphia (Employer) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) which affirmed as modified an order of the Workers’ Compensation Judge (WCJ) that awarded benefits for a closed period to Wileater Lanier (Claimant). We reverse.

Claimant worked for Employer as an aide. In February 1993, while at work, a fire extinguisher exploded, exposing her to fire retardant chemicals, causing her to experience irritation in her eyes and throat which induced coughing. WCJ’s Findings of Fact Nos. 3 and 8. Later on that day, she started having blurred vision, ringing in her ears and headaches. Id. Claimant filed a claim petition in June 1993, alleging that she suffered a work related injury. The Employer filed an answer denying the material allegations. The WCJ conducted hearings at which Claimant presented the testimony of Dr. Ar-dito who diagnosed Claimant with “resolving chemical hypersensitivity reaction to the exposure, an exacerbation of upper respiratory allergies, and chronic depression.” F.F. Nos. 2 and 9. Dr. Ardito opined that Claimant’s chemical hypersensitivity reaction was caused by the chemical exposure at work and *1172 that her allergies and depression were exacerbated by the exposure and consequent trauma. Id.

In opposition to the petition, Employer presented the testimony of Dr. Schwartz, who testified that he examined Claimant on December 3, 1993 and that based upon his exam and review of medical records that Claimant was exposed to monoammonium phosphate. P.F. No. 4. He further opined that as of the date of his examination of Claimant, she was fully recovered from any injury related to her exposure. Id.

Based upon, inter alia, the foregoing evidence, the WCJ found that Claimant sustained her burden of proving a work related injury resulting in disability from March 8, 1993 to September 5, 1993, when she attempted to return to work, and from October 14, 1993, when she left work again, until December 3, 1993. The WCJ granted benefits during these periods but terminated them as of December 3, 1993. In doing so, the WCJ accepted Dr. Schwartz’s opinion that Claimant was fully recovered as of that date.

In it’s brief to this court, Employer presents two issues for our review:

1. Whether Claimant satisfied her burden in a Claim Petition through unequivocal medical evidence that she sustained a work related disability, when the claimant’s medical expert failed to state she was disabled?
2. Whether claimantfs] medical evidence is based upon sufficient factual foundation as to be competent expert opinion testimony regarding claimant’s alleged occupational disease Csic 1 ], when that expert does not know the substance to which claimant was allegedly exposed?

Employer’s brief at p. 3. Appellate review over an order of the Board is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Roadway Express, Inc. v. Worker’s Compensation Appeal Board (Siekierka), 708 A.2d 132 (Pa.Cmwlth.1998).

Initially, Employer correctly asserts that in a claim petition, it is the claimant who bears the burden of proving all the elements necessary to support an award of wage loss benefits, including the duration of the disability. Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). Not only must the claimant in a claim petition establish that the claimant sustained a work related injury but also that such injury resulted in a disability, in the technical sense, as used within the Workers’ Compensation arena, i.e., a loss of earnings or a loss of earning power. See Odd Fellow’s Home v. Workmen’s Compensation Appeal Board (Cook), 144 Pa.Cmwlth. 280, 601 A.2d 465 (1991)(claimant must prove both injury and that the injury resulted in disability); Eljer Industries v. Workers’ Compensation Appeal Board (Evans), 707 A.2d 564, 566 (Pa.Cmwlth.1998)(disability is to be regarded as synonymous with loss of earning power). We have previously noted that much confusion has been engendered by courts not observing the distinction between “injury"’ and “disability” for purposes of workers’ compensation. Volk v. Workmen’s Compensation Appeal Board (Consolidation Coal Co.), 167 Pa.Cmwlth. 75, 647 A.2d 624, 628 n. 6 (“Too often the terms ‘disability’ and ‘injury" are used interchangeably which results in confusion.”).

Employer argues that the Claimant herein did not establish by substantial evidence that her work injuries caused her to be incapable of performing her time of injury job and thus did not prove that her work related injuries were the cause of her loss of earnings or of her earning power.

As an initial matter, we note that in this particular argument, Employer does not appear to be challenging whether there was substantial evidence to support the WCJ’s finding of fact that the Claimant’s work related injuries consisted of 1) a chemical hypersensitivity reaction caused by her chemical exposure at work and 2) an exacerbation of *1173 her pre-existing allergies and 3) an exacerbation of her pre-existing depression. It appears that there is substantial evidence of record to support such findings. See Reproduced Record (R.R.) at pp. 23a-24a wherein Dr. Ardito testified regarding his diagnoses of Claimant and that there was a causal relationship between the fire extinguisher incident in February 1993 and Claimant’s diagnoses. Thus, the causal relationship between the injuries sustained by Claimant and the work incident occurring in February 1993 is not being challenged by Employer in this argument.

However, Employer does complain that there was no medical testimony establishing that these work related injuries resulted in Claimant’s inability to perform her time of injury job or, in other words, caused her to be physically disabled which in turn resulted in her experiencing a loss of earnings or a loss of earning power. Reviewing the record, with special attention to the medical testimony of both Drs. Ardito and Schwartz, we find that we must agree with the Employer. The only medical testimony offered in regards to whether the work related injuries which Claimant sustained resulted in her being incapable of performing her time of injury job and thus causing her to experience a loss of earnings or of earning power was on direct examination, when the following exchange took place between Claimant’s counsel and Dr. Ardito:

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School District of Philadelphia v. Workers' Compensation Appeal Board, 727 A.2d 1171, 1999 Pa. Commw. LEXIS 55 (Pa. Ct. App. 1999).

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