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JANET FARQUHAR v. WORKMEN'S COMPENSATION APPEAL BOARD (CORNING GLASS WORKS) (07/09/87)

decided: July 9, 1987.

JANET FARQUHAR, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CORNING GLASS WORKS), APPELLEES



Appeal from the Order Dated January 23, 1985 of the Commonwealth Court at Docket No. 1995 C.D. 1983, affirming the Order of the Workmen's Compensation Appeal Board dated June 29, 1983, at No. A-83364.

COUNSEL

Paul J. Leventon, Leventon & Leventon, P.C., Pittsburgh, for appellant.

Raymond F. Keisling, Carnegie, David M. McCloskey, (co-counsel), for Corning Glass Works.

Thomas J. Magrann, Secretary, LeRoy S. Zimmerman, Atty. Gen., Harrisburg, for W.C.A.B.

Nix, C.j., and Hutchinson, Flaherty, Zappala and Papadakos, JJ. Nix, C.j., filed a concurring opinion. Hutchinson, J., filed a concurring opinion. Flaherty, J., filed a concurring and dissenting opinion joined by Zappala and Papadakos, JJ.

Author: Larsen

[ 515 Pa. Page 318]

Opinion ANNOUNCING THE JUDGMENT OF THE COURT

This is an appeal by allowance from an order of the Commonwealth Court which affirmed the order of the Workmen's Compensation Appeal Board which had affirmed a workmen's compensation referee's order denying appellant's petition to reinstate compensation benefits. For the reasons to follow, we will reverse the Commonwealth Court and order the Board to reinstate benefits. With one notable exception, the facts are not in dispute. The record before us discloses the following.

Janet Farquhar, appellant, had been an employee of the Corning Glass Works, appellee, in Charleroi since the summer of 1980. In February, 1981, appellant worked as a screen-maker responsible for manually producing the frames and screens used to make decorative designs for impressions upon appellee's products known as Corning Ware. In making screens and frames, appellant would cut and shape stainless steel mesh, punch holes into the mesh and screw ten to twenty metal screws of various sizes through the mesh into a metal frame, using a screwdriver.

[ 515 Pa. Page 319]

This job also involved strenuous pulling of an overhead lever. The screen-making process was described as employing "a lot of physical labor."

In early February, 1981, appellant experienced pain and swelling in her upper right arm (appellant is right handed) and observed black and blue marks along her arm. On February 4, 1981, appellant complained of these problems to a company nurse, who referred her to the company doctor, Dr. Arthur Paluso, who in turn referred her to Dr. Leslie Morris, an angiologist who specializes in peripheral vascular diseases. Dr. Morris, Chief of the Vascular Clinic at Montefiore Hospital in Pittsburgh, examined appellant on February 6, 1981, ordered an emergency venogram test which revealed a blood clot (an "effort thrombosis" of her right subclavien vein which obstructed the flow of blood), and immediately admitted her to the hospital where she remained until February 21, 1981. During her stay in the hospital and following her discharge, appellant's thrombosis was treated with rest and anti-coagulent medications.

Compensation benefits were paid to appellant beginning on March 9, 1981, pursuant to a notice of compensation payable. Dr. Morris examined appellant on March 6, 17 and 31, 1981, observing continued improvement in appellant's arm, with the swelling reducing and the thrombosis resolving, although she continued to experience some pain in her arm which tired easily. On March 31, 1981, Dr. Morris advised appellant and her employer that she was "fit to return to work on Monday, April 6, 1981, however, not to her former occupation." Specifically, Dr. Morris informed Dr. Paluso that appellant "was permanently unfit for the type of work that she had performed in the screen department, which produced her present problem." Reproduced record (R.) at 73, Deposition Testimony of Dr. Morris at 23.

Appellant returned to work on April 6, 1981 as a screenmaker instructor at an average weekly wage equal to her wage at the time of her injury, and compensation benefits were suspended as of April 16, 1981. In her capacity as screen-maker instructor, appellant instructed several other

[ 515 Pa. Page 320]

    people in how to make screens for the Corning Ware. This job required her to demonstrate the screen-making operation, and therefore required her to perform the same work that had produced the effort thrombosis. On April 10, 1981, appellant experienced a flare-up of her arm injury, including swelling and soreness, and was examined by Dr. Morris who found the veins in her right arm to be slightly more dilated than when last measured on March 31. Dr. Morris advised appellant in no uncertain terms to avoid the strenuous physical labor involved with screen-making, especially screw driving and lever pulling. He also advised her to avoid similar exertions at home and elsewhere, and suggested a very mild exercise regimen (described by the doctor as lifting a very light weight for two minutes, twice a day, but without hyperabducting the arm).

Appellant returned to work the following Monday, again as a screen-maker instructor but in more of a supervisory capacity involving less physical strain and exertion. However, on June 8, 1981, appellant was informed by appellee that there was no longer any need for a screen-making instructor, that the only position available for appellant was that of screen-maker, and that she must either accept this position or be discharged.*fn1 Upon the advice of Dr. Morris, appellant did not accept this position as a screen-maker, and was discharged.

On August 7, 1981, appellant filed a petition seeking reinstatement of compensation and, additionally, seeking penalties and attorney's fees based upon allegations of appellee's bad faith in denying her compensation. Appellee contested the petition, and hearings were conducted before a workmen's compensation referee.

At these hearings, appellant testified in person, as did Dr. Morris' medical assistant who had specifically gone to appellant's place of work and observed her working as a screen-maker. Dr. Morris had been deposed on October 21, 1981, and his deposition testimony was admitted into evidence

[ 515 Pa. Page 321]

    along with numerous medical exhibits and documents. Appellee presented no witnesses, testimony or other evidence at the hearings.

Dr. Morris' deposition testimony included his opinion that there was "true cause and effect" between both incidents of thrombosis and appellant's work as a screen-maker and screen-maker instructor, and this opinion was expressed to a "reasonable degree of medical certainty," and well beyond. R. 71. For example, Dr. Morris stated that "in my opinion, she should never make screens again as long as she lives," and that, without doubt, her effort thrombosis was caused by her work as a screen-maker. R. 80, 93 and 70-71. He further expressed the opinion that, although her symptoms had abated (a venogram on September 22, 1981 showed that the obstruction/occlusion in the affected vein had been resolved), there was "no room for debate" that to return to work as a screen-maker would expose her to great risk of another, potentially more dangerous thrombosis attack,*fn2 and that to perform such work would be like playing Russian Roulette. R. 86-94.

On cross-examination of Dr. Morris at the deposition, counsel for appellee asked a series of questions apparently designed to elicit an opinion that appellant was peculiarly susceptible to developing blood clots and that it was this susceptibility and not her work as a screen-maker which caused the effort thrombosis. R. 119-23 and 135-38. While Dr. Morris did not waiver in his opinion as to causation, and did not accept that appellant had a "peculiar physiological makeup" that caused the thrombosis, R. 121-22 and 135-36, he did state on cross-examination that "she may have what we call a tight thoracic outlet. She may have a little more pressure on the vein when it emerges from the thorax down the arm than you or I would have," and that she should "refrain from activities tending to aggravate that . . . ." R. 136.

[ 515 Pa. Page 322]

On February 9, 1982, the referee dismissed appellant's petition for reinstatement. The referee concluded that although appellant had sustained a work-related injury, she had since returned to work without a loss in earning power and her "total disability has not recurred" since that time. Referee's conclusions of law nos. 1, 3 and 4, Brief for Appellant at 32. These conclusions and denial of compensation were predicated primarily on the referee's 19th finding of fact, which is:

19. The basis for Dr. Morris's testimony that the claimant should not return to her position as a screen maker is his opinion that the claimant should refrain from activities that tend to aggravate some abnormality peculiar to the claimant's system or body structure, because there exists the possibility of another clot developing.

On appeal to the Workmen's Compensation Appeal Board (the Board), the referee's adjudication was upheld. The Board focused on the referee's finding of fact no. 19, and embellished it in affirming the denial of compensation benefits, stating:

On cross examination the doctor essentially testified the original disability was an aggravation of a pre-existing nonwork-related condition which had resolved itself. He did not want her to resume her usual job because of the danger of again aggravating this underlying condition . . . . It is a fair inference to be drawn from Dr. Morris' cross examination that the underlying propensity for developing blood clots is not work-related . . . . This being the situation, the Claimant is not prevented from doing her regular job because of a work injury, but rather because of a nonwork-connected physical condition.

The Commonwealth Court, on appeal, further embellished the referee's finding of fact no. 19, stating (in an unpublished memorandum opinion) that this "is an unusual case in that Claimant suffers from a condition which renders her highly susceptible to injury when she does the job for which

[ 515 Pa. Page 323]

    she was trained." Slip op. at 1, Brief for Appellant at 38. That court then concluded:

It is clear from the record that Claimant's condition, i.e. susceptibility to developing thrombi, is not a result of her work for her Employer, but rather was a pre-existing condition. Claimant's injury however, was a direct product of her work, for which she properly received compensation. Inasmuch as Claimant is perfectly fit to do other work, as evidenced by her teaching prowess, the referee could hardly find that Claimant was totally disabled.

Slip op. at 2-3, Brief for Appellant at 38-39. The Commonwealth Court affirmed the Board.

We granted appellant's petition for allowance of appeal on June 30, 1986. Because there is no support on the record for the referee's finding of fact no. 19, because the referee and Board capriciously disregarded uncontradicted medical testimony and evidence, and because all lower tribunals have committed an egregious error of law, we now reverse.

Justice Hutchinson reiterated the appropriate standard of appellate review in Jasper v. Workmen's Compensation Appeal Board (WCAB), 498 Pa. 263, ...


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