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Janet Little, Dependent of v. Workers' Compensation Appeal

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


July 28, 2011

JANET LITTLE, DEPENDENT OF DAVID LITTLE, DECEASED, PETITIONER
v.
WORKERS' COMPENSATION APPEAL : BOARD (B&L FORD/CHEVROLET), : RESPONDENT :

The opinion of the court was delivered by: P. Kevin Brobson, Judge

Submitted: January 14, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON*fn1

Petitioner Janet Little (Claimant), the surviving spouse of David Little, deceased (Decedent), petitions for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) to deny Claimant's fatal claim petition.*fn2 We affirm. Keeping in mind that the WCJ was considering both a claim petition and a fatal claim petition, we summarize the WCJ's factual findings (Reproduced Record (R.R.) at 61a-62a) as follows. Decedent worked for Employer on October 1, 2005,*fn3 when he sustained an injury to his shoulders. After he sustained that injury, he began to perform light duty work. Decedent continued to perform light duty work until January 13, 2006, when Employer directed him to return to "the floor doing physical labor and his regular job duty."

Decedent continued to perform his regular job duties until January 19, 2006, when Alice Leffler, another employee, gave Decedent a letter and sent Decedent home. The letter informed Decedent that Employer had received a letter from Decedent's attorney indicating that Decedent could not perform any type of manual labor. (R.R. at 32a; Claimant's Ex. C-2.) The letter stated that Employer thought Decedent "would not come back to work unless [Decedent was] physically able. And when you showed up on Monday, I assumed you were able . . . However, your lawyer must think that you are not able. So, rather than risk further injury, I must insist that you receive a doctor's report advising us what type of work you are capable of performing." Decedent obtained a note from Dr. Ronald Abraham, D.O. (Dr. Abraham), indicating that he could not work. Decedent intended to produce the letter to Employer, but before Decedent brought the doctor's excuse to Employer, Ms. Leffler told Decedent, in a telephone conversation, that Decedent did not need to bring the letter to Employer. Rather, Ms. Leffler informed Decedent that he would be receiving a letter from Employer. Decedent received the letter from Employer on Saturday, January 28, 2006. The letter terminated Decedent's employment.*fn4

Following his receipt of the letter and throughout the remainder of that weekend, Decedent and Claimant discussed the ramifications of the termination and its effect on their finances. During that time, Decedent was unable to eat or sleep, and paced the floor reading the letter over and over again. Claimant went to work Monday, January 30, 2006, and received a phone call from Decedent at about 12:00 p.m. Claimant returned home and found Decedent sitting at a table, reading the letter again and again. Decedent ultimately folded the letter, rose from the table, and collapsed to the floor. When emergency personnel arrived at the home, the ambulance driver and police had to pry the letter from Decedent's hand. Neither the medical personnel at the home nor at the hospital were able to revive Decedent, and he died that day.

The WCJ conducted hearings on the claim petition and fatal claim petition, crediting Claimant's testimony, the substance of which is reflected above. Claimant also offered the credited testimony of Decedent's friend, George Klischer, who indicated that he conversed with Decedent the day after Decedent received the letter and observed Decedent crying and upset regarding his termination.*fn5

Claimant also submitted the testimony of two physicians, Dr. Richard P. Bindie, M.D., and Jeffrey S. Fierstein, M.D. Employer submitted the testimony of Dr. David M. Leaman, M.D. The WCJ did not address the testimony of any of these experts, based upon his ultimate legal conclusion that Decedent was not in the course of his employment when he died, and that, therefore, the testimony was not pertinent to the resolution of the legal issues presented. With regard to the fatal claim petition, the WCJ concluded as a matter of law that Claimant had failed to sustain her burden to prove that Decedent died while in the course of employment or while furthering Employer's business. With regard to the claim petition, the WCJ determined that for the purposes of that aspect of Claimant's claims, Decedent was totally disabled as of the last day he worked, January 19, 2006. In his order, the WCJ stated that Claimant was entitled to an award of temporary total disability for the period from January 19, 2006, through January 30, 2006, the latter date, of course, being the date of Decedent's death.

Claimant appealed to the Board, contending that the WCJ had erred in concluding that Claimant had failed to sustain her burden of proof in her fatal claim petition. The Board first observed a line of cases involving employees who had died of heart attacks, noting that although a claimant need not necessarily establish that the death occurred while at work, such a claimant must demonstrate that the death occurred in the course of employment or furtherance of an employer's business. Additionally, the Board reasoned that while a discharge from employment that precipitates a fatal heart attack may be compensable, the facts as determined by the WCJ in this case do not support the grant of Claimant's fatal claim petition, in part, because there was no evidence of abnormal working conditions.

Claimant filed a petition for review with this Court, raising the following issues for review:*fn6 (1) whether the Board imposed an erroneous burden of proof upon Claimant by applying the standards applicable to injuries arising from abnormal working conditions; (2) whether substantial evidence supports the determination that Decedent's death occurred outside the course of employment; and (3) whether the Board erred by basing its decision upon the testimony of a medical expert that was admitted to the record, but which the WCJ deemed irrelevant to his decision and which the WCJ did not consider based upon his legal conclusion that Decedent's death did not occur in the course of his employment.

The law relating to claim petitions involving heart attacks has evolved slowly over the years. Beginning with Krawchuk v. Philadelphia Electric Company, 497 Pa. 115, 439 A.2d 627 (1981), our Supreme Court addressed the burdens that the Pennsylvania Workers' Compensation Act*fn7 (the Act) imposes upon claimants seeking to recover upon such claims. Krawchuk involved a decedent engineer who died of a heart attack at his home. The claimant in that case asserted that excessive strain and pressure arising in the course of employment caused the decedent's heart attack and consequential death. Although the decedent did not die at his employer's place of business, the evidence indicated that duties associated with his employment, including extra work he was required to perform for his job, had created stress for the decedent. The workers' compensation judge (then known as a referee) concluded that the claimant had sustained her burden of proof by submitting credible expert medical opinions that established a direct causal relationship between the work-related stress and the decedent's fatal heart attack.

In considering the matter, our Supreme Court concluded that regardless of the location where an employee sustains a fatal injury, a claimant must still prove the essential elements for recovery under the Act: (1) that the employee's injury arose in the course of employment, and (2) that the injury was related to the employment. Krawchuck, 497 Pa. at 120, 439 A.2d at 630. The Supreme Court stated that "[t]he location [of an injury] should be . . . merely a factor for the [WCJ] to consider." Id. at 124, 423 A.2d at 632. The Supreme Court explained:

Thus, for example, if the victim has a heart attack during the latter part of a several month leave of absence, location might be a very relevant indicator of whether the injury arose in the course of employment; conversely, where the victim has a heart attack in the subway on the way home after a particularly stressful day at work, the location would seem to be a minimal factor. In either case, the referee must determine whether the attack was causally connected to the work, i.e., whether the injury arose in the course of employment and was related thereto.

Id., 439 A.2d at 632 n.2.

Many years later, in Erie Bolt Corporation v. Workers' Compensation Appeal Board (Elderkin) (Erie Bolt), 777 A.2d 1169 (Pa. Cmwlth. 1998), rev'd (per curiam), 562 Pa. 175, 753 A.2d 1289 (2000), this Court affirmed a workers' compensation judge's determination that the stress of being fired was a significant contributing factor to a decedent's fatal heart attack, which occurred approximately one hour after the employer terminated his employment. The Supreme Court reversed our decision in Erie Bolt by a per curiam order, citing the Supreme Court's decision in Davis v. Workmen's Compensation Appeal Board (Swarthmore Borough) (Davis), 561 Pa. 462, 751 A.2d 168 (2000). Davis, however, involved the Supreme Court's analysis of the review appropriate for claimants asserting that they are disabled because of a psychic injury. The Supreme Court concluded that in psychic injury cases, a claimant must establish by objective evidence that the employee suffered a psychic injury and that the injury is not simply a subjective reaction to normal working conditions. A claimant's burden, the Supreme Court concluded, included a demonstration that the events that allegedly gave rise to the compensation claim actually occurred, and also that those events were abnormal. Id. at 479, 751 A.2d at 177.

Following the Supreme Court's decision in Davis, and its per curiam reversal of Erie Bolt by reference to Davis, this Court in U.S. Airways v. Workers' Compensation Appeal Board (Pankyo), 779 A.2d 1233 (Pa. Cmwlth. 2001), rev'd, Pankyo v. Worker's Compensation Appeal Board (U.S. Airways) (Pankyo), 585 Pa. 310, 888 A.2d 724 (2005), reasoned that the Supreme Court in Davis signaled that when a claimant sustains a physical injury such as a heart attack because of a psychic reaction to working conditions, a claimant must establish (1) a causal connection between working conditions and the injury and (2) that the working conditions were abnormal.

Pankyo involved a claimant who sustained a heart attack shortly after a meeting with a supervisor regarding the claimant's absences from work. The discussion between the claimant and his supervisor was heated, and although the claimant seemed satisfied with the outcome of the meeting, he began to experience pain in his back, neck, and shoulders. The claimant's union steward took him to the hospital where medical staff determined that he was suffering from a heart attack.

On appeal from our decision, the question before the Supreme Court in Pankyo was whether this Court had "erroneously required the claimant to establish that his heart attack was due to abnormal working" conditions. Pankyo, 585 Pa. at 319, 888 A.2d at 729. The Supreme Court rejected our reliance upon its holding in Davis and stated that "given the facts in Davis, that case only stands for the proposition that where a claimant suffers a psychic injury with attendant physical symptoms, the claimant must meet the abnormal working relations test." Id. at 322, 888 A.2d at 731.*fn8

The Supreme Court made clear that when a claimant asserts that he sustained a physical injury because of a psychic reaction to working conditions, the abnormal working conditions test does not apply. Rather, a claimant's burden is simply to prove that (1) he is "suffering from an objectively verifiable physical injury; and (2) 'the injury arose in the course of employment and was related thereto.'" Id. at 323, 888 A.2d at 732 (quoting Krawchuk, 497 Pa. at 121, 439 A.2d at 630). Thus, Claimant is correct in asserting that the abnormal working conditions test is not applicable in this case.

The Supreme Court's reflections in Pankyo relating to physical injuries, however, cannot resuscitate the holding in our earlier decision in Erie Bolt, as the Supreme Court did not explain in Pankyo the rationale for its reversal of Erie Bolt. Further, although Erie Bolt is somewhat similar to this case because it involved a claimant who sustained a heart attack contemporaneously with his employer's termination of his employment, the issue this Court addressed in that case is distinct from the primary issue in this case. The primary issue the employer raised in Erie Bolt was whether substantial evidence supported the workers' compensation judge's determination that a causal connection existed between the stress of being fired and the claimant's heart attack. The courts did not consider the question of whether the claimant was injured in the course of employment when his heart attack occurred essentially at the moment of termination. The distinct factual scenario in this case, where Decedent received the termination letter on January 28, 2006, but did not suffer his heart attack until January 30, 2006, presents a different question for review.

In this case, the WCJ made inconsistent factual findings regarding the end date of Decedent's employment. Finding of Fact No. 1 suggests the WCJ determined that January 30, 2006 (the date Decedent died) was a pertinent date for the purpose of establishing that an employment relationship existed. In apparent conflict with that determination, the WCJ also determined in Finding of Fact No. 2 that the letter Decedent received on January 28, 2006, terminated his employment. We view this discrepancy as reflecting the fact that Claimant filed two distinct claim petitions: (1) one claim seeking total disability benefits; and (2) another claim seeking fatal claim benefits. If Decedent had not died, but instead had filed only a single claim petition seeking total disability benefits, Decedent would have been entitled to benefits beyond the date of his termination.*fn9 The WCJ, therefore, had reason to determine that, for the purpose of analyzing the period of the disability claim petition, the date of Decedent's death on January 30, 2006, was pertinent, because it identifies the date upon which disability benefits legally could end. This reasonably explains what appears to be an inconsistency in the WCJ's fact finding. With that matter resolved, the question we must focus on is whether Decedent was in the course of employment when he died.

Focusing on the fatal claim petition only, we begin by observing that employers may have legitimate reasons for terminating an employee that are unrelated to a potential workers' compensation claim. This case presents the larger policy question of whether the General Assembly intended employers to bear the risk of a compensable injury that may follow such termination and is a consequence of the termination decision, even when that consequence bears no relationship to employment responsibilities and does not occur until after the cessation of the employment relationship.

In Krawchuk, our Supreme Court confirmed the referee's determinations that the stress and exertion that ultimately caused that decedent's fatal heart attack arose from and were related to decedent's employment. Additionally, the decedent in that case was still employed when he suffered his fatal heart attack. In a sense, this case involves an employee whose fatal injury was causally related to his unemployment and the disconnection of his employment relationship. The medical evidence that the parties submitted indicates that the sole focus of the medical testimony related to whether the termination itself caused Decedent to suffer from stress that ultimately caused his fatal heart attack. There is no suggestion in the testimony that any stress at the work place was a contributing factor in Decedent's heart attack or precipitated his heart attack.

Although an injury that occurs in the workplace need not have a causal relationship to work activities, Ruhl v. Workmen's Compensation Appeal Board (Mac-It Parts, Inc.), 611 A.2d 327 (Pa. Cmwlth. 1991), appeal denied, 533 Pa. 620, 619 A.2d 701 (1993),*fn10 when an injury occurs off-premises, the relationship between an injury and employment activities must be more clear. The Supreme Court confirmed this notion by observing in Krawchuk that, "location should be, therefore, merely a factor for the [workers' compensation judge]" in considering whether an employee has sustained an injury "arising" in the course of employment and related to employment. Krawchuk, 497 Pa. at 124, 439 A.2d at 632.

We conclude that where a work injury appears to bear no relationship to events associated with employment activities (regardless of whether a claimant typically engages in those activities as part of his job responsibilities or as an activity of daily living, such as the knee-crossing in Ruhl), but rather relates to a final act that is only work-related insofar as the event alters the employment relationship (such as the termination in this case), an injury associated with that final act does not arise in the course of employment. As the Supreme Court in Davis commented, the Act does not provide benefits to a claimant "merely because of the claimant's status as an employee." Davis, 561 Pa. at 473, 751 A.2d at 175.

This Court has described the expression "course of employment" to encompass injuries an employee sustains while on or off the employer's premises if the employee is acting in furtherance of his employer's business. Workmen's Comp. Appeal Bd. (Slaugenhaupt) v. U.S. Steel Corp., 376 A.2d 271, 273 (Pa. Cmwlth. 1977). Additionally, a claimant can establish that he was injured in the course of employment even if he was not furthering his employer's business when he is on his employer's premises, he is required to be on his employer's premises, and he sustains injuries because of some condition of the premises. Id. Under either qualification, the facts in this case do not support a finding that Decedent was in the course of employment.*fn11

We do not read the Act as imposing on employers the risk of compensation for injuries that result from a decision to terminate an employee. Consequently, based upon the fact that Decedent sustained his fatal heart attack two days after he was terminated, and based upon the lack of any expert medical evidence indicating that a causal connection exists between his actual employment and the onset of his heart attack, we agree with the Board's and the WCJ's ultimate legal conclusions that Decedent did not sustain a work-related injury that would entitle Claimant to benefits for her fatal claim petition.

In summary, the WCJ's determination in Finding of Fact No. 2 that Employer terminated Decedent on January 28, 2006, is supported by substantial evidence, and the WCJ's reference in Finding of Fact No. 1 to January 30, 2006, while appearing to be in conflict with Finding of Fact No. 2, actually pertains to the claim petition for Decedent's work-related disability. Because there is no evidence in the record that could support a factual finding that Decedent's work activities, as compared to Employer's termination of Decedent, were causally related to his death, we affirm the Board's order.*fn12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet Little, dependent of : David Little, Deceased, : Petitioner : v. : Workers' Compensation Appeal : Board (B&L Ford/Chevrolet), : Respondent :

No. 1857 C.D. 2010

ORDER

AND NOW, this 28th day of July, 2011, the order of the Workers' Compensation Appeal Board is affirmed.

P. KEVIN BROBSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet Little, dependent of David Little, : Deceased, : Petitioner : : v. : Workers' Compensation Appeal Board : (B&L Ford/Chevrolet), : Respondent :

No. 1857 C.D. 2010

: Submitted: January 14, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

CONCURRING & DISSENTING OPINION

BY SENIOR JUDGE FRIEDMAN

FILED: July 28, 2011

I agree with the majority that, under Panyko v. Workers' Compensation Appeal Board (U.S. Airways), 585 Pa. 310, 322-323, 888 A.2d 724, 732 (2005), a claimant who suffers a purely physical injury, such as a heart attack, need not prove that the working conditions were abnormal to establish a compensable work injury. However, I disagree that B&L Ford/Chevrolet (Employer) ended the employment of David Little (Decedent) prior to January 30, 2006, and, thus, Janet Little (Claimant) could not prove that Decedent suffered a compensable fatal heart attack on January 30, 2006. (Majority Op. at 9-12.)

The workers' compensation judge (WCJ) in this case specifically found that Decedent "was employed by [Employer] . . . on January 30, 2006." (Findings of Fact, No. 1.) The majority states that this finding "suggests" that the WCJ found January 30, 2006, to be "a pertinent date for the purpose of establishing that an

employment relationship existed." (Majority Op. at 9.) I submit that the finding is clear and unambiguous, not merely suggestive, that Employer employed Decedent on Monday, January 30, 2006.*fn1

The WCJ also found that Decedent received a letter from Employer on Saturday, January 28, 2006, which "terminated the [Decedent's*fn2 ] employment."

(Findings of Fact, No. 2.) The WCJ did not include the effective date of the termination in this finding. Although the letter stated Employer's belief that Decedent voluntarily terminated his employment as of Friday, January 27, 2006, the WCJ did not adopt either the 27th or the 28th as the effective date of the termination. Rather, the WCJ found that Decedent was still employed by Employer on Monday, January 30, 2006.*fn3

Having established that the WCJ found that Decedent was employed by Employer on January 30, 2006, I shall address whether the WCJ erred in concluding that Decedent was not in the course of employment when he suffered a fatal heart attack on January 30, 2006.

An injury is sustained in the course of employment where the employee, whether on or off the employer's premises, is injured while actually engaged in the furtherance of the employer's business or affairs. Workmen's Compensation Appeal Board (Slaugenhaupt) v. U.S. Steel Corporation, 376 A.2d 271, 273 (Pa. Cmwlth. 1977).

Here, Decedent received a letter from Employer on Saturday, January 28, 2006, setting forth Employer's belief that Decedent voluntarily terminated his employment because Decedent failed to provide a timely doctor's report about his ability to work. The letter invited Decedent to contact Employer's president or "Alice" if he had any questions regarding his employment. (See 1/27/06 Letter, Ex.

C-3.) Thus, it is apparent that, when Decedent suffered a heart attack with the letter in his hand, he was considering his response to Employer's erroneous conclusion. Because the letter involved an unresolved personnel matter and invited a response, I conclude that Decedent was furthering Employer's affairs and, therefore, was in the course of his employment when he died.

Accordingly, I would reverse and remand this case to the WCAB for remand to the WCJ for consideration of the parties' medical evidence on causation.

ROCHELLE S. FRIEDMAN, Senior Judge


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