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Janet Little, Dependent of v. Workers' Compensation Appeal

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 ...


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