The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Submitted: February 15, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
Rhonda Walker (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying her request for a disfigurement award for her nose, reinstatement of total disability benefits and amendment of the notice of compensation payable (NCP) to include additional work injuries. In doing so, the Board affirmed the Workers' Compensation Judge's (WCJ) decision with regard to the reinstatement and additional injuries. However, the Board reversed the WCJ's award of 45 weeks of disfigurement benefits, holding that the appearance of Claimant's nose does not amount to a disfigurement that is compensable under the Workers' Compensation Act (Act).*fn1
Claimant was employed by Health Consultants (Employer) as a meter reader. On May 8, 2007, Claimant fractured her nose when she fell down a flight of stairs, for which she had surgery on June 26, 2007. Employer issued an NCP describing the injury as a nasal fracture and began total disability benefits as of June 26, 2007. Employer suspended Claimant's benefits effective August 6, 2007, when she was released to return to work without restrictions. Claimant reported for work on August 6th but immediately tendered a resignation letter, stating that August 10th would be her last day. Claimant underwent a second nasal surgery on October 23, 2007.
Claimant filed a reinstatement petition alleging that she was totally disabled by her work injury as of August 10, 2007.*fn2 At the hearing before the WCJ, Claimant orally amended her reinstatement petition to request an award of benefits for permanent disfigurement of her nose. In addition, during the course of the litigation it became apparent that Claimant was also alleging that she sustained injuries to her neck, back and left shoulder when she fell down the stairs.
Claimant testified in support of her petitions, both by deposition and live before the WCJ. Claimant described her May 2007 fall, which caused bruises on various parts of her body. Claimant's major injury was to her nose, although she continued working until she underwent her first nasal surgery in June 2007.
After her surgery, Claimant continued to have pain in her nose and face. Claimant's plastic surgeon released her to return to work in August 2007, but she was in too much pain to do the job for more than one week. Further, Employer would not make any accommodations for her. On cross-examination, Claimant admitted that she did not ask for accommodations and did not tell Employer she was quitting because of her work injury. Claimant's resignation letter said that she was moving to New York.
Claimant underwent a second nasal surgery in October 2007 that resolved her nose and face pain. Claimant testified that she considers herself to be "deformed" because her nose has scars on it and the tip of her nose is crooked. Reproduced Record at 35-36 (R.R. ___). The WCJ instructed Claimant to submit photographs of herself because a change to Claimant's nose was not "obvious" to the WCJ. R.R. 53. Claimant complied, submitting into evidence photographs of herself taken both before and after her accident. Certified Record, Exhibit C-6.*fn3
Claimant testified that she also injured her left shoulder, neck and back when she fell. Claimant stated that the pain in her low back is constant, has worsened over time and prevents her from doing her meter reader job. Claimant saw a chiropractor for her neck and back in December 2007 and saw a medical doctor for those problems in March 2008. Claimant testified that it took her so long to see a doctor for her neck and back because she was initially focused only on her nose and face pain.
Claimant presented the medical deposition of Robert M. Fetchero, D.O., a board certified family practitioner who first saw Claimant on March 17, 2008. Based on Claimant's history and a physical examination, Dr. Fetchero diagnosed Claimant with the following disabling work injuries: neck pain; thoracic pain; low back pain; bilateral radicular leg pain, left greater than right; left shoulder pain; left proximal arm pain; headaches; anxiety and insomnia.
Employer presented the medical deposition of Jack D. Smith, M.D., a board certified orthopedic surgeon who performed an independent medical examination (IME) of Claimant on August 11, 2008. Claimant told Dr. Smith that she bruised her left arm and injured her face, neck and lower back when she fell. However, the medical records of panel doctor Pamela Gianni, M.D., the first physician to treat Claimant, did not refer to any back or neck injuries. Dr. Gianni diagnosed Claimant with a broken nose and with contusions and abrasions to the shoulder, nose, head, right wrist, left knee, chest, upper back and left arm. Records from Claimant's plastic surgeon, Francis Johns, D.M.D., M.D., revealed that Claimant had recovered from her nasal fracture.
At the IME, Claimant complained of pain in her neck, both shoulders, lower back, both hips and both legs. However, in his physical examination of Claimant, Dr. Smith found no objective evidence to substantiate her subjective complaints. Based upon his review of Claimant's medical records and his physical examination of her, Dr. Smith opined that Claimant did not injure her neck or back in the work accident. Even if she had sustained such injuries, she had recovered. Dr. Smith saw a slightly discolored, thickened patch of skin on Claimant's left upper arm ...