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The Pennsylvania State University and the Pma Insurance Group v. Workers' Compensation Appeal Board (Rabin

August 15, 2012

THE PENNSYLVANIA STATE UNIVERSITY AND THE PMA INSURANCE GROUP, PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (RABIN, DECEASED), RESPONDENT



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: May 18, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

The Pennsylvania State University (Penn State) and The PMA Insurance Group (collectively, Employer) petition for review of a Workers' Compensation Appeal Board (WCAB) order, dated November 18, 2011, which affirmed the decision of a workers' compensation judge (WCJ) awarding fatal claim benefits to Sandra Rabin (Claimant). We affirm.

At the time of his death, Dr. Jack Rabin (Decedent) worked for Penn State as a professor of public administration. In June 2007, Claimant filed a fatal claim petition, which alleged that Decedent's death on November 13, 2006, stemmed from work-related injuries that he sustained on October 20, 2006. (See WCJ's Findings of Fact, Nos. 1-2.) The WCJ held several hearings in this matter, with Claimant and Theodore Aaron Wachhaus, Jr. (Wachhaus) testifying on behalf of Claimant. Claimant also introduced the deposition testimony of Dr. Joseph Acri, a board-certified internist and one of Decedent's treating physicians, in support of her claim, while Employer, in support of its position, presented the deposition testimony of Dr. Scott Manaker, a board-certified internist, pulmonary disease and critical care specialist, who reviewed Decedent's medical records at Employer's request.

The WCJ found in relevant part as follows. Dr. Acri began treating Decedent in the summer of 2000. At that time, Decedent suffered from lymphedema,*fn1 uncontrolled diabetes, hypertension, difficulty breathing, cardiac problems and cellulitus of the legs. Under Dr. Acri's care, Decedent's kidney function and diabetes levels improved, the number and seriousness of his infections were reduced, and the amount of oxygen he needed was reduced. Dr. Acri also successfully treated Decedent for infections over the course of years. In April 2006, Decedent underwent a stenting procedure for which he required only routine three-month check-ups. Dr. Acri examined Decedent in August 2006 and determined that he was in excellent condition and did not require any supplementary oxygen. In September 2006, Decedent was able to lead religious services at his house of worship, which required him to chant and stand for several-hour intervals. (WCJ's Findings of Fact, Nos. 5-10.)

Starting in the summer of 2003, Wachhaus became a doctoral student in Penn State-Harrisburg's School of Public Affairs. After completing his Ph.D. coursework, Wachhaus prepared to present and defend his thesis before a dissertation committee, of which Decedent was the chairperson. Wachhaus worked closely with Decedent in crafting his dissertation. Wachhaus began meeting Decedent off campus in order to discuss his doctoral material because Wachhaus was teaching at Penn State-Harrisburg as an adjunct professor during the day, while Decedent was teaching at Penn State-Harrisburg at night. According to Wachhaus, he met with Decedent and other Penn State students in an off-campus restaurant setting approximately six to eight times during 2006 for teaching purposes and to discuss related topics and materials. (WCJ's Findings of Fact, Nos. 11-13, 15-16.)

On October 20, 2006, Decedent and Wachhaus met at Charlie Brown's restaurant in Harrisburg to finalize the outline for Wachhaus' dissertation. They arrived at about noon, were seated and placed their orders, and Decedent then requested that their lunches be held until Decedent asked that they be brought to the table. For approximately one to one-and-one-quarter hours, Wachhaus and Decedent discussed in line-by-line, word-by-word detail the outline of Wachhaus' dissertation. Wachhaus then suggested that it was "high time" they begin eating, and both he and Decedent rose to visit the salad bar. While standing on one side of the salad bar, Wachhaus heard a loud crash and walked around to the other side, whereupon he discovered Decedent lying on the floor and groaning. Decedent complained about pain in his upper left chest, shoulder and arm, and he stated that he had caught his foot on something. An ambulance then took Decedent to Harrisburg Hospital's emergency room, where he was diagnosed with a left shoulder fracture/dislocation and left humeral shaft fracture.*fn2 According to Wachhaus, had Decedent not been injured, he fully expected their meeting to last until 3:00 p.m. and that, after they got their food, they would continue to discuss topics of public administration, methodological problems and other scholarly matters. (WCJ's Findings of Fact, Nos. 14, 17- 22, 24-25.)

On October 20, 2006, the day of the incident, Dr. Robert J. Maurer performed a left shoulder closed relocation of the Decedent's arm fracture and shoulder dislocation. Dr. Maurer indicated in his operative report that possible infection was a risk of the procedure. Decedent was discharged from Harrisburg Hospital on October 21, 2006, but, on October 24, 2006, Decedent was admitted to Community General Osteopathic Hospital due to his complaints of left shoulder pain and ambulatory dysfunction. The orthopedic surgeons at Community General Osteopathic Hospital called Dr. Acri in for a consultation on October 26, 2006. At that time, Dr. Acri discovered Decedent in intense pain and cardiac and respiratory distress, and the doctor had Decedent immediately transferred to the intensive care unit. Decedent died on November 13, 2006, and, afterward, Dr. Acri concluded in his hospital summary: "The patient expired from multiple medical problems stemming from his unfortunate left upper extremity fracture." (WCJ's Findings of Fact, Nos. 26-31.)

According to Dr. Acri, Decedent's unchecked pain and stress, which were caused by his upper arm fracture and left shoulder dislocation, caused Decedent's kidneys and heart to fail and suppressed Decedent's immune system to the point where he succumbed to aseptic pneumonia. Dr. Acri compared the objective test results taken on Decedent's admission to Harrisburg Hospital on October 20, 2006, with the tests run on Decedent at Community General Osteopathic Hospital on October 25, 2006. Those results confirmed that Decedent's white blood cell count was slightly elevated on October 20, 2006, indicating the beginnings of a stress response, but that, by October 25, 2006, he had a worsening of kidney function and an elevated AST*fn3 indicating heart injury brought on by rapid atrial fibrillation due to stress and pain from Decedent's shoulder injuries. Dr. Acri summarized his testimony by stating that Decedent's fall and his broken arm and dislocated shoulder were the triggers leading to his death three weeks later. (WCJ's Findings of Fact, Nos. 32-34.)

Dr. Manaker, on the other hand, opined that Decedent's injuries, which were the result of his fall, did not cause his death. Even so, Dr. Manaker was not sure exactly what medical problem led to Decedent's death, stating: "An infection or an infection-like syndrome, or possibly multiple organ failure, one or the other or both." (WCJ's Findings of Fact, No. 38.) Dr. Manaker never examined Decedent, and he did not review any of Dr. Acri's records from 2006. He testified that he did not believe that Decedent required re-hospitalization on October 24, 2006. He agreed with Dr. Acri, however, that Decedent's renal and heart failures suppressed and compromised Decedent's immune system, predisposing him to infection. (WCJ's Findings of Fact, Nos. 36-37 and 41.)

The WCJ credited Wachhaus' testimony regarding the events surrounding Decedent's injury. (WCJ's Findings of Fact, No. 23.) He also credited Dr. Acri's testimony over the testimony of Dr. Manaker because "the correctness of Dr. Acri's decision to place [Decedent] into the ICU on October 26, 2006, was tragically confirmed by the future course of events, a future course which belied Dr. Manaker's opinion that [Decedent] did not require hospitalization on October 24, 2006," (WCJ's Finding of Fact, No. 44); "Dr. Acri's opinion was well supported by the objective test results comparing [Decedent's] status upon entering into Harrisburg Hospital on October 20, 2006, with the objective test results taken on October 25, 2006 and thereafter in Community General Osteopathic Hospital," (id.); and, "even if [Decedent's] death was due to a hospital acquired . . . infection which Dr. Manaker suggests was one possibility, [Decedent] would not have been in the hospital exposed to such infection but for his broken arm and dislocated shoulder," (id.).

Based on his findings, the WCJ concluded that Decedent was actually engaged in the furtherance of the business or affairs of Penn State when he fell and was injured at Charlie Brown's restaurant on October 20, 2006, and that he died as a result of those injuries. (WCJ's Conclusions of Law, Nos. 2-3.) The WCJ thus granted Claimant's fatal claim petition. On appeal by Employer, the WCAB affirmed. Employer's petition for review to this court followed.

On appeal,*fn4 Employer first argues that Claimant failed to meet her burden of proving that Decedent sustained his injuries on October 20, 2006, while in the course of his employment. In particular, Employer asserts that Decedent was a stationary employee who was on a lunch break at a public restaurant when he fell and, therefore, Decedent cannot be construed to have been actually engaged in the furtherance of his employer's business or affairs at the ...


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