SUBMITTED: October 4, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
BONNIE BRIGANCE LEADBETTER, Judge
Employer, the School District of Philadelphia, petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed in part and reversed in part an order of a Workers' Compensation Judge (WCJ). The Board affirmed that part of the WCJ's order granting the claim petition of Claimant, Shirley Hilton, as of March 3, 2009, and reversed that part of the order suspending her benefits as of September 30, 2009, in the absence of evidence that 1) Employer provided her with a Notice of Ability to Return to Work pursuant to Section 306(b)(3) of the Workers' Compensation Act (Act); and that 2) a job was available to her. We affirm the Board to the extent that it affirmed the WCJ's grant of the claim petition and reverse it to the extent that it reversed the WCJ's suspension of benefits. Claimant was entitled to benefits only for the closed period of March 3, 2009 to September 30, 2009.
Claimant worked as a second-grade teacher for Employer at the Frances D. Pastorius Elementary School from November 24, 2008 to March 3, 2009. On March 3rd, she suffered heart palpitations, headaches, dizziness and nausea as a result of a particularly difficult day with her challenging classroom. Later that afternoon, Claimant went to a regularly scheduled appointment with Wilfreta Baugh, M.D., who had treated her for some time. As a result, someone from Dr. Baugh's office telephoned and advised the elementary school that Claimant would not be returning due to the school's overly stressful environment. Subsequently, Claimant treated with Employer's work panel physician, Dr. Frank Burke, who "made her return to work to her regular-duty job at the Pastorius [S]chool in May of 2009." WCJ's Finding of Fact No. 11. Claimant, however, worked for only four days in May 2009 and "received no other pay after March 3, 2009." Id. On May 29, 2009, Employer issued a Notice of Compensation Denial, rejecting Claimant's claim that she suffered a work-related injury due to excessive stress.
In June 2009, Employer re-assigned Claimant to teach at the Jay Cooke Elementary School. Claimant characterized Cooke as the opposite of Pastorius, quiet and with "excellent teaching … going on." WCJ's Finding of Fact No. 10. Although Claimant met with Cooke's principal and toured the school, she testified that she did not begin in September at Cooke because she was still under treatment for the job-related stress from Pastorius. Id. In October 2009, Claimant filed a claim petition alleging that, due to stress from an abnormal working environment, she sustained the following work-related injuries on March 3, 2009: vocal cord injury, aggravation of pre-existing lupus and heart murmur. Alleging total disability, she requested payment for medical bills and the loss of wages from March 3, 2009 to May 21, 2009, and from May 28, 2009 into the future.
The WCJ granted the claim petition for the closed period of March 3, 2009 to September 30, 2009. The WCJ accepted as credible Claimant's testimony that there were serious behavioral problems at Pastorius and that those problems caused the conditions that she experienced on March 3rd. In addition, the WCJ accepted as credible the testimony of Dr. Baugh that 1) Claimant sustained totally disabling work injuries to her vocal cord in the nature of muscle tension dysphonia from voice overuse and an exacerbation of her pre-existing lupus; and that 2) she would have been of no "benefit teaching the way she was in March, 2009." WCJ's Finding of Fact No. 40. The WCJ, however, suspended compensation as of September 30, 2009, when the job at Cooke would have been available, finding as follows:
41. Dr. Baugh did not testify that Claimant's muscle tension dysphonia from voice overuse, the exacerbation of her lupus, or her condition in general disabled her from working as a teacher, other than in a room with second graders who have behavioral problems such as at the Pastorius [S]chool. Dr. Baugh did not testify that as of September, 2009 or any other time, Claimant was not able to teach at the Jay Cooke School. Claimant's testimony is credible that the conditions at the Jay Cooke School are not like her second grade class at Pastorius. She went on a complete tour of the school. It was the opposite of where she had been teaching. It was very quiet and excellent teaching was going on. She was assigned to teach at the Jay Cooke School starting in September of 2009. Therefore, as of September 2009, work was available to Claimant which she was capable of performing, despite her work injuries.
WCJ's Finding of Fact No. 41. On appeal, the Board affirmed that part of the WCJ's decision granting the claim petition and reversed that part of the decision suspending Claimant's benefits as of September 30, 2009. Employer's timely appeal to this Court followed.
In claim petition proceedings, the claimant bears the burden of establishing his or her right to compensation and all of the elements necessary to support an award of benefits, including a causal relationship between a work-related incident and the alleged disability and the duration and extent of the disability alleged. Rife v. Workers' Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d 750, 754-55 (Pa. Cmwlth. 2002). The initial burden, therefore, is on the claimant to establish a loss of earnings from a work-related injury. Second Breath v. Workers' Comp. Appeal Bd. (Gurski), 799 A.2d 892, 900 (Pa. Cmwlth. 2002). In that regard, "[t]he term 'disability' is synonymous with an employee's loss of earning power." N. Pittsburgh Drywall Co., Inc. v. Workers' Comp. Appeal Bd. (Owen), 59 A.3d 30, 37 (Pa. Cmwlth. 2013) (citation omitted).
Employer argues that Claimant failed to meet her burden, contending that Dr. Baugh was unqualified to testify as to the alleged exacerbation of Claimant's pre-existing lupus. Employer emphasizes that Dr. Baugh admitted that she is no longer board-certified in internal medicine and that she is not an expert in psychology, rheumatology, cardiology or otolaryngology. March 9, 2010
Deposition of Dr. Baugh (Baugh Dep.), Notes of Testimony (N.T.) at 6; Reproduced Record (R.R.) at 44a. Accordingly, Employer contends that the WCJ erred in relying upon Dr. Baugh's opinion because the doctor was legally incompetent to testify regarding a causal relationship between psychological stressors and the alleged exacerbation of Claimant's pre-existing lupus.
In general, a physician is competent to testify as to specialized areas of medicine even though he or she is not a specialist or certified in those areas. Marriott Corp. v. Workers' Comp. Appeal Bd. (Knechtel), 837 A.2d 623, 629 (Pa. Cmwlth. 2003). Objections to such testimony generally go to the weight of the evidence. Kocher v. Workmen's Comp. Appeal Bd. (B.G. Coon Constr. Co.), 415 A.2d 162, 163 (Pa. Cmwlth. 1980). In addition, it is well established that "greater credence may be given to the testimony of a treating physician than to a physician who examines simply to testify for litigation purposes." D.P. "Herk" Zimmerman, Jr., Inc. v. Workmen's Comp. Appeal Bd. (Himes), 519 A.2d 1077, 1080 (Pa. Cmwlth. 1987) (citation omitted).
In the present case, we conclude that the WCJ did not err in relying upon Dr. Baugh's testimony regarding the exacerbation of Claimant's pre-existing lupus. Dr. Baugh had been Claimant's treating physician since 1994 and testified as to her familiarity with Claimant's base-line physical condition and any preexisting medical conditions. Baugh Dep., N.T. at 8-9; R.R. at 51a-52a. In fact, although another doctor had already diagnosed Claimant with lupus prior to 1994, Dr. Baugh had been treating Claimant for the condition since that time. Noting that Claimant had been in relatively good health before March 2009, Dr. Baugh opined that the stress Claimant experienced at Pastorius caused an exacerbation of her pre-existing lupus. Id. at 11, 14-15; R.R. at 54a, 57a-58a. In rendering her ...