Argued March 10, 2015
Appeal from the Order of the Commonwealth Court entered on January 7, 2014 at No. 598 CD 2013, affirming in part and reversing in part the Order entered on March 12, 2013 by the Workers' Compensation Appeal Board at No. A11-0712. Appeal allowed August 13, 2014 at 64 EAL 2014. Intermediate Court Judges: Bonnie Brigance Leadbetter, Mary Hannah Leavitt, Anne E. Covey, JJ.
For Shirley Hilton, APPELLANT: Paul M. Della Franco, Esq.
For Pennsylvania Association For Justice, APPELLANT AMICUS CURIAE: George E. Martin III, Esq., Martin, LLC.
For Workers' Compensation Appeal Board, APPELLEE: Amber Marie Kenger, Esq., PA Department of Labor & Industry.
For School District of Philadelphia, APPELLEE: William E. Malone Jr., Esq., Musi, Malone & Daubenberger, L.L.P.
BEFORE: MR. JUSTICE BAER. SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
MR. BAER, JUSTICE
The primary issue in this appeal is whether Section 306(b)(3) of the Workers' Compensation Act (Act) requires an employer to provide an injured employee with written " notice of ability to return to work" before offering alternative employment where the injured employee has not yet filed a claim petition and, thus, has never proven entitlement to workers' compensation benefits. We hold that Section 306(b)(3) notice is required where the employer is seeking to modify existing workers' compensation benefits based on medical evidence establishing that the injured employee is able to return to work in some capacity. Because the injured employee in the case before us had not yet received workers' compensation benefits when the offer of alternative employment was rendered, the employer had no duty to provide notice of ability to work pursuant to Section 306(b)(3). Accordingly, we affirm the order of the Commonwealth Court.
The record establishes that Shirley Hilton (Claimant) was employed by the School District of Philadelphia (Employer) as a second grade teacher at the Frances D. Pastorius Elementary School (Pastorius Elementary) from November 24, 2008 to March 3, 2009. The second graders in Claimant's classroom engaged in significant misbehavior, including using profanity and engaging in physical violence, which prevented Claimant from teaching effectively and required her to speak louder than the classroom noise. After completing an assignment on March 3, 2009, the children became unruly and vandalized the room by knocking over desks and chairs, tearing down educational charts, and later ripping down a window shade. Claimant thereafter felt dizzy, could not eat, and suffered from tension headaches, heart palpitations, and nausea.
After school that day, Claimant went to a regularly scheduled appointment with her primary care physician, Dr. Wilfreta Baugh. Claimant informed Dr. Baugh of her symptoms and indicated that the anxiety arising from her employment was more than she could bear. As a result, a representative from Dr. Baugh's office called Employer and advised that Claimant would not be returning to work due to the school's overly stressful environment.
Shortly after the incident, Claimant was treated by Employer's work physician, Dr. Frank Burke, who concluded that she could return to work at her regular duty job at Pastorius Elementary. Claimant returned to Pastorius Elementary a few weeks later, but stayed only four days, unable to continue working under the stress. Notably, on May 29, 2009, Employer issued a notice of compensation denial, rejecting Claimant's contention that she suffered a work-related injury due to excessive stress on the job.
In June of 2009, Employer assigned Claimant to teach in the fall at a different school, the Jay Cooke School. Claimant met with the principal of that school and toured the facility, finding it to be the opposite of Pastorius Elementary in that it was very quiet and the instructors were able to teach the children effectively. Germane to the issue before us, at the time Employer offered Claimant the alternative employment at the Jay Cooke School, she had not yet filed a claim petition; thus, no depositions of medical experts had been taken by either party. When school began in September of 2009, Claimant did not begin employment at the Jay Cooke School. Claimant maintained that she was unable to return to teaching because she was still under treatment for the job-related maladies that arose from her stressful working environment at Pastorius Elementary.
In October of 2009, Claimant filed a claim petition alleging that, due to stress from an abnormal working environment, she sustained work-related injuries on March 3, 2009, which included a vocal cord injury, aggravation of pre-existing lupus, and a heart murmur. She asserted that these injuries rendered her totally disabled. Consistent with its prior notice of compensation denial, Employer filed a timely answer denying all of the material averments in Claimant's petition. Deposition testimony was provided by Claimant, her treating physician, Dr. Baugh, and Employer's medical expert, Dr. James A. Lamprakos.
In a deposition dated December 4, 2009, Claimant, who was seventy years of age at the time, testified regarding the stressful conditions at Pastorius Elementary as outlined supra. She explained the effects she suffered from the school's environment, including dizziness, heart palpitations, headaches, nausea, and the reemergence of her preexisting condition of lupus. Claimant acknowledged that Employer assigned her to the Jay Cooke School in June of 2009, and that she visited the facility, finding it to be a quiet school with excellent teaching. She reiterated, however, that she was not able to return to teaching in the fall of 2009 because she was still being treated for the stress-related injuries incurred from teaching at Pastorius Elementary.
Dr. Baugh, Claimant's treating physician, testified by deposition dated March 9, 2010, and indicated that Claimant was in good health prior to the work-related incident. She noted that Claimant had previously been diagnosed with lupus, but had been in remission for the past three years. While Claimant also had a previous history of fibromyalgia and a vocal cord injury, she had no symptoms from such conditions at the time she began teaching for Employer. Dr. Baugh's medical opinion, within a reasonable degree of medical certainty, was that the stressful work environment at Pastorius Elementary exacerbated Claimant's preexisting conditions of lupus and fibromyalgia, and caused her to suffer from muscle spasms, headaches, insomnia, and vocal cord injury. Deposition of Dr. Baugh, Mar. 9, 2010, at 17-19. Dr. Baugh was sure, however, that Claimant was capable of teaching in a less stressful environment and that she desired to do so, as opposed to teaching under the circumstances that had been present at Pastorius Elementary. Id. at 19, 21-22, 34.
Employer's expert witness, Dr. James A. Lamprakos, testified by deposition dated August 4, 2010. Based on his physical exam and review of Claimant's medical records, he opined that Claimant was able to work without restriction in her pre-injury job as a second grade school teacher. Deposition of Dr. Lamprakos, Aug. 4, 2010, at 53. Contrary to Dr. Baugh's conclusions,
Dr. Lamprakos concluded there was no medical evidence establishing that Claimant's stressful work environment caused the worsening of her preexisting conditions of fibromyalgia, lupus, and vocal cord injury. Id. at 35-36, 40, 44-45, 48. Acknowledging that Claimant's oral ulcers, nasal ulcers, and the increased hyperpigmentation on her face were indicative of lupus, Dr. Lamprakos found no evidence linking the reemergence of lupus to stress, although he conceded it was possible. Id. at 78.
The WCJ credited Claimant's testimony regarding the conditions of her work environment at Pastorius Elementary, emphasizing that the behavioral problems of the second grade class were uncontroverted. The WCJ also credited Claimant's testimony that the stressful work environment caused her symptoms of heart palpitations, headaches, dizziness, and nausea and reduced her voice to a whisper. Finding portions of Dr. Baugh's testimony credible, the WCJ concluded that Claimant suffered an injury in the nature of muscle tension dysphonia from voice overuse. The WCJ further credited Dr. Baugh's opinion that as a result of the stressful work environment, Claimant sustained an exacerbation of her preexisting lupus, as demonstrated by her oral ulcers, nasal ulcers, and increased hyperpigmentation of the face. Nevertheless, the WCJ credited Employer's expert, Dr. Lamprakos, and concluded that the stressful work conditions did not cause an exacerbation of Claimant's fibromyalgia.
Accordingly, based on Dr. Baugh's testimony, the WCJ concluded that the stress arising from teaching at Pastorius Elementary resulted in the physical injury of exacerbated lupus with its associated symptomology and vocal cord injury in the nature of muscle tension dysphonia from voice overuse, which rendered Claimant totally disabled as of March 3, 2009. Thus, the WCJ awarded her benefits as of that date. Significantly, however, the WCJ found that Dr. Baugh's testimony did not establish that Claimant was generally disabled from working as a teacher, but only that she was disabled from working in a classroom with children who have behavioral problems like those in her class at Pastorius Elementary. WCJ's Opinion, Apr. 19, 2011, Finding of Fact No. 41. Crediting Claimant's own testimony that on September 30, 2009, Employer made a position available to her at the Jay Cooke School, which Claimant found to be a quiet school with excellent teaching, the WCJ held that Claimant's worker's compensation benefits should be suspended as of that time.
The Workers' Compensation Appeal Board (WCAB) affirmed in part and reversed in part. Initially, it affirmed the grant of benefits, thereby rejecting Employer's contention that Dr. Baugh's testimony that Claimant's work duties exacerbated her pre-existing lupus was incompetent because she was not an expert in the area. The WCAB opined that a physician need not be an expert in a specialized area in order to render competent testimony on the subject.
Relevant here, the WCAB reversed that portion of the WCJ's order suspending Claimant's benefits as of September 30, 2009, on the ground that Employer never provided her with a notice of ability to return to work pursuant to Section 306(b)(3) of the Act. This provision states:
If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, ...