IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LORRAINE MAJETTE,

                                Appellant

v.

ALLENTOWN SCHOOL DISTRICT,

                              Appellee

TABLE OF CONTENTS

TABLE OF CONTENTS. 2

TABLE OF AUTHORITIES. 3

STATEMENT OF APPELLATE JURISDICTION.. 4

SCOPE AND STANDARD OF REVIEW… 4

A.   Form of Action and Procedural History. 5

B.    Statement of Facts. 7

SUMMARY OF ARGUMENTS. 8

APPELLANT’S ARGUMENTS. 8

A.   The Appellant’s Constitutional rights are in jeopardy. 8

B.    The Worker’s Compensation Judge’s findings of fact are not supported by substantial evidence. 10

CONCLUSION.. 11

CERTIFICATE OF COMPLIANCE.. 12

CERTIFICATE OF SERVICE.. 13

TABLE OF AUTHORITIES

Cases

Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992)……………………………………………………………………………………………………………………. 5

Bobchock v. Unemployment Comp. Bd. of Review, 525 A.2d 463, 465 (Pa. Cmwlth. 1987). 10

City of Phila. v. Urban Mkt. Dev., Inc., 48 A.3d 520, 522 (Pa. Cmwlth. 2012) (Emphasis added). 9

Fruehauf Trailer Corporation v. Workers’ Compensation Appeal Board (Barnhart), 784 A.2d 874, 876 n.2 (Pa. Cmwlth. 2001)…………………………………………………………………………………………………. 4

Gamble v. Workmen’s Compensation Appeal Board (Burrell Construction and Supply Co.), 598 A.2d 1073 (Pa.Cmwlth. 1991)………………………………………………………………………………………………… 10

Gartner v. Workers’ Compensation Appeal Board (Kmart Corp.), 796 A.2d 1056 (Pa.Cmwlth.)    5

Gaughan v. Commonwealth, 208 Pa. Super. 406, 222 A.2d 446 (1966)…………………………… 10

In re McGlynn, 974 A.2d at 532…………………………………………………………………………………… 9

In re Murchison, 349 U.S. 133, 136 (1955)……………………………………………………………………. 8

Milner v. Workers’ Compensation Appeal Board (Main Line Endoscopy Ctr. ), 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010)……………………………………………………………………………………………………… 10

Pa. Bankers Ass’n v. Pa. Dep’t of Banking, 956 A.2d 956, 965 (Pa. 2008)…………………………. 9

Peterson v. Workmen’s Compensation Appeal Board (PRN Nursing Agency), 528 Pa. 279, 284, 597 A.2d 1116, 1119 (1991)…………………………………………………………………………………………………… 9

Southeastern Pennsylvania Transportation Authority v. Unemployment Compensation Board, 106 Pa. Commw. 16, 525 A.2d 458 (1987)……………………………………………………………………………. 4

Tri-Union Express v. Workmen’s Compensation Appeal Board (Hickle), 703 A.2d 558, 561 (Pa.Cmwlth. 1997)…………………………………………………………………………………………………………………….. 9

W.J. Menkins Holdings, LLC v. Douglass Twp., 208 A.3d 190 (Pa. Cmwlth. 2019)………….. 10

Statutes

42 Pa. C.S. § 761(4)…………………………………………………………………………………………………… 4

Workers’ Compensation Act § 125.6…………………………………………………………………………. 4

Rules

Pa.R.A.P. 2135…………………………………………………………………………………………………………. 12

Pa.R.A.P. 2135(b)…………………………………………………………………………………………………….. 12

STATEMENT OF APPELLATE JURISDICTION

This Court has jurisdiction to hear appeals from the Workers Compensation Appeals Board pursuant to 42 Pa. C.S. § 761(4). The Workers’ Compensation Act § 125.6 provides that a party aggrieved by the decision the Workers Compensation Appeals Board may appeal at the Commonwealth Court.

SCOPE AND STANDARD OF REVIEW

            Our standard of review in workers’ compensation appeals is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Fruehauf Trailer Corporation v. Workers’ Compensation Appeal Board (Barnhart), 784 A.2d 874, 876 n.2 (Pa. Cmwlth. 2001). Further, the scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence. Southeastern Pennsylvania Transportation Authority v. Unemployment Compensation Board, 106 Pa. Commw. 16, 525 A.2d 458 (1987).

The appellate role in a workers’ compensation case is not to reweigh the evidence or review the credibility of the witnesses; rather, the Board and the appellate court must simply determine whether the WCJ’s findings have the requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). The determination of a workers’ compensation claimant’s AWW is a question of law, and this Court’s review on appeal is plenary. Gartner v. Workers’ Compensation Appeal Board (Kmart Corp.), 796 A.2d 1056 (Pa.Cmwlth.)

ORDER IN QUESTION

The decision of the Workers’ Compensation Appeals Board entered on February 11, 2021.

STATEMENT OF QUESTIONS INVOLVED

1. Whether the Constitutional rights of the Appellant were violated by the decision of the Worker’s Compensation Judge and subsequently, that of the Worker’s Compensation Appeal Board. 
2. Whether the Worker’s Compensation Judge’s findings of fact are supported by substantial evidence.

STATEMENT OF THE CASE

A.    Form of Action and Procedural History

This is an appeal from the decision of the Worker’s Compensation Appeal Board, which upheld the decision of the Worker’s Compensation Judge.

On or about December 10, 2019, Appellant filed a Workers Compensation claim for an injury she suffered on or about February 19, 2019[1]. (See Workers’ Compensation Automated Integrated System (WCAIS) Claim Summary). Appellant filed a supplemental “Claimant’s Brief in Support of Proposed Findings of Fact and Conclusions of Law.” (See Complainant’s Brief).

The final hearing was held on September 15, 2020. In the said hearing, the Appellant presented the testimony of Samuel Grodofsky, MD, who is a board certified medical practitioner. (See Complainant’s Brief at p. 5). Dr. Grodofsky confirmed that Appellant indeed had injuries including cervical sprain and strain, thoracic sprain and strain, lumbar sprain and strain, and a tear on her tendon. (See Complainant’s Brief at p. 6). Notably,Dr. Grodofsky observed that the injuries made Appellant unable to perform her job obligations because she is unable to move her hands repetitively, and to carry heavy items. Therefore, the doctor observed that the injuries suffered by Appellant were disabling.  (See Complainant’s Brief at p. 7). It is worth noting that a review by Dr. James Volpe confirmed Dr. Grodofsky’s observations. (See the Utiliization Review Determination, p.5). 

The school presented the expert testimony of William Murphy, M.D. in support of their case. The said doctor saw Appellant once. The said doctor observed that indeed, Appellant had suffered a work-injury, specifically a shoulder tear. However, at the hearing, Dr. Murphy failed to acknowledge that the tear was as a result of the work-injury. (See Complainant’s Brief at p. 7).

The Workers’ Compensation Judge gave a Finding of Fact and/or judgment on or about February 11, 2021.  (See the Judge’s Findings of Fact). The Judge observed that she had successfully pleaded her claims. However, the Judge held that Appellant had failed to show that she had complained of her shoulder injury immediately after the work-injury. (See the Judge’s Findings of Fact, p. 8). Accordingly, the Judge held that Appellant was entitled to wage loss benefits from February 19, 2019 up to January 8, 2020, and that the school pay her medical costs for her thoracic injuries. (Id.).

On or about February 17, 2021, Appellant filed an Appeal at the Workers’ Compensation Appeals Board against the decision of the Workers’ Compensation Judge. (See Workers’ Compensation Appeal). The Appeal was based on the grounds that the Judge erroneously based his judgment on the fact that Dr. Grodofsky could not determine the age of the Appellant’s shoulder injury, and that the Judge failed to consider the fact that Appellant had testified that she never had her shoulder pain before the work-injury. And that it was only on May 24, 2019 when the Appellant had to seek for medical attention for the shoulder pain, after it went unnoticed since the injury date.  

The Appeal Board upheld the decision of the Trial Judge, which necessitates the instant appeal.

B.     Statement of Facts

Appellant was working as a Special Education teacher at the Allentown School District. (See Complainant’s Brief at p. 2). At that time, her income was between $57,000 and $57,800. (Id). On or about February 19, 2019, Appellant, while doing morning duty, was the victim of an altercation between two boys. While the students were fighting, one student pushed Appellant from behind upon which she hit the wall. Immediately, Appellant felt sharp pain on her mid-to lower back.

She reported the matter to her supervisor, and was treated at the Leigh Valley Emergency Room, and returned to work afterwards, still in pain. (See Complainant’s Brief at p. 3). The pain persisted until around May 24, 2019, she stopped working until June 13, 2019, when she returned to work. (Id.). Appellant’s last day at work was on June 19, 2019. She could not attend work when the schools opened because of the pain.

It is worth noting that Appellant had an motor-vehicle accident in 2010, where she suffered from pain in her lower back. However, since that time until the said February 19, 2019 incidence, Appellant had been free from any pain. (See Complainant’s Brief at p. 3).

Notably, Appellant suffered severe pain on her lower back, neck, and shoulders, consequential and incidental to the accident she sustained while on duty. On or about September 2019, Appellant underwent an MRI scan on her shoulder that revealed that she had indeed suffered a tear on her tendon. (See the MRI Scan Report). Dr. Grodofsky affirmed that Appellant was undergoing much pain, and placed her on treatment for her pain.

Since the accident, Appellant has undergone treatment and therapy for the injuries she suffered as a result of the accident. (See Complainant’s Brief at p. 4). That notwithstanding, Appellant still faces much pain. For example, she has pain on her back when she walks or carries heavy items. Besides, she has pain and stiffness on her neck, and pain on her shoulders. (Id.). Appellant awaits to have surgery on her left shoulder. It is also worth noting that none of Appellant’s doctors have stopped attending to Appellant’s injuries. Further, none has recommended that she goes back to work.

The pain has left her largely unable to perform daily operations. For example, she has not been able to sweep, mop, or vaccum. (See Id).

Interestingly, Appellant has not received her Workers’ Compensation wage loss benefits, and any other benefits consequential and incidental to the accident. The school has only paid some of her medical bills. (See Complainant’s Brief at p. 4).

SUMMARY OF ARGUMENTS

The decision of the Appeals Board and the Trial Judge violated Appellant’s Due Process rights..

The Appeals Board and the Trial Judge erroneously held that the Appellant’s shoulder injury was not a result of Appellant’s work injury on February 2019.

APPELLANT’S ARGUMENTS

A.    The Appellant’s Constitutional rights are in jeopardy.

It is clear that a “fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). It is fundamental that the key principles underpinning due process include the requirements of notice and an opportunity to be heard. Pa. Bankers Ass’n v. Pa. Dep’t of Banking, 956 A.2d 956, 965 (Pa. 2008) (emphasis added). “The key factor in determining whether procedural due process is denied is whether the party asserting the denial of due process suffered demonstrable prejudice.” City of Phila. v. Urban Mkt. Dev., Inc., 48 A.3d 520, 522 (Pa. Cmwlth. 2012) (Emphasis added). 

In assessing whether procedural due process rights have been denied, “[d]emonstrable prejudice is a key factor.” In re McGlynn, 974 A.2d at 532.

“To prevail in a workers’ compensation case, a claimant must show that an employment relationship existed, that the accident or injury occurred in the course of his employment, and that the accident or injury was related to that employment.” Tri-Union Express v. Workmen’s Compensation Appeal Board (Hickle), 703 A.2d 558, 561 (Pa.Cmwlth. 1997) (Emphasis added).

.”The question, whether an injury to a worker is sustained in the course of his or her employment, as contemplated by the Act, is one of law.” Peterson v. Workmen’s Compensation Appeal Board (PRN Nursing Agency), 528 Pa. 279, 284, 597 A.2d 1116, 1119 (1991) (Emphasis added).

In the instant action, the Appeals Board and the WCJ failed to acknowledge the fact that the Appellant’s shoulder injury was consequential and incidental to the work injury on February 2019. Appellant presented sufficient evidence to show that she developed the tear on her tendon on her left shoulder after she experienced the incidence in February 2019. Following the said incidence, Appellant’s physical therapy bore no much success. Appellant therefore had to seek a second opinion, which led to her hospital visit on June 27, 2019 where a medical test showed that she had a partial rotator cuff tear of her left shoulder. (See the Utiliization Review Determination, p.3).  Besides, Appellant complained of pain in her shoulders the moment she experienced the incidence on February 2019. (See Complainant’s Brief, p. 2). Besides, x-rays were taken of her shoulders. (Id., p.3).

The Appeals Board and the WCJ also failed to consider the fact that the expert witness Dr. William Murphy had only met and examined Appellant once, and the meeting was brief. On the other hand, Dr. Grodofsky had met Appellant many times, and was therefore more wary of Appellant’s injuries. 

It follows; the Appeals Board and the WCJ violated Appellant’s due process rights by demonstrated prejudice by failing to acknowledge the evidence supporting the fact that Appellant’s injury was as a result of the incidence on February 2019, and that Dr. Murphy was not a competent witness because he only met Appellant once, as opposed to Dr. Grodofsky, who had examined, tested, and treated Appellant many times.

B.     The Worker’s Compensation Judge’s findings of fact are not supported by substantial evidence.

The findings of fact in a workers’ compensation case must be supported by substantial evidence. Milner v. Workers’ Compensation Appeal Board (Main Line Endoscopy Ctr. ), 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010). The pertinent inquiry is whether there is any evidence that supports the WCJ’s factual finding. Id.

“`Substantial evidence’ is that which constitutes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gamble v. Workmen’s Compensation Appeal Board (Burrell Construction and Supply Co.), 598 A.2d 1073 (Pa.Cmwlth. 1991). Further, substantial evidence requires more than a scintilla of evidence or suspicion of the existence of a fact to be established.” Bobchock v. Unemployment Comp. Bd. of Review, 525 A.2d 463, 465 (Pa. Cmwlth. 1987); see also W.J. Menkins Holdings, LLC v. Douglass Twp., 208 A.3d 190 (Pa. Cmwlth. 2019).

The findings of the Board prevail on appeal if there is competent and substantial evidence in the record to sustain them. Gaughan v. Commonwealth, 208 Pa. Super. 406, 222 A.2d 446 (1966). 

In the instant action, there is no substantial evidence to support the holdings of the Appeals Board and the WCJ that the Appellant’s shoulder tear was not related to the February 2019 incidence. In fact, all the evidence suggest otherwise. Not only did Appellant complain of shoulder pains after the incidence, but the injury on her shoulder was confirmed in a test on June 27, 2019. (See the Utiliization Review Determination, p.3). Further, it is on record that Appellant had completely healed from her previous motor-vehicle accident.

It follows; therefore, there is no substantial evidence to support the findings of the Appeals Board and the WCJ, which necessitates a reversal of their determinations.

CONCLUSION

For the reasons set forth above, Appellant respectfully requests that this Honorable Court reverses the decision of the Workers’ Compensation Appeals Board. Appellant also requests this Court to further remand this case for a fresh hearing with specific instructions on the subject matter herein. Finally, Appellant prays for any other remedy this Court deems just. 

Respectfully Submitted,

Dated: _____________

CERTIFICATE OF COMPLIANCE

I hereby certify that the Brief of Appellants complies with the length requirements of Pa.R.A.P. 2135. According to the word count of the word processing system used to prepare this brief, the brief contains 2,118 words, not including the supplementary matter as described in Pa.R.A.P. 2135(b).

Dated: _____________

CERTIFICATE OF SERVICE

            The undersigned hereby certifies that he served a copy of the foregoing brief on counsel for the Appellee by mail, email/e-filing or personal delivery a copy of the same to the Appellant or Appellant’s Attorney, addressed as follows:

Dated: _____________

[1] Claim No. 8354394.

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