LORRAINNE MAJETTE v. ALLENTOWN SCHOOL DISTRICT
WCAIS Claim No. 8354394
WCAIS Dispute No. DSP-8354394-2
BRIEF IN SUPPORT OF APPEAL
Appellant hereby files this Brief in support of her appeal against a decision issued by
Judge Cathleen Sabatino, entered on August 16, 2022.
BACKGROUND OF THE CASE
A. Form of Action and Procedural History
This is an appeal from the decision of Judge Cathleen Sabatino, which granted the
Respondent’s Petition to Terminate Compensation Benefits.
On or about April 9, 2021, the Respondent filed a Petition to Terminate
Compensation Benefits. In support of the Petition to Terminate, the Respondent presented the
deposition report of Dr. William C. Murphy taken on May 25, 2021. In the said deposition,
Dr. Murphy alleged that he performed an evaluation on Appellant, on March 25, 2021.
Further, according to the deposition report, Appellant had a previous history of low back
injury following a motor vehicle accident in 2012. Dr. Murphy also alleged that Appellant
had ongoing symptoms and neck pains with occasional pain and numbness radiating to the
bilateral hands, and that she also had lower back pain with occasional numbness and tingling
into the bilateral lower extremities and pain in both shoulders.
It was Dr. Murphy’s observation that Appellant had fully healed from the injuries she
sustained in the February 19, 2019 incidence. Therefore, according to Dr. Murphy, Appellant
did not require any additional treatment and that the ongoing treatment by Dr. Volpe is
unnecessary because there were no objective abnormalities.
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In opposition to the Petition to Terminate, the Appellant presented the deposition
testimony of Dr. James Volpe. Dr. Volpe testified that he had seen Respondent for over 17
times for her work injury. First, Dr. Volpe disagreed with Dr. Murphy that Appellant has
fully recovered from her cervical sprain/strain. Dr. Murphy’s observations were inconsistent
with Dr. Volpe’s physical examination of Appellant, Appellant’s complaints, and the image
studies reviewed. Notably, from Appellant’s last three visits, Dr. Volpe diagnosed pain in the
thoracic spine, cervicalgia, lumbar disc protrusions, and low back pain.
Next, Dr. Volpe expressly stated that Appellant’s cervical and lumbar injuries were a
direct result of the February 19, 2019 incidence, and that Appellant was not fully recovered
from the work injury. This is the reason why Dr. Volpe did not release Appellant to work.
Dr. Volpe further notes that in Appellant’s last visit, she complained of increased pain
in her lower back, neck pain, and shoulders. This pain interfered with Appellant’s ability to
perform household chores. Accordingly, Dr. Volpe diagnosed cervicalgia, lumbar back pain,
cervical and lumbar disc protrusions, and aggravation of cervical and lumbar disc disease.
In consideration of the foregoing, the Judge held that Appellant’s testimony was
credible but not persuasive in part. Specifically, the Judge held that Appellant’s continuing
pains are not related to her work injury and that since Appellant is not a medical expert, she
cannot opine regarding the cause of her pains.
The Judge also held that she found the testimony from Dr. Murphy that Appellant had
fully recovered from her work injury, as credible. The Judge further stated that since the
Appellant had soft tissue injuries from the work injury, she must have generally recovered
within two years. The Judge then ordered a termination of compensation benefits.
B. Statement of Facts
Appellant was working as a Special Education teacher at the Allentown School
District. At that time, her income was between $57,000 and $57,800. On or about February
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19, 2019, Appellant, while doing morning duty, was the victim of an altercation between two
boys. She was carrying a huge black bag on her right hand at the time of the incidence. While
the boys were fighting, the boys bolted into Appellant back upon which she hit the wall.
Immediately, Appellant felt sharp pain on her mid-to lower back. There was a video
surveillance that captured the incidence. The school Principal, Mr. Joe Rosado accessed the
footage and made an incidence report out of the same.
She reported the matter to her supervisor, and was treated at the Leigh Valley
Emergency Room, and returned to work afterwards, still in pain.
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 a 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.
Notably, Appellant suffered severe pain on her lower back, neck, and shoulders,
consequential and incidental to the accident she sustained while on duty. It is also worth
noting that Appellant suffered injuries on both her right and left shoulders. She Appellant
underwent two MRI scans. Around June, Appellant the Company doctor performed an MRI
scan on Appellant’s left shoulder, back and neck, when Appellant’s injuries persisted. The
scan revealed Appellant had a tendon tear on her left shoulder. Also, on or about September
2019, Appellant underwent another MRI Scan on her right shoulder. The scan was performed
by Dr. O’Donnell- the chiropractor who did the surgery on Appellant’s right shoulder, which
surgery the Appellant’s insurance paid for. The Scan revealed that she had also suffered a full
thickness tear on her distal supraspinatus insertion in her left shoulder. Dr. Grodofsky
affirmed that Appellant was undergoing much pain, and placed her on treatment for her pain.
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Since the accident, Appellant has undergone treatment and therapy for the injuries she
suffered as a result of the accident. 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. 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.
APPELLANT’S ARGUMENTS
A. The Appellant has not fully recovered from her work injury.
Under section 413 of the Pennsylvania Workmen’s Compensation Act, Act of June 2,
1915, P.L. 736, as amended, 77 P. S. § 772, a referee may terminate a claimant’s workmen’s
compensation benefits at any time, upon a finding supported by substantial evidence, that
a claimant’s work-related disability has ceased entirely. Rogers Motor Lines v. Workmen’s
Compensation Appeal Board (Baker), 144 Pa. Commw. 493, 601 A.2d 934 (1992).
Therefore, an employer seeking to terminate workmen’s compensation benefits bears
the burden of proving either that the employee’s disability has ceased, or that any current
disability arises from a cause unrelated to the employee’s work injury. McGee v. L.F.
Grammes Sons, 477 Pa. 143, 383 A.2d 864 (1978); Central Pennsylvania Community Action,
Inc. v. Workmen’s Compensation Appeal Board (Probeck), 103 Pa. Commw. 278, 520 A.2d
112 (1987); McGinley v. Workmen’s Compensation Appeal Board (Acme Markets, Inc.), 77
Pa. Commw. 214, 465 A.2d 147 (1983). "This burden is considerable, for disability is
presumed to continue until demonstrated otherwise." (Emphasis added). Olivetti Corp. v.
Workmen’s Compensation Appeal Board (Robinson), 75 Pa. Commw. 584, 586, 462 A.2d
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934, 936 (1983), quoting Workmen’s Compensation Board ex rel. Mialka v. F.W. Woolworth
Co., 19 Pa. Commw. 413, 415, 338 A.2d 784, 785 (1975).
Thus, once a claimant establishes her right to benefits, those benefits remain in
effect unless and until the employer satisfies its burden of proving entitlement to
termination. See Olivetti Corp. v. Workmen’s Compensation Appeal Board (Robinson), 75
Pa. Commw. 584, 586, 462 A.2d 934, 936 (1983). There is no burden on the claimant to
prove anything at all. Central Pennsylvania Community Action, Inc. v. Workmen’s
Compensation Appeal Board (Probeck), 103 Pa. Commw. 278, 520 A.2d 112 (1987).
In essence, in order to prevail in a termination action, the employer must disprove the
claimant’s existing, continuing right to benefits, in support of which the claimant has already
established that his injury arose in the course of his employment and was causally related
thereto. See Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979).
In the instant action, the Appellant has demonstrated that she continues experiencing
pains, which she was not experiencing prior to the work injury. Notably, Dr. Volpe gave a
sworn testimony in which he notes that in Appellant’s last visit, she complained of increased
pain in her lower back, neck pain, and shoulders. This pain interfered with Appellant’s ability
to perform household chores. Dr. Volpe diagnosed cervicalgia, lumbar back pain, cervical
and lumbar disc protrusions, and aggravation of cervical and lumbar disc disease.
It is crucial to further note that the said pains cannot be traced to Appellant’s past
accident, which happened 12 years ago now. Appellant had a motor-vehicle accident in 2010,
where she suffered from pain in her lower back. Since that time until the said February 19,
2019 incidence, Appellant had been free from any pain. It is therefore not reasonable to hold
that the Appellant’s current pains were resulting from the 2010 accident yet Appellant has
never experienced any pain from the accident for nine whole years until her work injury in
2019. This therefore shows that the pain is directly attributed to the work injury. For that
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reason, contrary to the Respondent’s averments, Appellant not fully recovered from the work
injury.
C. The Judge’s decision is not supported by substantial evidence.
"`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
Judge that Appellant has not fully recovered from her work injury. Appellant had never
experienced her current pains before her work injury. Accordingly, it is only after her work
injury that Appellant began experiencing her pains, which fact was noted in Dr.Volpe’s
testimony. Besides, the Respondent have failed to carefully provide proof of the sources of
Appellant’s pains. They only allege that the pains are related to Appellant’s 2010 accident but
do not provide any explanation why Appellant could not experience any pain before her work
injury in 2019, which is 9 years since the automobile accident.
It follows; therefore, there is no substantial evidence to support the decision of the
Judge, which necessitates a reversal of the decision.
CONCLUSION
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For the reasons set forth above, Appellant respectfully requests that the Judge’s
decision be reversed, and the Respondent be made to pay Appellant’s compensation benefits.
Appellant also prays for any other remedy deemed just.
Respectfully Submitted,
Dated: _____________
______________________________
LORRAINE MAJETTE
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