L. Durbin v. WCAB (PA Hospital of the University of PA Health System), 289 C.D. 2016

Background

Claimant (Durbin) worked in hospital dietary until December 23, 2008 and alleges coworkers accessed and disclosed her husband’s confidential medical information, causing PTSD/depression and inability to return to work.
Claimant filed a workers’ compensation claim on July 10, 2009; Employer failed to file a timely answer, so the WCJ deemed the petition’s factual allegations admitted under Section 416.
The Board found the interlocutory deeming of facts admitted did not decide the legal question whether an "abnormal working condition" existed, remanded for evidence on ongoing disability, and directed the WCJ to consider Employer’s evidence that disability had ended.
On remand, Claimant’s psychiatrist (Dr. Rieger) diagnosed PTSD and disability from December 23, 2008; Employer’s expert (Dr. Fenichel) concluded Claimant either had no work-related psychiatric injury or, if one is assumed, had fully recovered by January 27, 2010. WCJ found Dr. Fenichel more credible and terminated benefits as of January 27, 2010.
The Board vacated in part and remanded to determine whether the injury resulted from an "abnormal working condition;" later the WCJ found the HIPAA violation by coworkers satisfied that element and the Board finalized its earlier order. Claimant appealed, raising competency of Dr. Fenichel’s testimony, burden allocation, and an adverse inference from failure to produce a death certificate.
The Commonwealth Court affirmed: Dr. Fenichel’s testimony was competent (she assumed a work injury when asked and opined recovery), WCJ’s burden-shifting error and any adverse inference were harmless given substantial evidence supporting termination.

Issues

Issue	Durbin's Argument	Pennsylvania Hospital's Argument	Held
Competency of Employer’s medical expert	Dr. Fenichel rejected the acknowledged work injury, so her opinion is incompetent to terminate benefits	Dr. Fenichel assumed a work injury when asked and opined Claimant had fully recovered; thus her testimony is competent	Testimony competent: doctor assumed an injury and opined recovery; WCJ properly relied on it
Burden of proof on ongoing disability	WCJ improperly placed burden on Claimant to prove continued disability	Any misplacement was harmless because Employer met its burden to show recovery	Misplacement was error but harmless; outcome would be same if burden placed on Employer
Adverse inference from failure to produce grandmother’s death certificate	WCJ drew adverse inference harming Claimant	Any reliance on that fact was harmless because other evidence supported findings	If any adverse inference occurred, it was harmless—substantial evidence independently supported termination

Key Cases Cited

Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290 (Pa. 1997) (employer bears burden to prove work injury has ceased in termination proceedings)
Westmoreland Cnty. v. Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008) (employer must present unequivocal, competent medical evidence to show full recovery)
To v. Workers’ Comp. Appeal Bd. (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 2003) (expert may assume a presumed work injury and competently opine on full recovery)
Jackson v. Workers’ Compensation Appeal Board (Resources for Human Development), 877 A.2d 498 (Pa. Cmwlth. 2005) (physician may state no present injury and still opine claimant fully recovered)
Gillyard v. Workers’ Comp. Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth. 2005) (medical testimony incompetent where expert attributes recovery to a different injury than the accepted one)
GA & FC Wagman, Inc. v. Workers’ Comp. Appeal Bd. (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001) (expert’s testimony unreliable when it shows recovery only from injuries other than the accepted work injury)
City of Philadelphia v. Civil Service Comm’n, 824 A.2d 346 (Pa. Cmwlth. 2003) (misplaced burden of proof may be harmless error if result would be the same)