           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lanetta Durbin,                         :
                        Petitioner      :
                                        :
            v.                          :   No. 289 C.D. 2016
                                        :   Submitted: July 15, 2016
Workers’ Compensation Appeal            :
Board (Pennsylvania Hospital of         :
the University of PA Health System),    :
                        Respondent      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: November 21, 2016

            Lanetta Durbin (Claimant) petitions this Court for review of an order
of the Workers’ Compensation Appeal Board (Board), dated November 30, 2012,
which the Board made final by order, dated January 29, 2016. The Board’s order,
dated November 30, 2012, vacated in part, remanded in part, and affirmed in part,
an order of Workers’ Compensation Judge Andrea McCormick (WCJ), dated
December 14, 2010, which granted Claimant’s claim petition based on allegations
in the claim petition deemed admitted due to Pennsylvania Hospital of the
University of Pennsylvania Health System’s (Employer) failure to file a timely
answer. For the reasons discussed below, we now affirm.
            The following facts are not in dispute. From some date uncertain until
December 23, 2008, Claimant was employed by Employer in its dietary
department. Claimant alleges that, during her last week of work, she suffered
psychological trauma, depression, and post-traumatic stress disorder when certain
unnamed coworkers violated HIPAA1 regulations by revealing to other coworkers
that Claimant’s husband had a particular medical condition. Claimant first learned
that her husband had been diagnosed with a medical condition in 2007, and she did
not reveal this information to friends, family, or coworkers. Her husband was
undergoing treatment for his condition at Pennsylvania Hospital where Claimant
was employed. On December 23, 2008, unnamed coworkers confronted Claimant
and inquired about her husband’s condition.        Claimant alleged that certain
coworkers used Employer’s medical records database to look up information
regarding her husband’s treatment and related that information to other coworkers.
Claimant stated that she left work and was unable to return due to the
psychological trauma resulting from her husband’s status being revealed to her
coworkers and the stigma associated with the diagnosis.
            On July 10, 2009, Claimant filed a claim petition against Employer
for workers’ compensation benefits. Employer failed to file a timely answer to the
claim petition. The matter was assigned to the WCJ, who issued a notice of
hearing on August 7, 2009. The hearing took place on September 1, 2009, and
Employer subsequently filed an answer to the claim petition on September 3, 2009.
The WCJ scheduled a hearing for October 15, 2009, to afford Employer an
opportunity to dispute receipt of proper notice of the claim petition having been
filed or to offer adequate excuse for the late filing of the answer.2 Employer

      1
          HIPAA refers to the Health Insurance Portability and Accountability Act
of 1996 (HIPAA), 29 U.S.C. § 1181-6039(F).
      2
          See Yellow Freight Systems, Inc.    v.   Workmen’s   Comp.   Appeal   Bd.
(Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981).



                                        2
provided no adequate excuse and did not present evidence that it did not receive
notice of the claim petition. In a decision and order, circulated November 9, 2009,
the WCJ held that Employer failed to file a timely answer to the claim petition.
Accordingly, the WCJ concluded that all allegations in the claim petition were
deemed admitted pursuant to Section 416 of the Workers’ Compensation Act, Act
of June 2, 1915, P.L. 735, as amended, 77 P.S. § 821.
              Employer appealed the November 9, 2009 order to the Board, arguing
that   it   was   effectively a    final   judgment.    By opinion       circulated   on
September 9, 2010, however, the Board concluded that the order was interlocutory
and not subject to appeal. The Board explained that the untimely answer admitted
facts rather than legal conclusions and only admitted liability through
June 30, 2009, the last date that an answer could have been filed.3 The Board
further noted that a rebuttable presumption exists that disability continues beyond
the last day the answer could be filed and that an employer bears the burden to
produce evidence to overcome that presumption.4              Accordingly, the Board
remanded the matter to the WCJ to hear Employer’s evidence that Claimant’s
disability was not ongoing and to issue a final determination.
              On remand, Claimant presented the deposition testimony of
Wolfram Rieger, M.D., a board-certified psychiatrist who examined Claimant on
May 13, 2010.      In opposition to the claim petition, Employer presented the



       3
         Ghee v. Workmen’s Comp. Appeal Bd. (Univ. of Pa.), 705 A.2d 487 (Pa.
Cmwlth. 1997), appeal denied, 725 A.2d 184 (Pa. 1998).
       4
        Rite Aid v. Workers’ Comp. Appeal Bd. (Bennett), 709 A.2d 447 (Pa. Cmwlth. 1998),
appeal denied, 796 A.2d 988 (Pa. 1999).



                                           3
deposition testimony of Claimant and its own medical expert, Gladys Fenichel,
M.D.
            Dr. Rieger testified that Claimant was afraid to return to Pennsylvania
Hospital and suffered from nightmares, panic attacks, and difficulty sleeping.
Dr. Rieger diagnosed Claimant with post-traumatic stress disorder qualified as “a
major devastating emotional reaction and severe adjustment disorder with anxiety
and depression.” (Supplemental Reproduced Record (S.R.R.) at 4b). He also
noted that Claimant suffered from major depression and had a history of
psychological symptoms from 2007 to 2009 based on notes from Claimant’s prior
physician. Dr. Rieger concluded that Claimant became acutely disabled as of
December 23, 2008.
            Claimant testified that she worked in the dietary department for
Employer for eight years and was charged with stocking refrigerators with food
items.   Claimant testified that she was not diagnosed with depression before
December 23, 2008, and that she had never previously complained of depression.
Claimant first learned of her husband’s diagnosis in 2007 and did not tell any
family members or friends the diagnosis. Claimant discussed her concerns about
her coworkers’ knowledge of her husband’s diagnosis with her supervisor,
Carolyn Towbin, who referred her to Delaware County Health Services. During
her initial therapy sessions, she complained of panic attacks, difficulty sleeping,
and crying. She later treated with a psychiatrist, Steve Levy, M.D.
            Employer’s medical expert, Dr. Fenichel, testified that she examined
Claimant on January 27, 2010. Dr. Fenichel found that Claimant gave a consistent
history of the disclosure of her husband’s medical status and her reaction to that
disclosure. She noted that Claimant was well-groomed, did not cry or show signs


                                         4
of depression or anxiety during the interview and, in May 2009, had gone on a
vacation with four other women to the Bahamas. Based on her examination,
Dr. Fenichel concluded that Claimant did not have a psychiatric diagnosis or
disability related to events that occurred in her workplace. Dr. Fenichel also
opined that, if Claimant had sustained a work-related mental injury, she had fully
recovered from that injury as of the date of her examination.       Additionally,
Dr. Fenichel explained that Claimant had a documented history of anxiety and
depression and that an individual diagnosed with anxiety and depression did not
need a particular life event to occur in order to experience an increase in
symptoms.
            On the issue of ongoing disability, the WCJ found Dr. Fenichel more
credible than Dr. Rieger, reasoning that Dr. Fenichel had based her opinions on
observations of Claimant and had a complete working understanding of Claimant’s
work injury and prior medical history. The WCJ acknowledged that “a medical
expert’s testimony has been found incompetent when [s]he ignores or rejects an
acknowledged work injury.” (S.R.R. at 6b). The WCJ, however, distinguished the
instant case because the acknowledged work injury was based on a legal doctrine.
The WCJ reasoned that prior case law involved a medical expert testifying at a
termination proceeding where the work injury had previously been established by
competent medical testimony. In the instant case, the WCJ found that a medical
expert need not acknowledge an injury that was established by a deemed admission
rather than medical evidence.
            Additionally, the WCJ noted that Employer had proffered other
evidence that Claimant had recovered from her mental injury. Employer presented
surveillance videos of Claimant, dated September 18 and 19, 2009, and January 14


                                        5
and 20, 2010.    The September 18, 2009 video showed Claimant visiting her
grandmother in the Pennsylvania Hospital.        The remaining videos showed
Claimant walking outside of her house and interacting with different individuals.
Employer also produced a news article showing Claimant had run for a local public
office position. The WCJ stated that this evidence demonstrated that Claimant was
no longer a recluse. The WCJ emphasized that, although Claimant stated that she
only went into the hospital to visit her dying grandmother, Claimant had not
produced a death certificate.    The WCJ issued a final decision circulated on
December 14, 2010, in which she concluded that Claimant was disabled from
December 23, 2008, to January 27, 2010, due to mental injuries resulting from a
work-related incident.
            Both parties appealed to the Board. Employer argued that the WCJ
erred in granting the claim petition based on the deemed admissions because the
late answer did not admit that Claimant’s mental injury arose in the course of her
employment or as a result of an abnormal working condition. Claimant argued that
the Board erred in terminating her benefits, because the Board relied on
Dr. Fenichel’s opinion, which Claimant contended was incompetent. By opinion
and order mailed on November 30, 2012, the Board vacated in part, affirmed in
part, and remanded in part.      The Board concluded that the admitted facts
demonstrated that Claimant’s injury was at her workplace during the course of her
employment. The Board, however, also concluded that the existence of an
“abnormal working condition” was a legal conclusion which could not be admitted
as a result of a late answer and that the WCJ made no specific findings about an
abnormal working condition. Accordingly, the Board remanded the case to the
WCJ to consider the existing record to determine whether Claimant’s mental injury


                                        6
resulted from an abnormal working condition. The Board additionally affirmed the
WCJ with respect to the termination of Claimant’s benefits, reasoning that the
WCJ properly weighed the conflicting medical expert opinions and found
Dr. Fenichel’s testimony that Claimant had fully recovered from any work-related
injury as of January 27, 2010, to be more credible. The Board specifically rejected
Claimant’s contention that Dr. Fenichel did not acknowledge that Claimant
suffered a work-related injury, thereby rendering her opinion incompetent.
             By opinion circulated on October 1, 2015, the WCJ concluded that
Claimant had proven that her mental state was an objective reaction to an abnormal
working condition. The WCJ found that it was abnormal for Claimant’s coworkers
to obtain her husband’s confidential medical records and disclose them in the
workplace in violation of HIPAA. Further, the WCJ found Claimant’s reaction to
be objective considering the sensitive nature of the information and the social
stigma attached to the diagnosis.
             Claimant appealed to the Board from the WCJ’s determination,
requesting that the Board affirm the WCJ’s October 1, 2015 determination and
make the Board’s November 30, 2012 order a final, appealable order.5               On
January 29, 2016, the Board granted Claimant’s request, noting that neither party
contested the WCJ’s October 1, 2015 determination.
             Claimant petitioned this Court for review, raising three issues on
appeal:   (1) whether Dr. Fenichel’s testimony was incompetent because she
rejected Claimant’s acknowledged work injury; (2) whether the WCJ erred in


      5
         See Shuster v. Workers’ Comp. Appeal Bd. (Pa.                  Human Relations
Comm’n), 745 A.2d 1282 (Pa. Cmwlth. 2000), appeal denied, 781 A.2d 151 (Pa. 2001).



                                          7
finding that Claimant had the burden to show continued disability; and (3) whether
the WCJ erred by taking an adverse inference from Claimant’s failure to introduce
a death certificate.6
               In a termination proceeding, the employer bears the burden of proof to
establish that the work injury has ceased.7 Udvari v. Workmen’s Comp. Appeal Bd.
(USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997). An employer may satisfy this
burden by presenting unequivocal and competent medical evidence of the
claimant’s full recovery from her work-related injuries. Westmoreland Cnty. v.
Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008).
               Claimant argues that the WCJ erred in concluding that Dr. Fenichel’s
testimony was unequivocal and constituted competent medical evidence, because
Dr. Fenichel rejected Claimant’s acknowledged work injury. Employer argues that

       6
         In reviewing an appeal from a decision of an administrative agency, our scope of review
is limited to determining whether any constitutional rights have been violated, whether any
errors of law exist, or whether necessary findings of fact are supported by
substantial evidence.     Philadelphia Newspapers, Inc. v. Workers’ Comp. Appeal Bd.
(Guaracino), 675 A.2d 1213, 1215 (Pa. 1996). When questions of law are presented, our scope
of review is plenary. Taulton v. Workers’ Comp. Appeal Bd. (USX Corp.), 713 A.2d 142
(Pa. Cmwlth. 1998).
       7
          As a point of clarification, Employer did not file a termination petition in the instant
case. See Frontini v. Workers’ Comp. Appeal Bd. (Parks Moving & Storage), 702 A.2d 8
(Pa. Cmwlth. 1997) (holding that employer need not file a termination petition when claimant on
notice that employer is seeking termination of benefits), appeal denied, 724 A.2d 936 (Pa. 1998).
Rather, as a result of Employer’s deemed admissions, Claimant’s disability was presumed to be
ongoing, and Employer offered evidence that Claimant was fully recovered from any
work-related injury in order to rebut this presumption. The WCJ credited Employer’s evidence
and found Claimant had fully recovered as of January 27, 2010. The WCJ, therefore, awarded
workers’ compensation benefits for a closed period of time (i.e., from the date of injury to the
date of full recovery), which resulted in Claimant’s benefits being terminated. Our analysis,
therefore, as to whether the WCJ and Board properly terminated Claimant’s benefits is the same
as if Employer had filed a termination petition.



                                                8
Dr. Fenichel’s testimony is competent medical evidence, because Dr. Fenichel
assumed that a work-related injury occurred but concluded that Claimant had fully
recovered as of the date of her examination.
            We have consistently held that a medical opinion that does not
recognize the work-relatedness of an injury previously determined to be
work-related is insufficient to support a termination of benefits. Westmoreland
Cnty., 942 A.2d at 218. If a physician, in his or her medical opinion, does not
believe that the claimant suffered a work-related injury, but assumes based on the
record that a work-related injury occurred, that physician may competently testify
that the claimant has fully recovered from any presumed injury. Id. at 219; To v.
Workers’ Comp. Appeal Bd. (Insaco, Inc.), 819 A.2d 1222, 1225 (Pa.
Cmwlth. 2003). A physician’s testimony may also be considered competent where
the physician notes that there is no indication of a present injury, but goes on to
opine that the claimant has made a full and complete recovery from any
injury he or she may have sustained during the course of her employment. Jackson
v.   Workers’    Compensation      Appeal      Board   (Resources    for   Human
Development), 877 A.2d 498, 503 (Pa. Cmwlth. 2005).
            In contrast, we have held a medical expert’s testimony to be
incompetent where that expert testifies that the claimant suffered from an injury
different from the accepted work injury and has subsequently recovered from an
injury other than the accepted work injury.      See Gillyard v. Workers’ Comp.
Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth.) (holding
employer’s medical expert’s testimony was incompetent where employer’s doctor
believed that work injury was lumbar sprain instead of accepted work injury of
chronic sciatica and specifically testified that claimant had not recovered from


                                         9
anything other than lumbar sprain), appeal denied, 882 A.2d 1007 (Pa. 2005); GA
& FC Wagman, Inc. v. Workers’ Comp. Appeal Bd. (Aucker), 785 A.2d 1087
(Pa. Cmwlth. 2001) (holding employer’s medical expert’s testimony was
incompetent where expert testified that claimant was fully recovered from sprain
and degenerative disc disease, but not from exacerbation of pseudoarthrosis, which
was accepted work injury).
            In the instant case, Dr. Fenichel testified that it was her opinion that
“[Claimant] did not sustain any psychiatric injury as a result of the injury date
noted as [December 23, 2008.]” (Reproduced Record (R.R.) at 58-59). Claimant’s
counsel later asked Dr. Fenichel to assume that Claimant suffered a work-related
injury:

            Q: . . . Because of this legal issue, I need you to assume
            that some work injury occurred on [December 23, 2008.]
                   Within a reason[able] degree of medical certainty,
            do you have an opinion as to whether Ms. Durbin fully
            recovered from any work injury that she may have
            sustained?     We will give this an entry date of
            [December 23, 2008.]
            A: Yes.
                   I have an opinion. It’s my opinion that Ms. Durbin
            had fully recovered from any work injuries she may have
            sustained as of the date of my evaluation of her on
            [January 27, 2010.]
(R.R. at 67-68). Assuming that Claimant had sustained a work injury, Dr. Fenichel
concluded within a reasonable degree of medical certainty that Claimant had fully
recovered from any mental injury sustained during the course of her employment.
See To, 819 A.2d at 1225 (holding that employer’s medical expert’s testimony was
competent where expert testified that “it was his opinion, within a reasonable
degree of medical certainty, having reviewed all the records, performed an

                                        10
examination and taken a history, that since there was no evidence of medical
impairment, Claimant had made a full and complete recovery from any injury he
may have sustained in the course of his employment.”). Thus, Dr. Fenichel’s
testimony was competent medical testimony, and the WCJ did not err in relying on
her testimony as substantial evidence that Claimant had fully recovered from any
work-related injuries.
             Claimant also argues that the WCJ erred in placing the burden on her
to demonstrate continued disability and in imposing an adverse inference due to
Claimant’s failure to produce a death certificate for her grandmother. Employer
does not argue that the WCJ did not err in either respect, but instead it argues that
any such errors were harmless.
             The Board acknowledged that the WCJ erred in placing the burden on
Claimant to establish ongoing disability. (S.R.R. at 18b n.4). The Board, however,
also noted that the error was harmless because Employer had otherwise met its
burden of proving that Claimant had fully recovered from her work injury. We
have previously held that the misplacement of the burden of proof may constitute
harmless error if there would not have been a different result had the
burden been correctly placed.          City of Philadelphia v. Civil Service
Comm’n, 824 A.2d 346, 349 (Pa. Cmwlth. 2003), aff’d, 879 A.2d 146 (Pa. 2005).
Here, the record and the WCJ’s findings of fact clearly demonstrate that the
outcome would not have changed had the WCJ placed the burden of proof on
Employer. The WCJ found Dr. Fenichel’s testimony that Claimant had fully
recovered from her injury to be more credible than Dr. Rieger’s testimony.
Considering the surveillance video and the article demonstrating that Claimant was
running for public office, the WCJ concluded that Claimant was not a recluse.


                                         11
Based on these findings, the WCJ concluded that Claimant no longer suffered from
an ongoing mental disability. This evidence was sufficient to carry Employer’s
burden to rebut the presumption that Claimant’s disability was ongoing, and, in
fact, Employer met its burden to establish that it was entitled to a termination of
benefits because Claimant had fully recovered from her injury. Thus, Claimant
could not have obtained a different outcome had the burden been correctly placed.
                 Claimant also argues that the WCJ imposed an adverse inference due
to Claimant’s failure to produce her grandmother’s death certificate. We note that
the WCJ did not expressly state that she was imposing an adverse inference, but
instead, simply mentioned in her findings of fact that Claimant did not produce a
death certificate.     To the extent that the WCJ may have imposed an adverse
inference from Claimant’s failure to produce a death certificate, we hold that such
an imposition constitutes harmless error. Employer did not contest that Claimant’s
grandmother was actually ill or dying, and the WCJ did not note any doubt
regarding Claimant’s grandmother’s condition.        Instead, the WCJ found that
Claimant’s ability to visit her grandmother supported a finding that Claimant was
not so fearful of her former workplace that it would preclude her from visiting a
sick relative.
                 Claimant’s ability to enter her former workplace, along with other
evidence, supported the WCJ’s finding that Claimant was not a recluse. As noted
above, the WCJ had substantial evidence, such as the surveillance videos and the
article demonstrating that Claimant was running for public office, to support this
finding regardless of any adverse inference. Thus, the WCJ’s finding that claimant
was not a recluse was supported by substantial evidence other than the fact that
Claimant visited her grandmother in the hospital. See Gallo v. Workers’ Comp.


                                          12
Appeal Bd. (United Parcel Service), 504 A.2d 985, 988 (Pa. Cmwlth. 1986); see
also In re Pender, 25 A.3d 453, 457 (Pa. Cmwlth. 2011) (“Even if [the trial court]
did rely on that testimony, if anything, it was harmless error because there was
more than sufficient evidence to support the trial court’s conclusion.”), appeal
denied, 38 A.3d 827 (Pa. 2012).     Accordingly, any error in imposing an adverse
inference from Claimant’s failure to produce a death certificate is harmless.
             For the reasons set forth above, the Board did not err in concluding
that the WCJ properly considered Dr. Fenichel’s testimony as competent medical
evidence in support of the termination of Claimant’s benefits. Further, the Board
did not err in concluding that any errors by the WCJ regarding the burden of proof
and an adverse inference from Claimant’s failure to produce a death certificate
constitute harmless error.
             Accordingly, we affirm the Board’s order.




                                P. KEVIN BROBSON, Judge




                                         13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lanetta Durbin,                        :
                        Petitioner     :
                                       :
            v.                         :   No. 289 C.D. 2016
                                       :
Workers’ Compensation Appeal           :
Board (Pennsylvania Hospital of        :
the University of PA Health System),   :
                        Respondent     :



                                     ORDER


            AND NOW, this 21st day of November, 2016, the order of the
Workers’ Compensation Appeal Board is AFFIRMED.




                              P. KEVIN BROBSON, Judge
