          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lianqin Zhang,                          :
                        Petitioner      :
                                        :
            v.                          :   No. 2151 C.D. 2014
                                        :   Submitted: May 29, 2015
Workers’ Compensation                   :
Appeal Board (Penn State Milton         :
S. Hershey Medical Center and           :
Inservco Insurance Services),           :
                         Respondents    :


BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: August 5, 2015

            Petitioner Lianqin Zhang (Claimant), pro se, petitions for review of an
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of a Workers’ Compensation Judge (WCJ). The WCJ denied Claimant’s
claim petition. We now affirm.
            Claimant was employed by Penn State Milton S. Hershey Medical
Center (collectively with Inservco Insurance Services, Employer) as an electron
microscopy (EM) technician. Claimant’s job duties included processing tissue
samples. Claimant worked in three rooms in Employer’s lab: the dark room, the
EM room, and the sample processing room. Work in the sample processing room
included the use of various chemicals, but the room contained a fume hood, which
shielded employees from the chemicals. Claimant also worked with chemicals in
the dark room where there was no fume hood.                   During the course of her
employment, Claimant was exposed to nineteen different chemicals. Claimant
began to develop symptoms, and, on September 29, 2011, she filed a claim petition
alleging that she had sustained a “[r]espiratory tract injury with asthma; gastritis;
anemia; and depression related to chemical exposure at work.” (Certified Record
(C.R.) at 1.)1    Employer filed an answer denying the material allegations of
Claimant’s claim petition, and the matter was assigned to a workers’ compensation
judge (WCJ).
              At the hearing before the WCJ, Claimant testified that she worked for
Employer for six months—from February 14, 2011, through August 10, 2011.
(Notes of Testimony (N.T.), 8/2/12, at 12.) Claimant testified that the fume hood
in the sample processing room consisted of a deflector shield and a sash. (Id. at
19.) When she worked, the sash was raised and her hands were in direct contact
with the materials with which she was working. (Id.) Claimant felt that her
breathing was obstructed in the sample processing room. (Id. at 27.) Employer did
not provide Claimant with safety training or warnings concerning the exposure to
chemicals. (Id. at 29-30.) Although Claimant wore a lab coat and gloves in the
sample processing room, Employer did not provide her with additional protective
gear. (Id. at 30.) Claimant worked five-to-seven hours a day in the sample
processing room. (Id. at 31.) In the dark room, Claimant developed films from the
electron microscope. (Id. at 33.) Her work involved processing film in various


       1
          By Order dated May 5, 2015, this Court granted a motion which excused Claimant from
filing a reproduced record.



                                             2
solutions, which were placed in open pans. (Id.) Because the pans were open,
Claimant was exposed to the chemical fumes emanating from the solutions. (Id.)
Claimant spent three-to-four hours a day in the dark room. (Id. at 33-34.)
               Claimant began to develop symptoms, such as chest pain, one or two
weeks after she began working for Employer. (Id. at 50.) She lost her sense of
both taste and smell in June 2011.       (Id.)    In May 2011, Claimant told her
supervisor, Patricia Karlisch, that Claimant believed her symptoms were
work-related. (Id. at 53.) Claimant then developed depression and asthma, which
she also believed to be work-related.        (Id. at 80-83.)   Ms. Karlisch directed
Claimant to visit a panel physician, who ultimately advised that Claimant could
work full duty but should refrain from working with chemicals. (Id. at 60-67.)
Claimant’s primary care physician and Claimant’s pulmonologist, Rebecca
Bascom, M.D., both recommended medical leave.             (Id. at 70-74.)    Employer
granted Claimant an extended leave of absence, but Employer terminated her
employment on November 28, 2011, because she failed to return to work. (Id. at
78-79.)   Claimant’s symptoms did not improve after her employment was
terminated, even after mold was removed from her home. On February 10, 2012,
the Occupational Safety and Health Administration (OSHA) cited Employer for,
inter alia, failing to maintain the fume hood in good, working condition, failing to
monitor Claimant for signs of chemical exposure, and failing to train Claimant
about the hazards of chemical exposure. (C.R., OSHA Inspection Detail.)
               Claimant presented the deposition testimony of Margit Bleecker,
M.D., Stella Hines, M.D., Barbara Kuhlengel, M.D., and Michael Geppert.
Dr. Bleecker     diagnosed   Claimant   with     severe   clinical   depression   and
encephalopathy from toxic exposure.       (Bleecker Dep. at 19, 25.)        Dr. Hines


                                         3
diagnosed Claimant with occupational asthma. (Hines Dep. at 22.) Dr. Kuhlengel
diagnosed Claimant with major depressive disorder and acute stress disorder.
(Kuhlengel Dep. at 12.) All three doctors testified that Claimant’s conditions were
work-related. Michael Geppert, whose company tested the sample processing
room fume hood on April 9, 2010, and October 3, 2011, testified that the fume
hood did not meet the American National Standards Institute (ANSI) standards for
laboratory fume hood air flow during the April 2010 inspection. (Geppert Dep. at
7-8.) During the October 2011 inspection, the fume hood only passed inspection
because the sash was not opened widely. (Id. at 13-14.) Despite the failure to
conform to ANSI standards, air was still flowing through the fume hood. (Id. at
21-22.)
            Ms. Karlisch and Douglas Kuhn, Ph.D., testified before the WCJ on
behalf of Employer. Ms. Karlisch testified that despite Claimant’s contentions,
Employer provided Claimant with protective safety gear, including a lab coat,
gloves, splash shield, and a safety mask. (N.T., 10/31/12, at 59, 64.) Ms. Karlisch
further testified that Employer warned Claimant about the hazardous chemicals, as
signs were posted in the lab area and Claimant signed the material safety data
sheets (MSDS), which provided all relevant information about the chemicals. (Id.
at 56.) Claimant also received safety training concerning the use of some of the
chemicals. (Id. at 17-18.) Claimant did not inform Ms. Karlisch that she believed
her symptoms to be work-related until July 2011. (Id. at 68.) Although Claimant
testified that she worked in the sample processing room for five-to-seven hours a
day, Ms. Karlisch explained that such a schedule was not possible given
Claimant’s time sheet. (Id. at 59-63.) Dr. Kuhn testified that the fume hood did
not meet institutional standards in April 2010 and July 2011, but it did meet


                                        4
institutional standards in November 2010. (N.T., 12/4/12, at 12-14.) Even when
the fume hood did not meet institutional standards, air was always flowing through
it. (Id. at 16-17.)
              Employer presented the deposition testimony of Jeff Marshalek, Scott
Manaker, M.D., and Wolfram Rieger, M.D. Mr. Marshalek testified that his job
duties include testing the ventilation in Employer’s facility. (Marshalek Dep. at 7.)
After testing the dark room ventilation on August 9, 2011, Mr. Marshalek found
that the ventilation exceeded minimum requirements. (Id. at 11.) Dr. Rieger
testified that he performed an independent psychiatric evaluation of Claimant. He
diagnosed Claimant with somatoform disorder, which was unrelated to her
employment. (Rieger Dep. at 43, 65-66.) Claimant did not suffer from clinical
depression or anxiety. (Id. at 41-42.) Dr. Rieger explained that somatization
occurs when inner conflict is expressed through vague, physical complaints. (Id. at
42.) He opined that Claimant could function well in a related field. (Id. at 45.)
Dr. Manaker also opined that Claimant was expressing symptoms of somatization,
although he linked it to major depression. (Manaker Dep. at 45.) He testified that
after examining Claimant, there was “no evidence whatsoever of any respiratory or
pulmonary occupational, work-related, chemical-exposure-related injury, illness,
disease, disorder, [or] condition.” (Id. at 48.)
              The WCJ denied Claimant’s claim petition and concluded that
“Claimant failed to meet her burden of proving that she sustained a work-related
injury while employed by [Employer].” (WCJ Decision at 53.) In so doing, the
WCJ determined that the testimony of Claimant, Dr. Bleecker, Dr. Hines, and
Dr. Kuhlengel was not credible.       The WCJ determined that the testimony of
Ms. Karlisch, Mr. Geppert, Dr. Kuhn, Mr. Marshalek, Dr. Manaker, and Dr. Rieger


                                           5
was credible. Claimant appealed to the Board, which affirmed the WCJ’s decision.
Claimant now petitions this Court for review.
               On appeal,2 Claimant argues that the Board’s incorrect description of
Claimant’s work history indicates that the Board failed to consider the evidence in
this matter, that the record does not contain admissible evidence, that the WCJ’s
credibility determinations regarding Claimant, Dr. Kuhn, Dr. Manaker, and
Dr. Rieger were not reasoned, and that she was deprived of her constitutional right
to a fair trial.3
               Claimant first argues that the Board’s description of her work history
is inconsistent with the WCJ’s findings concerning her work history and, therefore,
the Board failed to properly consider all the evidence in this matter. The Board, in
summarizing her work history, stated that “Claimant worked for Penn State
University College of Medicine for thirteen years as an [EM] technician.” (Bd.
Op. at 2.) The WCJ, however, found that Claimant “did research only and no EM
work” during the course of her employment at Penn State University College of
Medicine. (WCJ Decision, F.F. No. 7.) We agree that the Board’s description of
Claimant’s employment history is inconsistent with the WCJ’s findings. The


       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       3
          Employer contends that Claimant’s appeal should be quashed for her failure to abide by
Pa. R.A.P. 2101 and Pa. R.A.P. 2152-54. This Court has already addressed this issue by granting
Claimant’s motion to be excused from filing a reproduced record and dismissing Employer’s
motion to quash, in which Employer made the same arguments concerning Claimant’s failure to
file a reproduced record. (Order of Senior Judge Oler, May 1, 2015). We decline to revisit the
Court’s rulings on these matters.



                                               6
Board’s misstatement, however, does not constitute reversible error. Claimant’s
work history is not material to the central issue of this matter—namely, whether
Claimant suffered a work-related injury. See Benson v. Workmen’s Comp. Appeal
Bd. (Haverford State Hosp.), 668 A.2d 244, 248-49 (Pa. Cmwlth. 1995).
Accordingly, we reject Claimant’s argument that the Board’s incorrect description
indicates that the Board failed to consider the evidence in this matter.
               Claimant next takes issue with some of the evidence either included or
not included in the certified record. Specifically, Claimant contends that the record
is missing documentation concerning the OSHA inspection as well as a
maintenance work order, dated October 14, 2011, for the fume hood. She also
contends that the WCJ erroneously admitted an irrelevant formaldehyde vapor
analysis report.4
               Claimant’s arguments concerning the OSHA inspection record and the
maintenance work order have already been rejected by this Court.                              On
March 30, 2015, Claimant filed a motion to supplement the evidence in this Court,
seeking to supplement the record with these documents.                       By Order dated
April 7, 2015, Senior Judge Oler denied Claimant’s motion and concluded that
“the documents with which [Claimant] seeks to supplement the record are already
contained therein (Exhibit C-19, and OSHA detail sheet . . . ) or were not admitted
into evidence (work order 295385[, dated October 14, 2011] . . . ).” We decline to
revisit this decision.


       4
         Claimant further appears to argue that the record improperly contains black and white
photos of the fume hood, rather than color photos. After a careful review of the certified record,
we have ascertained that it contains color photos. We, therefore, reject Claimant’s argument
concerning the color photos.



                                                7
               Claimant also argues that the WCJ erroneously admitted an irrelevant
formaldehyde vapor analysis report, regarding the functionality of the fume hood,
which was tested six months after Claimant left her employment with Employer.
“[I]t is well-settled that workers’ compensation judges are not bound by either
common-law or statutory rules of evidence.” LeDonne v. Workers’ Comp. Appeal
Bd. (Graciano Corp.), 936 A.2d 124, 130 (Pa. Cmwlth. 2007). The Administrative
Agency Law5 provides: “Commonwealth agencies shall not be bound by technical
rules of evidence at agency hearings, and all relevant evidence of reasonably
probative value may be received.” 2 Pa. C.S. § 505. “This statutory maxim has
been correctly interpreted to mandate a relaxation of the strict rules of evidence in
hearings and proceedings, such as those held by a WCJ.” Gibson v. Workers’
Comp. Appeal Bd. (Armco Stainless and Alloy Prods.), 861 A.2d 938, 947 (Pa.
2004). If the evidence was inadmissible, this “Court must determine whether,
excluding the inadmissible [evidence], the factual findings to which that evidence
related are nonetheless supported by substantial evidence.” Cruz v. Workers’
Comp. Appeal Bd. (Phila. Club), 728 A.2d 413, 416 (Pa. Cmwlth. 1999).
               The fume hood’s functionality in 2012, while not the most probative
evidence available to the WCJ, is relevant and reasonably probative on the issue of
whether the fume hood was sufficiently operational to protect employees. The
admitted evidence tracked inspections and repairs from 2010 through 2012, both
before and after Claimant’s employment with Employer. Further, regardless of the
document’s admissibility, the WCJ’s findings regarding the fume hood did not rely
solely on the 2012 report.          The WCJ relied on the testimony of Dr. Kuhn,

      5
          2 Pa. C.S. §§ 501-08, 701-04.



                                            8
Mr. Geppert, and Mr. Marshalek in finding that the fume hood worked during
Claimant’s employment with Employer.          Accordingly, we reject Claimant’s
argument that the WCJ erroneously admitted irrelevant evidence.
            Claimant next argues that the WCJ’s credibility determinations
regarding Claimant, Dr. Kuhn, Dr. Manaker, and Dr. Rieger are not reasoned. “[I]t
has long been recognized that the WCJ has the exclusive authority to make
findings of fact and credibility determinations.”     Daniels v. Workers’ Comp.
Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). These findings,
however, must be supported by adequate reasons for accepting or rejecting
conflicting evidence. Id.; Section 422(a) of the Workers’ Compensation Act, Act
of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. Where the WCJ has
observed witnesses testify, “it is appropriate for the [WCJ] to base his or her
determination upon the demeanor of the witnesses.” Daniels, 828 A.2d at 1052. If
a WCJ does not observe a witness’s demeanor, the WCJ must articulate an actual
objective basis which supports the credibility determination. Id.
            Claimant first contends that the WCJ’s reasons for finding Claimant
not credible were insufficient. Specifically, Claimant takes issue with one of the
inconsistencies in Claimant’s testimony that the WCJ identified while explaining
why he did not believe that Claimant was credible. The WCJ noted that while
Claimant claimed that she processed samples every day, Ms. Karlisch “established
that there were several days each week that Claimant did not have to process
samples.” (WCJ Decision at 50.) Claimant suggests that this determination is
erroneous, because even if Claimant only received samples a few times a week, it
took three days to process the samples. With respect to the number of days each
week that Claimant had to process samples, Ms. Karlisch testified:


                                         9
               Q.     And then the next question [asked of Claimant]
               was, were there days when you were not exposed at all to
               these chemicals. [Claimant responded: “]No, every day.
               I received new samples every day.[”]
               A.     That is not true. From the data I was able to pull
               from the records that we have with the [samples], every
               single week there was one of two days that there were no
               [samples] delivered. When you’re processing, they sit
               for 20 minutes or 30 minutes in whatever vial they’re in.
               You are not exposed to them every moment of every
               hour of every day.
(N.T. 10/31/12, at 67.) From the record, it is unclear whether Ms. Karlisch was
countering Claimant’s testimony regarding her daily exposure to chemicals or the
frequency with which she received samples. Even if the WCJ mischaracterized the
testimony, however, the WCJ identified several additional inconsistencies that
support his determination as to Claimant’s credibility.6                   These evidentiary
inconsistencies were sufficient, objective reasons for the WCJ to determine that
Claimant’s testimony was not credible. Further, the WCJ was able to observe the
Claimant’s demeanor, which alone is a sufficient basis to find her not credible.




       6
          The WCJ noted that Claimant’s testimony conflicted with medical records, Claimant’s
work history, and the testimony of credible witnesses with respect to the protective equipment
provided by Employer, the warnings concerning the lab chemicals, the timing of Claimant’s
communication of her work injury to Employer, the number of hours Claimant spent working in
the sample processing room, and the improvement of Claimant’s symptoms after mold was
removed from her home. With respect to the warnings for lab chemicals, Claimant suggests that
although she reviewed the MSDS sheets, such a review was not a proper substitute for formal
safety training. She further suggests that while she did work with the same chemicals in the past,
it was under safe conditions. Neither of these contentions, however, affects the inconsistency
identified by the WCJ—namely, that Claimant testified that there were no warnings for the lab
chemicals, yet, Claimant had reviewed the MSDS sheets and had worked with the same
chemicals in the past.



                                               10
Daniels, 828 A.2d at 1052. We, therefore, reject Claimant’s argument that the
WCJ’s reasons for determining that Claimant was not credible were insufficient.7
              Claimant next argues that the WCJ’s credibility determination
concerning Dr. Kuhn was insufficiently reasoned.                   Claimant contends that
Dr. Kuhn’s testimony that the fume hood worked and presented minimal risk to
employees conflicts with OSHA’s finding that the fume hood did not function
properly and put employees at risk, and, therefore, Dr. Kuhn’s testimony was not
credible.     Despite Claimant’s contentions, however, the resolution of an
evidentiary conflict does not render the WCJ’s credibility determination
unreasoned.      Cittrich v. Workmen’s Comp. Appeal Bd. (Laurel Living Ctr.),
688 A.2d 1258, 1259 (Pa. Cmwlth. 1997) (explaining that determinations
concerning weight given to conflicting evidence are solely for WCJ). The WCJ’s
reasons for finding Dr. Kuhn credible were Dr. Kuhn’s inspection of the fume
hood, Dr. Kuhn’s “impressive credentials,” and his understanding of Employer’s
exhaust systems.        (WCJ Decision, F.F. 222.)            Further, the WCJ observed
Dr. Kuhn’s demeanor when Dr. Kuhn testified, which, as noted above, is a
sufficient basis for determining that Dr. Kuhn was credible. We, therefore, reject
Claimant’s argument that the credibility determination regarding Dr. Kuhn was
insufficiently reasoned.
              Claimant next contends that the credibility determinations regarding
Dr. Manaker and Dr. Rieger are not reasoned because the doctors’ opinions
conflict with each other. Claimant notes that Dr. Manaker diagnosed Claimant

       7
         Claimant also appears to argue that Ms. Karlisch’s testimony should be considered not
credible. Ms. Karlisch testified before the WCJ, and, therefore, the WCJ could have found her to
be credible based upon her demeanor, without providing reasons for the determination.



                                              11
with depression, while Dr. Rieger diagnosed Claimant with somatization disorder.
According to Claimant, such an inconsistency renders the WCJ’s credibility
determinations in this regard unreasoned.             The WCJ, however, accepted the
testimony of Dr. Manaker and Dr. Rieger for different purposes. “The WCJ has
broad discretionary powers and may accept or reject testimony of any witness in
whole or in part.” Sergeant v. Workmen’s Comp. Appeal Bd. (Interim Pers.),
686 A.2d 902, 904 (Pa. Cmwlth. 1996). With respect to Dr. Manaker, the WCJ
noted that he “credibly testified that there is no evidence whatsoever that Claimant
has        any   respiratory       or     pulmonary,        occupational,       work-related,
chemical-exposure-related injury, illness, disease, disorder, or condition.” (WCJ
Decision at 51.)       Further, the WCJ accepted Dr. Manaker’s testimony “that
Claimant’s somatic complaints do not demonstrate the presence of a true disease.”
(Id. at 51-52.) The WCJ did not accept Dr. Manaker’s testimony that Claimant
suffered from depression. Rather, the WCJ determined that Dr. Rieger’s testimony
was “credible in its entirety” and noted that Dr. Rieger “opined that Claimant
suffers from somatization disorder.” (Id. at 52-53.) The WCJ, therefore, accepted
Dr. Rieger’s testimony concerning Claimant’s psychiatric diagnosis8 and accepted


       8
         Claimant contends that Dr. Rieger “did not use evidence from the[] record” in rendering
his opinion that Claimant suffered from somatization disorder. (Cl. Br. at 15.) Claimant points
to Dr. Rieger’s belief that Claimant’s disorder resulted from an unhappy childhood in China
during the Cultural Revolution as proof that Dr. Rieger’s opinion was based on conjecture.
Claimant argues that Dr. Rieger’s opinion conflicts with records indicating that she had a happy
childhood. Dr. Rieger, however, testified that he spent fourteen hours reviewing Claimant’s
medical records and the WCJ found that “Dr. Rieger based his opinions on the voluminous
amount of records showing that Claimant treated for many years for a number of different
complaints that were worked up but never found to have an anatomical basis.” (Rieger Dep., at
11; WCJ Decision at 53.) Accordingly, we reject this argument.



                                              12
Dr. Manaker’s testimony that Claimant did not suffer an injury or illness.
Although Dr. Rieger and Dr. Manaker’s opinions concerning Claimant’s diagnosis
may have conflicted, the WCJ’s resolution of those opinions was within the WCJ’s
purview. We, therefore, reject Claimant’s argument that the WCJ’s credibility
determinations regarding Dr. Rieger and Dr. Manaker are not reasoned.
             Lastly, Claimant argues that her constitutional right to a fair trial was
violated. Specifically, Claimant suggests that the lack of a translator affected her
ability to understand the proceedings. She further contends that the WCJ allowed
Employer’s attorney to make decisions concerning evidence. Claimant, however,
failed to raise these arguments before the Board. The Pennsylvania Rules of
Appellate Procedure provide that “[n]o question shall be heard or considered by
the court which was not raised before the government unit.” Pa. R.A.P. 1551(a).
This issue is, therefore, waived.
             Accordingly, we affirm the Board’s order.




                                    P. KEVIN BROBSON, Judge




                                          13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lianqin Zhang,                         :
                        Petitioner     :
                                       :
            v.                         :   No. 2151 C.D. 2014
                                       :
Workers’ Compensation                  :
Appeal Board (Penn State Milton        :
S. Hershey Medical Center and          :
Inservco Insurance Services),          :
                         Respondents   :


                                     ORDER


            AND NOW, this 5th day of August, 2015, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
