Opinion
No. 1700 C.D. 2012
06-11-2013
Dinknesh T. Kussie, Petitioner v. Workers' Compensation Appeal Board (Yoder Brothers, Inc.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Dinknesh T. Kussie, pro se, petitions this court for review of the order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of the Workers' Compensation Judge (WCJ) dismissing her claim petition, her reinstatement petition, and her penalty petition filed against Yoder Brothers, Inc., (Employer). After review, we affirm.
On September 21, 2004, Claimant suffered an injury when bleach splashed into her eye while she was cleaning a knife used in harvesting seedlings. She reported the incident to her supervisor, who provided Claimant with an eye wash after which she continued working. Claimant worked for two more days, despite the pain and sensitivity to light, but on the third day she asked to see an eye specialist, Dr. Sandford Frisch, M.D., who prescribed eye drops and recommended she return to work.
Employer accepted liability for the injury, identified as a mild chemical burn of Claimant's left eye, by issuing a Medical Only-Notice of Compensation Payable on or about October 12, 2004.
We note that the WCJ found that Claimant sustained a mild chemical burn "to both eyes" from which she "was released on November 5, 2004 by Dr. Frisch." WCJ's Decision, Finding of Fact No. 27.
On February 1, 2008, more than three years after the work injury, Claimant filed a claim petition seeking payment of medical bills and counsel fees; a reinstatement petition alleging that her injury of September 21, 2004, recurred as of March 1, 2005; and a penalty petition, seeking fifty percent penalties for Employer's allegedly "lulling claimant into believing that proper documents were issued to [the] Bureau [of Workers' Compensation]." Penalty Petition, Original Record (O.R.) Item 7. Employer filed answers denying the allegations.
Because Claimant's counsel withdrew prior to the first hearing, the WCJ scheduled a second hearing to allow Claimant time to find new counsel. Following another continuance by the WCJ in order to allow the parties to pursue mediation, a third hearing was held at which Claimant did not appear, and the case was dismissed. Following an appeal, the Board remanded the matter back to the WCJ where hearings followed.
On remand, Claimant appeared pro se and the WCJ advised her that she had a right to have an attorney and that she would have an opportunity to testify and present evidence. Claimant testified that, "I can work, but I need to compensate . . . I have to pay for my sights, and glass[es] and for any medical bills." Hearing of January 6, 2010, Notes of Testimony (N.T.), at 11-12. Claimant agreed that the issue was the payment of past, current and future medical bills, and testified that, "I need to be paid because the injury happened in my work . . . ." Id. at 12.
In support of her petitions, Claimant submitted a large number of documents, over opposing counsel's objection, including what appears to be a print-out from Wal-Mart Pharmacy for various prescriptions for different time periods; a print-out from Family Eye Group listing Claimant's office visits to that specialty from April 2006, through February 2008; and various medical bills alleged to have been unpaid. Her documentation also included a utilization review determination concluding that the treatment under review was reasonable and necessary. In addition, Claimant provided two letters from her treating physician. These letters stated in pertinent part that he was treating Claimant for a "severe dry eye" and he had prescribed custom eyeglasses for Claimant's "refractive error." (Claimant's Exhibits C-4, C-5). In opposition, Employer presented the medical report of Dr. Adam J. Altman, M.D., who opined that Claimant's current eye problems were not likely to be related to the work injury, due to the very mild nature of the initial injury.
According to the record, the reason given for the utilization review request was to "determine the reasonableness and necessity of the following treatment: All treatments and therapies administered from 1-05-07 and ongoing." Claimant's Exhibit C-2 at 5. The provider under review, Alexander Dastgheib, M.D., is a physician with Family Eye Group. In the discussion section, the reviewer stated that, "[t]he two visits that did occur and are under review are for the diagnosis of episcleritis. The documentation provided supports the treatment under review . . . Thus all treatments and therapies by Dr. Dastgheib and all others of like specialty is reasonable and necessary 1/5/07 and ongoing." Id. at 7.
After the record was closed, the WCJ once again dismissed Claimant's petitions. The WCJ found that Claimant was credible as to the initial occurrence of the incident at work and the initial medical treatment rendered, as it was consistent with Employer's medical-only NCP and Dr. Frisch's medical report forms. WCJ's Findings of Fact, No. 24. However, the WCJ did not find Claimant credible with regard to her alleged ongoing disability and need for further medical treatment, finding that "[t]here has been no competent evidence presented which adequately explains the relation between the work injury and the necessity for ongoing medical treatment or ongoing disability." WCJ's Findings of Fact, No. 25. In addition, the WCJ found:
27. This Judge finds the Claimant sustained a mild chemical burn to both eyes on September 21, 2004 to from [sic] which she was released on November 5, 2004 by Dr. Frisch.WCJ's Decision at 9. The WCJ concluded that Claimant failed to sustain her burden of proof with respect to each petition and therefore denied all three petitions. After the Board affirmed, Claimant petitioned this court for review.
28. This Judge finds there was no competent evidence presented which establishes any period of disability subsequent to the September 21, 2004 injury as Dr. Frisch never disabled Claimant from working in any capacity.
29. This Judge finds there is no competent medical evidence presented by the Claimant which relates the need for ongoing medical treatment after November 5, 2004 to the employment injury of September 21, 2004. Claimant's medical expert, Eric Singman, M.D., rendered an opinion which were [sic] equivocal at best and are inadequate to base any finding of fact.
On appeal, giving Claimant's pro se appeal a very liberal reading, the only issue preserved for review is whether the Board erred in affirming the denial of her petition (treated by the WCJ as a medical review petition), because the utilization review determination requires Employer to continue paying for visits and treatment for her injured eyes.
Claimant also asserted that the WCJ erred in finding that she chose to proceed without counsel, "without making any independent assessment of [her] situation," (Claimant's Brief at 6), and that she made it clear to the WCJ on numerous occasions that she was making a "significant effort to look for [an attorney] to assist [her]" with her case, but that she "failed every time." Petition for Review (PFR), at 4. Although this issue was not sufficiently addressed in Claimant's brief, we find no merit to this contention. There is no provision under the Act which requires that a claimant be represented by counsel. See Mitchell v. Workmen's Comp. Appeal Bd. (Neal Tree Service), 565 A.2d 224 (Pa. Cmwlth. 1989). Indeed, the substantive due process right to effective assistance of counsel has never been extended to civil or administrative proceedings, but rather is limited to a review of criminal prosecutions. Johnson v. Workmen's Comp. Appeal Bd., 321 A.2d 728 (Pa. Cmwlth. 1974). It is clear from the record that the WCJ offered Claimant the time and opportunity to seek legal representation and Claimant chose not to do so. Finally, Claimant also argued that Employer's attorney tried to make her abandon her appeal "by requesting to bribe" her, and that she was "approached by the insurance provider's/defendant's underwriter(s) and counsels [sic], verbally, by leaving messages on [her] home phone and in writing to settle the case with a certain amount of money i.e. $1000.00. . . ." PFR at 4; Claimant's Brief at 10. Because Claimant did not raise this issue before the WCJ or the Board, it is waived. Budd Baer, Inc. v. Workers' Comp. Appeal Bd. (Butcher), 892 A.2d 64 (Pa. Cmwlth. 2006).
Claimant implies that because the utilization review requested by Employer "was released approving the appropriateness of the treatment, the physician visits and the on-going check up [sic] for the injury," she had sufficient evidence to support her petitions. Claimant's Brief at 8. According to Claimant, the utilization review essentially gave her a "le[g]ally approved benefit and right for treatment and on going [sic] physician visits, which [she] would like to be provided by the Court." Id . at 10.
Claimant's reliance on the utilization review determination, which concerned the reasonableness and necessity of certain medical treatment received by Claimant, is misplaced. Pursuant to the Pennsylvania Code, and in particular, the regulations found at 34 Pa. Code §§ 127.401-.556, a utilization review determination "may not decide any of the following issues . . . [t]he causal relationship between the treatment under review and the employe's work-related injury . . . [or] [w]hether the employe is still disabled." 34 Pa. Code § 127.406(b)(1) and (2). Such questions of causation and disability must be decided by a WCJ and not by a URO. Corcoran v. Workers' Comp. Appeal Bd. (Capital Cities/Times Leader), 725 A.2d 868, 871 (Pa. Cmwlth. 1999) [citing Bloom v. Workmen's Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314 (Pa. Cmwlth. 1996)]. Accordingly, a URO's determination that certain treatment received by a claimant was reasonable and necessary "could not have a preclusive effect on the WCJ's determination regarding the different and discrete issue of whether such treatment was causally related to [the claimant's] compensable work-related injury." Hoffmaster v. Workers' Comp. Appeal Bd. (Senco Products), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998) (footnote omitted).
Clearly, Employer is liable to pay for only those medical expenses arising from and caused by the work-related injury. In most cases, once a work-related injury is established, and there has been no termination, a claimant is not required to continually establish that medical treatment of that injury is causally related. Kurtz v. Workers' Comp. Appeal Bd. (Waynesburg College), 794 A.2d 443, 447 (Pa. Cmwlth. 2002). Where, however, the claimant receives medical treatment for new symptoms that allegedly arise from the work-injury and employer refuses to pay the associated bills, the burden of establishing that the symptoms and treatments are related to the work-injury turns on whether the connection between them is obvious. Id. An "obvious" connection is one involving a "nexus that is so clear that an untrained layperson would not have a problem" in concluding that the new symptoms were related to the work injury. Tobias v. Workmen's Comp. Appeal Bd. (Nature's Way Nursery, Inc.), 595 A.2d 781, 784 (Pa. Cmwlth. 1991). Thus, if the connection is not "obvious," the burden is on the claimant to establish the connection through unequivocal medical testimony. Kurtz; Tobias.
Claimant initially complained of burning, redness and light sensitivity after she splashed bleach in her eye(s) at work. At the first hearing following remand, Claimant testified that "it is [sic] still hurts, my two eyes . . . ." Hearing of January 6, 2010, N.T. at 22. Claimant also stated in the addendum to her petitions that her eyes "have deteriorated due to the uncertainties created by the claim representative" and that she has difficulty in "see[ing] and driv[ing] at night and during glaring lights." Claimant's Exhibit C-1 at 1. Claimant further alleged that "[d]usty conditions at the work place and working small seedlings highly irritate and aggravate my eye injury and make them more painful with severe headache after work." Id . However, Dr. Singman's letters, offered by Claimant in support of her petitions, offer little to no explanation as to what Claimant's current eye problems are and whether these symptoms are related to the initial eye injury. Other than stating that Claimant needs "custom prescription spectacles to see clearly because [she has] a refractive error," Dr. Singman's letters do not explain whether this condition is related to the work injury. Claimant's Exhibit C-5. There is no evidence tying the medical bills to the work related injury and nothing which explains what the prescriptions were or what they were used for.
In this case, there is not an obvious connection between Claimant's current symptoms and the acknowledged work injury described as a mild chemical burn. Nor can it be said that these new symptoms, in particular, her difficulty with driving at night due to glaring lights, severe headaches, and custom prescription eyeglasses to correct a refractive error, are the natural and probable result of the work-injury. Thus, Claimant had the burden of establishing that the symptoms and treatment were causally related to the work injury. In this regard, Claimant simply failed to meet her burden of proof. Dr. Singman's letters lack specificity and speak only of a current eye problem vaguely identified as "refractive error" and fail to connect her current symptoms with the work injury. Moreover, Claimant's documentary evidence, including the print-out from Family Eye Group of her doctors' visits and the list of her prescriptions from Wal-Mart Pharmacy, do not indicate what condition they are intended to treat. Because Claimant failed to prove that her symptoms and medical expenses were causally related to the mild chemical burn she received more than three years earlier, the Board did not err in affirming the WCJ's decision.
We note that, in general, refractive errors occur "when the shape of the eye prevents light from focusing directly on the retina. The length of the eyeball (longer or shorter), changes in the shape of the cornea, or aging of the lens can cause refractive errors." "Facts About Refractive Errors," from the National Eye Institute, part of the National Institutes of Health. http://www.nei.nih.gov/health/errors/errors.asp. --------
Accordingly, we affirm the order of the Board.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 11th day of June, 2013, the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge