J. Chidiac v. WCAB (US Airways, Inc.)

J
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Chidiac,                                  :
                               Petitioner       :
                                                :
                 v.                             :    No. 406 C.D. 2020
                                                :    Submitted: September 18, 2020
Workers’ Compensation Appeal                    :
Board (US Airways, Inc.),                       :
                        Respondent              :



BEFORE:         HONORABLE P. KEVIN BROBSON, Judge1
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                    FILED: March 23, 2021

                James Chidiac (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (the Board) denying his claim for Workers’
Compensation (WC) benefits under the Pennsylvania Workers’ Compensation Act
(Act).2 Claimant alleges that he sustained a work-related injury in the course of his
employment for US Airways, Inc. (Employer). Claimant asserts that the Board erred
in reversing the decision and order of the Workers’ Compensation Judge (WCJ)
granting Claimant’s Claim Petition.             Claimant argues that his testimony was
supported by competent evidence and that the evidence demonstrated work-related
causation for Claimant’s injury. However, the Board denied Claimant WC benefits

       1
       The case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.

       2
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
on the basis that Claimant’s alleged injury was not “obviously” work-related and
that Claimant’s evidence did not support causation. Upon review, we affirm the
Board’s Order.

                                      I.      Background
              Claimant has worked for Employer as a union flight attendant since
2013. Reproduced Record (R.R.) at 49a-50a. On September 20, 2016, Employer
issued a new flight attendant uniform made by Twin Hill.

Id. at 53a, 96a.

Due to a
delay, Claimant received his uniform in October 2016.

Id. at 53a-54a.

After wearing
his uniform, at some time in October 2016, Claimant developed rash-like symptoms
on his neck and below his ear.

Id. at 52-53a.

In November 2016,3 Claimant sought
treatment from his family doctor, Dr. Mark Watkins, D.O., for the rash, which had
spread to other parts of his body.

Id. at 98a.

              Claimant placed Employer on notice of his rash, an alleged work injury,
in April 2017.

Id. at 98a-101a.

Claimant consulted Dr. Watkins, who referred him
to the Asthma Center of Philadelphia for evaluation.

Id. at 99a.

At the time of this
evaluation, Claimant observed that the rash had changed in appearance, covering the
underside of both arms and was raised, not smooth.

Id. Following the onset

of his
symptoms, Claimant filed a Uniform Reactions Report and switched to a second new
uniform, made by Aramark, in early May 2017.

Id. at 101a.

However, after wearing
the alternate uniform, Claimant experienced a rash on his neck and a lump under his

       3
         In his deposition on October 19, 2017, Claimant testified to this November 2016 visit
with Dr. Watkins. However, notes from this encounter are not included in the record. When asked
about this visit during his testimony, Claimant stated:
                Q.      What sort of treatment did Dr. Watkins provide you?
                A.      He adjusted my . . . antianxiety pills. He thought maybe that was causing
                        exhaustion. So, that’s the only thing.
R.R. at 98a (emphasis added). While Claimant repeatedly references this visit as evidence of his
work-related skin condition, we are unable to evaluate the details of the encounter.


                                               2
right armpit.

Id. at 101a-02a.

Claimant once again sought medical treatment and
was ultimately hospitalized at Penn Hospital with cellulitis and a staph infection.

Id.
at 1a, 57a-59a.

             On August 11, 2017, Claimant filed a Claim Petition for WC benefits
from Employer, assigning May 20, 2017, as the alleged injury date.

Id. at 1a.

Claimant sought the payment of total disability benefits from May 21, 2017 through
July 13, 2017.

Id. at 2a.

Employer denied the allegations set forth in the Claim
Petition.

Id. at 6a-7a.

             The WCJ found that Claimant sustained a work-related injury in the
nature of “‘an allergic reaction to his work uniform resulting in development of
cellulitis and methicillin-sensitive Staphyloccocus aureus (“MSSA”) [staph
infection] of the right axilla and chest wall, necessitating hospitalization and surgical
intervention followed by post-operative wound care.’” WCJ Decision, 02/14/2019,
Findings of Fact (F.F.) No. 14. Further, the WCJ found that “these conditions were
supported, inter alia, by the credible medical evidence of record, particularly the
initial treatment and hospital records, the diagnostic studies and [] Claimant’s
credible subjective complaints.”

Id. As a result,

the WCJ granted Claimant’s Claim
Petition. WCJ Decision, 02/14/2019, at 11.
             Employer subsequently appealed to the Board. In its April 21, 2020
opinion, the Board reversed the decision of the WCJ, dismissing the Claim Petition.
The Board determined that while the WCJ found Claimant’s medical evidence more
credible than Employer’s, the WCJ erred in finding that Claimant’s allergic reaction




                                           3
and development of cellulitis and a staph infection was obviously work-related. Bd.
Op., 04/21/2020, at 6-7. Claimant now petitions this Court for review.4
                                      II.     Discussion
              In a WC claim petition proceeding, a claimant has the burden of
establishing the right to compensation and all of the elements necessary to support
an award, including the existence of an injury sustained in the course of, and as a
result of, employment. Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy), 

634
A.2d 592

(Pa. 1993). A claimant must establish a causal connection between the
disability and the work-related incident.

Id. The requirements to

successfully
demonstrate causation depend upon whether the injury is obviously work-related.
An obvious injury is one that immediately manifests itself while a claimant is in the
act of doing the kind of work which can cause such an injury. Calcara v. Workers’
Comp. Appeal Bd. (St. Joseph Hosp.), 

706 A.2d 1286

(Pa. Cmwlth. 1998).
              However, an injury that does not immediately manifest itself while the
employee is performing the job is not “obvious,” and the claimant must establish a
causal connection by unequivocal medical evidence in order to recover WC benefits.
Albert Einstein Healthcare v. Workers’ Comp. Appeal Bd. (Stanford), 

955 A.2d 478

(Pa. Cmwlth. 2008); Jeannette Dist. Mem’l Hosp. v. Workers’ Comp. Appeal Bd.
(Mesich), 

668 A.2d 249

(Pa. Cmwlth. 1995). Medical evidence will be considered
unequivocal “if the medical expert, after providing a foundation, testifies that in his
medical opinion” the facts show causation. Haddon Craftsmen, Inc. v. Workers’
Comp. Appeal Bd. (Krouchick), 

809 A.2d 434

(Pa. Cmwlth. 2002).                       “If the


       4
         Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 

38 A.3d 1037

(Pa. Cmwlth. 2011).


                                              4
claimant’s expert has based his opinion regarding causation on a set of assumptions
not substantiated by the record, such expert will be characterized as having proffered
a legally incompetent opinion.” Se. Pa. Transp. Auth. v. Workers’ Comp. Appeal Bd.
(Herder), 

765 A.2d 414

(Pa. Cmwlth. 2000); see Zoltak v. Keystone–Harmony
Dairy, 

408 A.2d 198

(Pa. Cmwlth. 1979) (evidence that is less than positive or based
on conjecture falls short of the plateau of legally competent evidence).
             Claimant asserts that his injury is obviously work related, and therefore,
he does not need to prove a causal relationship between his injury and his
employment with unequivocal medical testimony. In support of this assertion,
Claimant cites Giant Eagle, Inc. v. Workers’ Compensation Appeal Board (Thomas),

725 A.2d 873

(Pa. Cmwlth. 1997). In Giant Eagle, Inc., this Court upheld a WCJ’s
finding that a claimant’s allergic reaction while working for the employer was work-
related absent unequivocal medical evidence establishing that her skin rash was not
related to her employment.

Id. As the record

established that the claimant had never
experienced a similar episode prior to working for her employer or after leaving her
employer, this Court held that the injury was obviously work related.

Id.
Claimant argues that

his testimony alone demonstrates that his injury
was obviously work related. Claimant’s Br. at 12. Claimant testified that his allergic
reaction did not occur prior to wearing his new work uniform in October 2016, and
that he has not experienced a similar medical problem since he stopped wearing the
uniform in July 2017. Id.; R.R. at 54a-55a. Claimant asserts that while these
circumstances demonstrate an obvious work-related injury, he also provided
unequivocal medical evidence. Claimant notes that he produced multiple sources of
evidence beyond his own testimony, including medical evidence, a January 2018
uniform textile report from the National Institute for Occupational Safety and Health



                                          5
(NIOSH),5 and evidence of Employer’s conduct, i.e., setting up a call center to assist
employees with skin problems.6 Claimant’s Br. at 12; R.R. at 148a-312a.
               Employer asserts that the Board correctly reversed the WCJ’s decision
because Claimant’s injury was not obvious, and therefore, he was required to prove
his case with unequivocal medical evidence. Employer further argues that Claimant
failed to meet his burden of proving work-related causation for his injury with the
support of unequivocal medical evidence. Specifically, Employer contends that
Claimant failed to present any evidence that causally linked the wearing of a work
uniform to a staph infection that presented eight months later. Employer’s Br. at 18.

       5
          In a letter dated January 10, 2018, the NIOSH of the United States Department of Health
and Human Services provided a chemical analysis of Employer’s Twin Hill uniform, the same
type as the first “new” uniform that Claimant was issued around September/October 2016. The
NIOSH directed its letter to Mr. James T. Johnson, Managing Director of Environmental Legal
Issues for Employer, “in response to an employee request to the [NIOSH] at the Centers for
Disease Control and Prevention (CDC) for a health hazard evaluation (HHE) regarding symptoms
attributed to uniforms introduced from May to September 2016 [by Employer].” R.R. at 312a. As
a result of its analysis, the NIOSH recommended that Employer “[c]ontinue to offer the multiple
choices of uniforms to [its] employees,” including the alternate Aramark uniform provided to
Claimant in May 2017.
        Further, the letter explained that “[e]mployees with persistent symptoms should be
individually evaluated by an occupational medicine physician or a medical provider specializing
in workplace illnesses.”

Id. at 316a.

While the NIOSH letter provides context to this Court, it was
not intended to serve as a professional medical opinion regarding Claimant’s specific condition or
injury. Therefore, in evaluating whether Claimant met his burden of proof in establishing work-
related causation for his injury, the NIOSH letter cannot be considered unequivocal medical
evidence for the purposes of the Act.

       6
         The NIOSH letter, supra note 3, makes reference to an Employer-established “call center
to handle concerns about the uniform.” Certified Record (C.R.) at 19, C-5; R.R. at 312a. While
the details of the “call center” are not described elsewhere within the Certified Record, Claimant
presents the existence of a call center as evidence of Employer’s conduct. However, Employer’s
conduct is not at issue in this case. It is the Claimant’s burden to either demonstrate that his injury
is obviously work related or to produce unequivocal medical evidence to show causation between
his injury and his work for Employer. As the mere existence of a call center does not contribute
to the Claimant meeting his burden in either scenario, we do not consider it to be dispositive in the
present matter.


                                                  6
                          A. Obviousness of Work Injury
             A work injury is obvious where the nexus between the injury and the
associated work is so clear that an untrained layperson would have no problem
concluding that the claimant’s symptoms were related to his work. Calcara. As a
result, a person without medical or specialized knowledge can see the connection.


Id. When a work

injury is obvious, the claimant’s testimony is sufficient to connect
the injury to his employment and medical testimony is not required.

Id.
In the present

case, as noted by the Board in its opinion, a layperson
lacks the knowledge to immediately determine the connection between the uniform
provided by Employer and Claimant’s staph infection. Further, in attempting to
make this connection, an untrained individual must be able to observe the immediate
manifestation of the symptoms of the alleged work injury. While Claimant attempts
to demonstrate an immediacy in the onset of his symptoms in relation to wearing the
new uniform, the timeline for the emergence of his symptoms is not clear.
             Per the Certified Record, Claimant testified that he first noticed
symptoms “shortly after” wearing the uniform in September and that he sought
medical treatment for “rash[-]related issues” in November 2016 when the rash
worsened. See C.R. at 14; see also R.R. at 97a-98a, 100a. Subsequently, in a hearing
before the WCJ, Claimant testified that he did not receive his uniform until an
unknown date in October, and while he noticed something on his neck and head
around that time, he never sought medical treatment for these symptoms. R.R. at
53a-55a. The WCJ never reconciled these discrepancies in testimony. However,
this variation in details complicates the ability of Claimant himself to demonstrate
the immediate onset of the injury as a result of the work uniform.




                                         7
               Employer argues that even if we were to accept Claimant’s testimony,
albeit contradictory, regarding the immediate adverse reaction to his uniform and the
resulting rash, there is a difference between a non-disabling rash and an infection
eight months later. This Court previously held in Stenger v. Workers’ Compensation
Appeal Board (Gateway Health, Inc.) (Pa. Cmwlth., No. 676 C.D. 2013, filed
November 15, 2013),7 that there was no obvious connection between a claimant’s
staph infection and an injection that claimant received for her compensable
shoulder/upper back strain and that unequivocal evidence was required to
demonstrate causation. Further, even where the work-related nature of an initial
injury is obvious, its relation to ongoing disability may not be; in that case, “there is
a need for more than lay evidence, i.e., for medical evidence.” Cromie v. Workmen’s
Comp. Appeal Bd. (Anchor Hocking Corp.), 

600 A.2d 677

, 679 (Pa. Cmwlth. 1991).
               Therefore, as the causal connection between Claimant wearing his work
uniform and his resulting staph infection is not obvious, Claimant is required to
present unequivocal medical evidence to support his Claim Petition. The Board did
not err in concluding that Claimant’s work injury was not obvious. We will now
consider Claimant’s medical evidence.
                                       B. Medical Evidence
               The WCJ found that Claimant’s medical evidence was more credible
than Employer’s medical evidence. WCJ Op., F.F. No. 11. The WCJ is free to
accept or reject, in whole or in part, the testimony of any witness, including medical
witnesses. Greenwich Collieries v. Workmen’s Comp. Appeal Bd. (Buck), 

664 A.2d
703

, 706 (Pa. Cmwlth. 1995) (citation omitted). Determinations of credibility and
the weight to be afforded evidence are the prerogative of the WCJ, not the Board.

       7
         This case is cited for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).


                                                  8
Vols v. Workmen’s Comp. Appeal Bd. (Alperin, Inc.), 

637 A.2d 711

(Pa. Cmwlth.
1994). However, the Board reversed the WCJ’s decision, stating that “[w]hile
Claimant’s medical experts did treat [him] for a rash, cellulitis and a staph infection,
none of [the] experts unequivocally opined that his condition was related to
[Employer’s] work uniform.” Bd. Op., 04/21/2020, at 8.
             Claimant presented medical evidence from his family doctors, Dr.
Matthew Fellows, M.D. and Dr. Mark Watkins, D.O., Dr. David LaRosa, M.D. of
the Asthma Center of Philadelphia, and his treating physicians at Penn Hospital,
including Dr. Jason J. Bofinger, M.D. As described previously, the WCJ found
Claimant’s medical evidence to be more credible than that provided by Employer.
See WCJ Op., F.F. No. 11. In its opinion, the Board deferred to the WCJ’s credibility
determinations, but reversed the WCJ on the basis that Claimant’s medical evidence
did not provide unequivocal medical evidence to demonstrate causation between his
employment with Employer and his injury.
             Employer asserts that both Claimant and the WCJ misrepresented the
contents of Claimant’s medical evidence in regard to causation. For example, Dr.
Bofinger, who treated Claimant for his staph infection during his stay at Penn
Hospital, questioned whether Claimant’s rash could be attributed to his work
uniform. R.R. at 153a-55a. However, Dr. Bofinger did not relate Claimant’s staph
infection to the work uniform.       See

id. Additional notes from

other treating
physicians at Penn Hospital indicate that Claimant’s condition was of an “unclear
etiology.” R.R. at 180a. A questionable opinion on causation is not sufficient to
establish causation. See Hous. Auth. of the City of Pittsburgh v. Workmen’s Comp.
Appeal Bd. (Sheffield), 

646 A.2d 686

(Pa. Cmwlth. 1994); see also Berks Cnty.




                                           9
Intermediate Unit v. Workmen’s Comp. Appeal Bd. (Rucker), 

631 A.2d 801

(Pa.
Cmwlth. 1993).
               Further, in the medical records detailing Claimant’s medical care prior
to his hospitalization, Dr. LaRosa wrote that Claimant’s symptoms, “are not
consistent with a contact hypersensitivity or allergic inflammatory reaction. . . . I do
not believe these are immediate hypersensitivity reactions.” R.R. at 308a. While
Dr. LaRosa did treat Claimant on April 17, 2017, for a “furuncle[8] underneath his
left arm,” Dr. LaRosa did not conclude that this skin condition was the result of
Claimant’s work uniform.

Id. Additionally, Claimant’s staph

infection, the ultimate
injury at issue in the instant case, presented under Claimant’s right arm, while Dr.
LaRosa treated Claimant for an issue under his left arm.
               Finally, Claimant asserts that he was treated by his primary care
physicians, Dr. Watkins and Dr. Fellows, for skin conditions that were caused by his
work uniform and related to his subsequent staph infection. However, per the
Certified Record, Claimant saw Dr. Fellows on September 30, 2016,9 for a “B12
deficiency.” See C.R. at 16, C-2; see also R.R. at 297a. Nothing from the notes of
this visit indicates a complaint related to Claimant’s skin. See

id. On March 29,

2017, Claimant saw Dr. Watkins for a “boil in [his] right axilla.” C.R. at 16, C-2;
R.R. at 300a. Dr. Watkins recorded that Claimant reported using the “same soap”
and that he “stopped using deodorant [two] weeks ago but [the boil] seems to have


       8
         The Merriam-Webster Medical Dictionary defines a “furuncle” as a “boil.” “Furuncle.”
Merriam-Webster.com          Dictionary,         Merriam-Webster,     https://www.merriam-
webster.com/dictionary/furuncle (last visited Mar. 22, 2021).

       9
         We note that this date is, by Claimant’s account, prior to his receipt of his new Twin Hill
uniform, which Claimant estimated to be around October 2016. R.R. at 54a-55a. The discrepancy
in timeline surrounding Claimant’s receipt of his first new uniform persists throughout this case.


                                                10
worsened.” C.R. at 16. C-2; R.R. at 302a. The report provides no further indication
of causation, nor does it make any mention of Claimant’s work uniform.
             The Board correctly determined that none of Claimant’s medical
evidence is unequivocal evidence causally relating Claimant’s skin condition and his
resulting staph infection to the wearing of his work uniform. While Claimant’s
medical experts were credible, their medical evidence did not establish the causation
necessary to connect Claimant’s injury with his work for Employer. Therefore, the
Board did not commit an error of law by reversing the WCJ’s decision and order.
                                  III.   Conclusion
             For the foregoing reasons, we affirm the Order of the Board.




                                              ______________________________
                                              J. ANDREW CROMPTON, Judge


Judge Fizzano Cannon did not participate in the decision of this case.




                                         11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



James Chidiac,                        :
                       Petitioner     :
                                      :
            v.                        :   No. 406 C.D. 2020
                                      :
Workers’ Compensation Appeal          :
Board (US Airways, Inc.),             :
                        Respondent    :




                                    ORDER

           AND NOW, this 23rd day of March 2021, we AFFIRM the April 21,
2020 Order of the Workers’ Compensation Appeal Board.




                                          ______________________________
                                          J. ANDREW CROMPTON, Judge

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