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 
2

psychological trauma, depression, and post-traumatic stress disorder when certain 

unnamed coworkers violated HIPAA1regulations 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). 
3

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). 
4

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
5

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 
6

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 
7

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).
8

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. 
9

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 
10

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 
11

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. 
12

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. 
13

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
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 :

O R D E R

AND NOW, this 21st day of November, 2016, the order of the 

Workers’ Compensation Appeal Board is AFFIRMED.

 

 P. KEVIN BROBSON, Judge