J.H. v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent from the majority’s opinion in this matter.

At the outset, I must register my dismay that the outcome of this case must turn on the arcane notion of “meretricio'us relationship.” Webster’s Third New International Dictionary 1413 (1993) (emphasis added) defines the term meretricious as “of or relating to a prostitute; having a harlot’s traits.” The term carries extremely pejorative connotations, and its usage comes from another time in history. Both the dictionary definition and the context in which the term is used in section 307(7) of the Workers’ Compensation Act (Act),1 suggest that a couple’s decision to *193live together and have a sexual relationship out of wedlock is akin to prostitution. This is a cruel and unfair suggestion; moreover, it does not reflect the reality of modern human relationships. I look forward to the day that our General Assembly updates this portion of the Act.

To make matters worse, the majority chooses to define “meretricious relationship” as “two individuals living together in a carnal way without benefit of marriage.”2 (Majority op. at 190, emphasis added.) The word “carnal” is defined in a number of ways, including “marked by sexuality that is often frank, crude and unrelieved by higher emotions,” and “relating to or given to crude bodily pleasures.”3 Webster’s Third New International Dictionary 340 (1993) (emphasis added). J.H. and Stephen G. have been together for years. They have a child together. They own property together. They have chosen not to marry, but it is obvious that they have built a life together for themselves, and it is reasonable to assume that these two people love each other. They should be treated with a commensurate degree of respect. It saddens me that, in the course of dissecting this relationship between J.H. and Stephen G., the majority would in any way suggest that this relationship should be labeled “carnal” without any consideration of the other aspects of this enduring relationship.

In short, and with my apologies to J.H. and Stephen G., it is only because of the prescribed legislative terminology that I continue to use the terms “meretricious” and “carnal” in this dissenting opinion.

Next, I disagree with the majority that Oley Township (Employer) met its burden of proof in this matter. As the majority correctly notes, Employer had the burden of proving that J.H. was “living in meretricious relationship” as of the date Employer filed its termination petition, which, in this case, was December 23, 1998. The majority then proceeds to detail all of Employer’s evidence, concluding that such evidence, specifically, the testimony of J.H.’s gynecologist regarding J.H.’s use of contraception, constituted substantial evidence to support the WCJ’s finding that J.H. was, indeed, “living in meretricious relationship” at the relevant time. However, this conclusion is based on the premise that the deposition testimony of J.H.’s gynecologist was properly admitted before the WCJ. I disagree that admission of such evidence was proper.

Employer presented the deposition testimony of J.H.’s gynecologist, Jeffrey B. Frank, M.D. The WCJ admitted this testimony over Claimant’s objections that, among other things, the deposition violated the patient-doctor privilege.4 At this de*194position, Employer’s counsel elicited a detailed recounting of J.H.’s entire gynecological and obstetrical history from 1983 to 1999, an action which I consider repugnant and unnecessarily invasive. Employer’s counsel questioned Dr. Frank about every time J.H. visited him, every gynecological problem J.H. experienced over that time period, every pap smear Dr. Frank performed on her, and every type of birth control Dr. Frank prescribed for her. I cannot overstate the inappropriate nature of eliciting and relying on this testimony.

In this Commonwealth, the physician-patient privilege is embodied in section 5929 of the Judicial Code, 42 Pa.C.S. § 5929, which states that:

No physician shall be allowed, in any civil matter, to disclose any information which he [or she] acquired in attending the patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries.

A plain reading of this general statutory prohibition against a physician’s disclosure of confidential medical information without the patient’s consent clearly establishes a single exception: instances where the patient has brought a civil matter for damages on account of personal injuries. An injured worker seeking workers’ compensation benefits undoubtedly fits into this exception. Doe v. Workmen’s Compensation Appeal Board (USAir, Inc.), 653 A.2d 715 (Pa.Cmwlth.), appeal denied, 541 Pa. 644, 663 A.2d 695 (1995). However, the situation here differs from the customary workers’ compensation claim, and, thus, this exception does not apply.

J.H. is not the patient who suffered personal injuries. The patient who suffered personal injuries was J.H.’s late husband, Dallas H. There is no question that, had Dallas H. brought an action for workers’ compensation benefits based on his June 21, 1983, injuries, the physician-patient privilege would not bar Dallas H.’s physician from providing any information acquired in the course of treating Dallas H. which might tend to “blacken the character” of Dallas H. without the prior consent of Dallas H. Unfortunately, Dallas H. suffered more than mere “personal injuries” on that fateful day; he died as a result of those injuries. J.H. became the derivative “claimant” in this matter only because her husband was killed instead of injured. It is a leap of logic to say that, because J.H. became the claimant by virtue of her husband’s death, J.H. ’s medical information should now be available to Employer in order to support a petition to terminate benefits that were awarded as a result of personal injuries suffered by an entirely different person.

I cannot believe that the General Assembly intended such an absurd and unjustified result. Suppose for a moment that Dallas H. had been killed in a non-work-related accident. If J.H. were to bring a civil action in a court of common pleas for wrongful death and loss of con*195sortium,5 there is little doubt that the defendant would be entitled to obtain medical information about Dallas H.’s injuries and death in order to defend against the action. Would defendant also be entitled to unfettered access to J.H.’s medical information merely because she is the one bringing the action? The majority’s interpretation of section 5929 would suggest so. However, the limited exception to the physician-patient privilege, i.e., civil actions brought as a result of personal injury, surely was intended to apply only to the medical information of the person who was injured and brought suit as a result of that injury. That is not this case.6

An employer seeking to terminate benefits under section 307(7) of the Act, 77 P.S. § 562, on the basis of a “meretricious relationship” has the burden of proving that the claimant was “living in meretricious relationship” as of the date the employer filed its termination petition. Todd v. Workmen’s Compensation Appeal Board (NCR Corp. and National Union/Crawford & Co.), 547 Pa. 687, 692 A.2d 1086 (1997). The majority notes that a “meretricious relationship” occurs whenever two unmarried persons are living together in a “sexual” and, thus, “carnal” way. If this is the case, Employer here had to show that, Claimant was (1) living with Stephen G. (2) in a “carnal” way (3) without being married to him (4) as of December 23, 1998. When questioned by Employer, Claimant testified that she lived with Stephen G. and that Stephen G. was Dylan’s father. This testimony shows that Claimant and Stephen G. must have had a sexual relationship approximately nine months before Dylan was born on September 28, 1989. However, this testimony did not establish that Claimant and Stephen G. had a sexual relationship as of December 23,1998, more than ten years later. The fact that they had a child together in 1989 does not necessarily mean they still have a sexual relationship. Nor does the fact that they continue to live together. See Campbell by Campbell v. Workmen’s Compensation Appeal Board (Hards Construction Company), 695 A.2d 976 (Pa.Cmwlth.1997) (holding that claimant’s relationship with her live-in partner could no longer be considered “meretricious” where they were no longer able to engage in sexual activity because of health problems). Here, Employer could have but did not question J.H. or any other witness about whether her relationship with Stephen G. continued to be of a “carnal” or “sexual” nature as of December 23, 1998. The only testimony Employer presented to this effect was Dr. Frank’s testimony that he had prescribed birth control pills for Claimant for the purpose of contraception over this time period and that he understood Claimant’s sexual partner to be Stephen G. Without Dr. Frank’s testimony, which I believe was improperly admitted, the record is devoid of any evidence whatsoever to support a finding that the relationship between J.H. and Stephen G. was of a “carnal” nature as of December 23,1998.

In summary, the WCJ erred in admitting Dr. Frank’s testimony. Without Dr. Frank’s testimony, Employer did not meet *196its burden of proving that J.H. was “living in meretricious relationship” as of December 23, 1998. Therefore, the WCJ’s finding to that effect is unsupported by substantial evidence. For this reason, I would reverse.7

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 562. This section provides in pertinent part that:

if, upon investigation and hearing, it shall be ascertained that the widow or widower is living with a man or woman, as the case may be, in meretricious relationship and not married, or the widow living a life of prostitution, the board may order the termination of compensation payable to such widow or widower....

. The majority defends the definition by pointing out that Pennsylvania's appellate courts have used this definition for many years. The majority even cites a superior court case from 1940. (Majority op. at 190 n. 11.) This is precisely my point. It is no longer 1940, and the rule of law governing these situations should be updated.

. The majority states that I have chosen the most extreme of dictionary definitions for the word "carnal.” The majority offers two alternative definitions from Webster's II New College Dictionary. (Majority op. at 190 n. 12.) Nevertheless, the definitions offered above from Webster's Third New International Dictionary reveal the connotation of the word "carnal.” Moreover, I note that the only other reported Pennsylvania appellate court opinion that relies upon Webster’s II New College Dictionary for the meaning of words is one also authored by Judge Leavitt. See C.F. v. Department of Public Welfare, 804 A.2d 755 (Pa.Cmwlth.2002).

.The majority states that J.H. waived the physician-patient privilege issue because she (1) did not raise the issue in her appeal to the WCAB, (2) did not raise the issue in her petition for review to this court, and (3) did *194not develop the issue in the argument portion of her brief. (Majority op. at 188 n. 3.) I disagree. In her appeal to the WCAB, J.H. argues that there is not "substantial evidence" to support the WCJ’s finding of a meretricious relationship, and testimony protected by the physician-patient privilege does not constitute “substantial evidence” to support a finding. Moreover, I note that J.H. specifically raises the physician-patient privilege issue in paragraph one of the petition for review and that J.H. develops the physician-patient privilege issue on page twelve of her brief.

. Cf. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa.Super.2000).

. The majority states that there is "no reason” why the physician-patient privilege should be limited to the injured worker’s medical records. (Majority op. at 190 n. 13.) The reason is the plain language of the statute governing the physician-patient privilege. The only exception to the privilege is where the patient brings a civil matter for damages on account of "personal injuries.” 42 Pa.C.S. § 5929. This case does not involve a "personal injuiy” to J.H.'s reproductive system, so that the exception to the privilege would apply.

. The majority suggests that the entire basis for this dissent is my belief that the statutory concept of a meretricious relationship does not reflect the reality of modem human relationships. The majority then expláins the need to uphold our statutes and binding precedent. (Majority op. at 192 n. 17.) However, as indicated above, the basis for my dissent is the plain language of the statute governing the physician-patient privilege. As to whether the privilege applies in this case, there is no precedent on the matter.