PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
3/29/2022 – 4/15/2022

ATTORNEY FEES

Speedwell Construction, Inc., and Erie Insurance v. WCAB (Gerald Klinger)

Decided: 03/30/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

Where it is alleged that there was a genuine dispute surrounding claimant’s alleged injuries and that the WCJ’s award encompassed attorney’s fees incurred during prior litigation in which Employer, not Claimant, prevailed, did the Board err in affirming the award of unreasonable contest attorney’s fees?

Background:

On April 18, 2018, during the course of his employment, Claimant suffered a work-related injury to his back while removing the side panels from the bed of a flatbed truck. Employer initially recognized the injury through a Notice of Temporary Compensation Payable (NTCP), which described the injury as an upper back strain. Employer then Issued three Amended NTCPs.  Employer subsequently Issued a Notice Stopping Temporary Compensation (Notice Stopping) and Notice of Workers’ Compensation Denial (Denial), asserting that Claimant suffered no injury.  In support of Claimant’s request for unreasonable contest attorney’s fees, Counsel filed the Application setting forth Counsel’s fees beginning.  The WCJ advised Employer of the Application and that it had 10 days to object thereto. In its response, Employer did not object to the submission of the Application but maintained that it believed that no unreasonable contest attorney’s fees should be awarded.  The Board discerned no error in the WCJ’s finding that Employer’s contest was unreasonable until March 28, 2019. The Board found it noteworthy that Claimant credibly testified that Employer denied his claim because he was having multiple scans and that Employer waited until almost a year after the injury to request the IME.   The Employer did not object to the inclusion of any particular amounts or fees listed in the Application within 15 days after service of the application.” 34 Pa. Code § 131.55(d).

Holding:

Employer lacked any medical evidence to support its denial of Claimant’s benefits at the time it contested the claim, and the Employer did not object to Claimant’s counsel’s inclusion of certain fees in Counsel’s Quantum Meruit Application in the time period required by the Board’s Regulations.  Therefore, the affirmance of the award of counsel fees was proper.

Affirmed.

 EMPLOYER-EMPLOYEE RELATIONSHIP – COVERAGE

Penn National Security Insurance Company v. WCAB (Darrel Henline)

Decided: 04/11/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether the WCJ and the Board erred in determining that Claimant was Lingenfelter’s employee at the time of injury and whether the WCJ and the Board erred in determining that Penn National provided coverage for the work Claimant performed at the time of injury where the policy was improperly coded?

Background:

Claimant filed a claim petition against Lingenfelter and Penn National alleging that he sustained an electric shock injury on August 11, 2016, while working as a laborer for Lingenfelter. Claimant filed a second claim petition against Tree Monkey and its workers’ compensation carrier.  The Underwriting Manager testified that Penn National provided workers’ compensation to Lingenfelter but not to Tree Monkey, because of the “high hazard nature” of Tree Monkey’s business, “working at heights and climbing through trees.” Underwriting Manager confirmed that Penn National’s information regarding Lingenfelter employees’ job duties came from Broker, acting as Penn National’s agent.  The insurance application submitted to Penn National by Lingenfelter contained no material misrepresentations of fact, such that rescission of the policy is in order. The error, if any, was entirely attributable to Penn National. Penn National’s alleged coding error does not provide a basis for it to deny coverage to Lingenfelter for Claimant’s injury, when Lingenfelter’s application contained no material misrepresentations.

Holding:

There was no error in the WCJ’s finding that Claimant was employed by Lingenfelter, and not Tree Monkey, on the date of injury. The existence of an employer-employee relationship is a question of law based upon findings of fact. Lingenfelter had the right to select Claimant, to remove Claimant, to direct “the manner” of Claimant’s performance, and Lingenfelter had the potential power to direct Claimant’s performance.  Claimant’s payroll records corroborated Claimant’s and Owner’s credited testimony and the Owner and Claimant testified that Lingenfelter, and not Tree Monkey, had the right to control, and did control, Claimant’s work performance, which, is the overriding factor.  Further, the WCJ did not err in finding and concluding that Penn National provided coverage for the work Claimant performed at the time of injury.

Affirmed.

EXTRATERRITORIAL JURISDICTION

Hashmatullah Waziry v. WCAB (Alliance Express, Llc And Uninsured Employers’ Guarantee Fund)

Decided: 04/12/2022   – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

Whether the claimant’s out of state work injury qualified for Pennsylvania’s extraterritorial jurisdiction under 77 P.S. § 411.2(a), where it was alleged that at the time of the injury his employment was principally localized in Pennsylvania?

Background:

Employer, a shipping company, operates four trucks and employs four truck drivers. Employer’s office and truck yard are in Philadelphia, Pennsylvania. During this time, Employer and Claimant drove from Texas to New York, from New York back to Texas, and from Texas to Philadelphia. During his nearly four months of employment with Employer, Claimant received all driving assignments, with delivery deadlines, from Employer via phone calls or text messages that Employer sent from its office in Philadelphia. Employer provided Claimant with the truck, chains, and tarps and paid for all gas and tolls. Employer required Claimant to submit driving logbooks to Employer, which Employer maintained at its Philadelphia office. Claimant brought the truck to Philadelphia for maintenance, and he also picked up his paychecks in Philadelphia.  The driving logs showed that the Claimant regularly returned to Employer’s Pennsylvania location after completing his driving assignments. The evidence presented in this matter showed that Employer’s Pennsylvania location was Claimant’s home base. Thus, employment was determined to be principally localized in Pennsylvania.

 Holding:

 The Board erred in making independent factual findings rather than analyzing whether the WCJ’s factual findings were supported by substantial evidence. Substantial evidence exists to support the WCJ’s factual findings, and, in light of those findings, the WCJ did not commit an error of law.   In light of the WCJ’s factual findings, the WCJ’s legal conclusion that Claimant’s employment was principally localized in Pennsylvania pursuant to Section 305.2(a)(1) of the Act, 77 P.S. § 411.2(a)(1), was free of legal error.

Reversed

JUDICIAL DISCRETION & SUBSTANTIAL EVIDENCE

Christopher Burton v.  RSVB Couriers (WCAB)

Decided: 04/13/2022   – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether the Board improperly failed to exercise its appellate function, and the WCJ’s Decisions were not supported by substantial evidence?

Background:

On December 1, 2017 Claimant was involved in a motor vehicle accident in the course and scope of his employment as a delivery driver for Employer.  Employer Issued a Notice of Compensation Denial (NCD).  Thereafter Employer Issued a Medical-Only Notice of Compensation Payable (NCP) acknowledging Claimant’s work-related low back strain.   On July 12, 2018, Claimant was terminated from his employment for misfeasance. That same day, Claimant filed two Claim Petitions for compensation benefits in which he alleged, inter alia, that he sustained a work-related injury on July 11, 2018, while lifting a heavy package on his work truck. Claimant described the injury as a “lower back injury” in the nature of a strain or tear, trauma to the muscle.  On December 27, 2018, Employer filed a Termination Petition alleging full recovery as of December 3, 2018.   The WCJ concluded that Claimant did not sustain his burden of proving by competent and credible evidence that he sustained a disabling work-related injury on December 1, 2017, or that he sustained a work-related injury on July 18, 2018. The WCJ also concluded that Employer sustained its burden of proving that Claimant was fully recovered from his work-related injury as of December 3, 2018.

Holding:

The Board and the WCJ committed no errors.  The WCJ’s credibility determinations are supported by ample substantial record evidence. Moreover, the WCJ extensively and exhaustively outlined the reasons for her credibility determinations, and, as a result, these determinations are not subject to appellate review.

Affirmed.

JUDICIAL DISCRETION & SUBSTANTIAL EVIDENCE

 Christopher Smith v. WCAB (Advanced Drainage Systems)

 Decided: 04/14/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

Whether the WCJ’s finding, that the claimant did not sustain a work-related injury, was supported by substantial evidence?

Background:

In October 2017, Claimant filed a Claim Petition alleging that he sustained a work injury to his right shoulder in the nature of a supraspinatus tendon tear on July 1, 2017, a couple weeks after starting his job with Employer as a downstream technician. The WCJ denied the Claim Petition, determining that Claimant did not sustain a work-related injury. Further, the WCJ explained the reasons he found Employer’s IME Physician more credible than Claimant’s Medical Expert.

Holding:

The WCJ’s determination was supported by substantial evidence of record.  The WCJ made a series of findings that support his determination that Claimant did not sustain a work-related right shoulder injury in July 2017.   The WCJ may accept or reject the testimony of any witness, including a medical witness, in whole or in part. A WCJ’s acceptance of one medical expert’s opinion over that of another cannot serve as a basis for reversible error. A single medical expert’s testimony is a reasonable basis upon which a WCJ may base a finding of fact despite conflicting evidence.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

Reginald Adams v. WCAB (School District of Philadelphia)

Decided: 03/30/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the claimant underwent an Impairment Rating Evaluation (IRE) on 01/19/2012, but never challenged that determination until after his IRE was declared unconstitutional following the PA Supreme Court’s decision in Protz II, should the date of his reinstatement of benefits be the date of the IRE, or the date that claimant challenged the IRE via the filing of a Reinstatement Petition?

Background:

The claimant did not file his Reinstatement petition, contesting the IRE and seeking reinstatement, until after the Supreme Court decided Protz II. Further, a modification of Claimant’s disability status was not actively being litigated at the time Protz II was Issued and therefore the Court’s ruling in Dana Holding did not apply.

Holding:

Because Claimant did not challenge the validity of the 01/12/2012 IRE until after Protz II was decided, Whitfield and its progeny mandate that Claimant is not entitled to reinstatement of total disability benefits as of the IRE date. The Board correctly reinstated Claimant’s total disability status as of May 17, 2018, the date he filed his reinstatement petitions.

Affirmed.

Colleen Bundschuh v. WCAB (Gwynedd Veterinary Hospital, Inc.)

Decided: 04/11/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the Claimant’s total disability benefits were only reinstated as of June 4, 2019, was the Employer precluded from seeking a new IRE under Section 306(a.3) until it paid Claimant 104 weeks of total disability benefits, commencing on June 4, 2019?

Background:

Claimant suffered a lumbar strain on March 9, 2004, while in the course of her employment. On March 29, 2010, Employer filed a petition seeking to modify Claimant’s disability benefits from total to partial, based on the results of an October 13, 2009 IRE conducted under former Section 306(a.2) of the Act.  On June 4, 2019, Claimant filed a petition seeking reinstatement of her total disability benefits based on a “worsening of condition.” After hearing testimony, the WCJ reinstated Claimant’s total disability benefits, effective June 4, 2019.  Thereafter, Employer filed a petition to modify Claimant’s total disability benefits based on the results of a September 30, 2019 IRE conducted pursuant to Section 306(a.3) of the Act.  Employer also sought a suspension of Claimant’s disability benefits based on Employer’s right to a credit for previously paid weeks of partial disability benefits under Sections 3(1) and 3(2) of Act 111. The WCJ granted Employer’s suspension petition, as the September 30, 2019 IRE demonstrated Claimant’s WBI rating fell below the 35% threshold established in Section 306(a.3) of the Act, and Employer was entitled to a credit for Claimant’s receipt of partial disability benefits over a period exceeding 500 weeks.

Holding:

Statutes are to be given prospective effect, except where the statute includes clear language to the contrary.  The express language in Sections 3(1)-(2) of Act 111 provide that an employer “shall be given credit for weeks of total disability compensation paid prior to” Act 111’s effective date, and “shall be given credit for weeks of partial disability compensation paid prior to” that date. 77 P.S. § 511.3.  Because the claimant had already received 104 weeks of total disability benefits, the employer was entitled to immediately seek a new IRE under Section 306(a.3) of the Act. The Court rejected the Claimant’s purported loss of her “vested rights,” as a WCJ may, at any time, modify, reinstate, suspend, or terminate an award of benefits upon proof that a claimant’s disability has increased, decreased, recurred, or has temporarily or finally ceased.

 Affirmed.

 Joseph Jaskulski v. WCAB (Weis Markets Inc.)

 Decided: 04/13/2022   – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether Act 111 can be constitutionally applied to workers whose injuries occurred before October 24, 2018, Act 111’s effective date and whether Act 111 contains sufficiently specific language to make the law retroactive?

Background:

On June 23, 2017, Claimant sustained a compensable work-related injury.   On March 18, 2020, Employer filed the Modification Petition to modify Claimant’s WC benefits as of February 6, 2020, based upon an Impairment Rating Evaluation (IRE).  On November 2, 2020, the WCJ granted Employer’s Modification Petition and reduced Claimant’s WC benefits to partial disability status as of February 6, 2020.

Holding:

Act 111 can be constitutionally applied to workers whose injuries occurred before October 24, 2018, Act 111’s effective date.   The Court rejected a similar argument in Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018).   Further, Act 111 does contain sufficiently specific language to make the law retroactive.

Affirmed.

Shane J. Clapper v. WCAB (Commonwealth of Pennsylvania)

Decided: 04/13/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether Act 111 unconstitutionally deprives a claimant of property rights and violates his due process and equal protection rights under the Pennsylvania and United States Constitutions? Whether an IRE under Section 306(a.3) of the Act cannot be performed until regulations have been promulgated to effectuate the provisions of Act 111? Whether the enactment of Act 111 represents an unconstitutional delegation of legislative authority?

Background:

Claimant suffered a work injury to his lower back and right hip on April 24, 2012, while in the course of his employment as a corrections officer for the Commonwealth of Pennsylvania (Employer). Employer accepted liability for Claimant’s work injury through issuance of a notice of compensation payable (NCP).  Based on the results of a June 28, 2019 IRE Employer filed a petition to modify Claimant’s total disability benefits pursuant to Section 306(a.3) of the Act. Claimant disputed the results of the June 28, 2019 IRE and generally challenged the constitutionality of the IRE provisions in the Act. On June 29, 2020, the WCJ granted Employer’s petition and modified Claimant’s disability benefits from total to partial, effective June 28, 2019. Claimant appealed.

Holding:

The Court held that the claimant waived the right to appeal the first two Issues.  Therefore, the Court did not address them.  As for the final Issue, the court previously reviewed, and rejected, this argument in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 316 (Pa. Cmwlth. 2019), affirmed per curiam (Pa., No. 88 MAP 2019, filed August 18, 2020), holding that the General Assembly’s enactment of Act 111 did not violate article II, Section 1 of the Pennsylvania Constitution, as it merely adopted the existing set of standards set forth in the Sixth edition, second printing, of the AMA Guides.  As this Court has previously held that the enactment of Section 306(a.3) of the Act did not violate article II, Section 1 of the Pennsylvania Constitution, the Court affirmed the Board’s order.

Affirmed.

NOTICE

 McCarl’s Inc. v. WCAB (Christopher J. Manzo)

 Decided: 04/01/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether Claimant provided Employer with timely notice of the alleged work injury where Claimant admitted during testimony that he neither reported his shoulder symptoms to Employer nor reported any work-related shoulder injury throughout the course of his employment? Whether, even if Claimant notified Employer of the alleged work injury in December 2018, Claimant knew of the possible link between his right shoulder symptoms and his work duties in June 2018?

Background:

On March 7, 2019, Claimant filed a claim petition seeking total disability benefits for a March 9, 2018 work injury, which allegedly caused an aggravation of the preexisting degenerative arthritis in Claimant’s right shoulder, necessitating a total right shoulder replacement. Claimant indicated that he notified Employer of his work injury on December 4, 2018. Employer denied that Claimant suffered a work-related injury and asserted that Claimant failed to provide Employer notice of the alleged work injury within 120 days, as required by Section 311 of the Workers’ Compensation Act (Act).  Claimant did not relate his right shoulder symptoms to any specific incident or event; rather, he felt they were caused by “doing overhead stuff” at work. Claimant underwent arthroscopic procedures in 2003, 2004, and 2007 to treat a torn labrum in his right shoulder. Claimant resumed his full-duty job following each surgery. Claimant did not require treatment for any right shoulder symptoms after 2007, and throughout the eight-year period he worked exclusively for Employer, and he had no work restrictions in the use of his right shoulder. Claimant’s right shoulder pain returned in 2017. He described this onset of right shoulder pain as gradual and unrelated to any specific event or trauma.   The WCJ credited Claimant’s testimony regarding his symptoms and the difficulties he experienced because of his work activities, which were supported by the nature of Claimant’s employment and the testimony of his medical expert. Claimant’s considerable period of employment with Employer supported Claimant’s contention that his work duties exacerbated the condition of his right shoulder to the point where it required surgical intervention.

Holding:

Employer’s argument that Claimant provided no notice of the alleged work injury whatsoever had no merit.  The WCJ’s found that Claimant was unaware until December 2018 that his shoulder symptoms were work related and Claimant indisputably sent Employer a letter in December 2018 indicating that he intended to pursue a workers’ compensation claim petition.  Therefore, employer was “generally aware” in December 2018 that Claimant alleged the existence of a work-related injury.

Affirmed.

PENALTY

 Luzerne County v. WCAB (Louise Groner)

 Decided: 04/11/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the Carrier denied payment for certain medications, did the WCJ err in granting the review and penalty petitions where it was alleged that the subject medications do not treat Claimant’s work injury and where the Claimant received her prescriptions without interruption for Percocet, Oxycontin and Lidocaine patches?

Background:

The indemnity portion of her claim was resolved in a 2003 Compromise and Release Agreement (C&R Agreement), in which Employer acknowledged its continuing obligation to cover the medical expenses related to Claimant’s work injury.  On February 24, 2017, Employer’s third-party administrator sent a letter to Claimant stating that, going forward, only some medications will be approved and paid for, and not others that she was taking.  In response, Claimant filed a petition to review medical treatment, alleging that as of March 1, 2017, Employer stopped paying for reasonable and necessary medical expenses related to her work injury.  She also filed a penalty petition alleging that Employer’s refusal to pay her medical benefits violated the Workers’ Compensation Act.  Prior to receiving the February 2017 letter, she spoke by phone with the Insurance Administrator’s Vice President of Claims. He informed her that Employer would not pay for her pain medication because “it was too expensive.”  In February of 2017, the Vice President of Claims contacted Claimant and Claimant commented, “I don’t know why they bill you people those, you know, it’s not related to that.” He testified that Claimant stated that the only medications related to her work injury were Percocet, Oxycontin and Lidocaine patches, which Employer continues to cover.  Claimant testified that she contacted the Vice President of Claims after the telephone conversation, when she realized she had omitted other medications and also faxed him a complete list of her work-related medications later that day.

Holding:

An employer is responsible for medical payments until a WCJ terminates those benefits. Once liability is established, the claimant is not required to establish that ongoing medical treatment is causally related to the work injury because the injury for which the claimant is treating has already been established. Accordingly, it is the employer’s burden to prove that a medical expense is unreasonable, unnecessary or is not related to the accepted work injury.   The Employer’s argument that it was responsible only for the Percocet, Oxycontin and Lidocaine patches and not for the other medications prescribed to Claimant had no merit as the Employer did not prove that these other medications were unnecessary or not related to the accepted work injury.  Further, the Court disagreed that the record established that Claimant received coverage for Percocet, Oxycontin and the Lidocaine patches, without interruption, as the WCJ found otherwise and the WCJ is the ultimate factfinder and has the exclusive province over questions of credibility and evidentiary weight.

Affirmed.

TIME LIMITATIONS

Donald Shirey v. WCAB (The Bon Ton Stores, Inc.)

Decided: 04/12/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the Claimant experienced no wage loss within three years of the date of his work injury, was it error for the WCJ to deny the Claim Petition and refuse to place Claimant’s benefits in a suspended status?

Background:

On December 29, 2016, Claimant’s left heel got caught while carrying boxes on an escalator in the course of his employment with Employer. This resulted in an injury described as sprain or tear, internal derangement, a trauma or wrenching of a joint, producing pain and disability depending upon degree of injury to ligaments. Employer Issued a medical-only Notice of Compensation Payable (NCP) accepting responsibility for reasonable and necessary medical care for Claimant’s injury.  WCJ denied the Claim Petition but determined that Employer would remain liable for reasonable and necessary medical treatment causally related to the work injury.  Claimant had no disability benefits to suspend.

Holding:

Claimant failed to meet his burden because he was unable to establish any period of disability, either through his own testimony or through unequivocal medical evidence. Accordingly, the Board did not err by affirming the WCJ’s denial of the Claim Petition.  Further, without a preexisting award of compensation, Claimant had no disability benefits to suspend.  There was no error.

Affirmed.

Luzerne County V. WCAB (Dean Allford)

Decided: 04/13/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether the Claimant’s Claim Petition is barred by the statute of limitations where the Claimant was lulled into a false sense of security that his claim had been accepted?

Background:

On August 6, 2018, Claimant filed a Claim Petition relative to a 2013 Injury asserting ongoing partial disability from February 13, 2013, onward. Claimant described the injury as a cervical sprain/strain, left shoulder impingement syndrome, pain in the left shoulder, and a sprain of the left rotator cuff capsule. Employer filed a timely Answer denying all material allegations and advancing several defenses including, inter alia, that Claimant’s claims were barred by the statute of limitations.   The WCJ ultimately found that Claimant sustained a work-related injury on February 13, 2013, in the form of bilateral knee contusions, a cervical sprain/strain, and right shoulder impingement syndrome, with a secondary bursitis, as well as an aggravation of his preexisting degenerative osteoarthritis and disc disease of the cervical spine with radicular symptomatology and that Claimant continues to require modified light-duty work as a result of the 2013 Injury.  The WCJ further found that Employer paid Claimant wages in lieu of compensation for any time missed from work related to the 2013 Injury. The WCJ concluded that, although Claimant’s Claim and Review Petitions were not timely filed, Employer’s payment of medical bills coupled with Employer’s payment of wages in lieu of compensation whenever Claimant missed time from work due to the 2013 Injury lulled Claimant into believing his claim had been accepted, thereby tolling the three[-]year statute of limitations  and was deceived into thinking his claim had been accepted when he was not provided a copy of the Notice of Denial that was allegedly Issued, and he was repeatedly misled into believing his claim had been accepted by the claims representative, Debbie Marinelli.

Holding:

The claimant met the burden to show, by clear and precise evidence, that Employer or Excalibur, by their actions or statements, had lulled him into a false sense of security regarding the filing of his claim.  There is no dispute that Claimant did not file his Claim Petition within three years of the 2013 Injury.  Where payments of compensation have been made in any case, said limitations shall not take effect until the expiration of three years from the time of the making of the most recent payment prior to date of filing such petition of indemnity benefits or wages in lieu thereof.  Further, a claimant may toll the statute of limitations by presenting clear and precise evidence that the employer or its insurance carrier by its actions lulled him into a false sense of security regarding the filing of his claim.   Claimant consistently testified over the course of two hearings that whenever he missed time from work due to 2013 Injury, he was given “comp time” in lieu of wage loss benefits, and he was never required to use vacation, sick, or personal time.   Claimant took immediate action upon discovering the deception. Thus, the WCJ and Board did not err in determining that Claimant’s claim was not time barred.

Affirmed.

UTILIZATION REVIEW

 Michael A. Mushow v. WCAB (Doyle and Roth Manufacturing)

 Decided: 04/12/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

Whether the Board erred in affirming the WCJ’s denial of Claimant’s UR Petition?

Background:

In June of 2019, Employer and its insurer filed a request for a UR determination regarding the treatment rendered to Claimant by Avner R. Griver, M.D., Claimant’s pain management provider, beginning June 7, 2019, and ongoing. Specifically, the request for a UR determination sought a review of the reasonableness and necessity of Claimant’s medical prescriptions for OxyContin 60 mg twice a day, and oxycodone 10 mg four times a day, prescribed by Dr. Griver.  On August 15, 2019, the Utilization Review Organization (URO) reviewer, Dr. Kaplan found the challenged treatment reasonable and necessary, in part. The WCJ found that Claimant’s OxyContin and oxycodone medications are reasonable and necessary, but only “at a continuing tapering dosage with a target total of 90 MED or less.

Holding:

The Court determined that the Claimant was merely seeking to overturn the WCJ’s credibility determinations and accept his preferred interpretation of the evidence in this case.  The Court declined to do so, as determinations of credibility and evidentiary weight, including that of the UR Report, are within the exclusive prerogative of the WCJ, as factfinder.

Affirmed.

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
3/28/2022 – 4/15/2022

 BURDEN OF PROOF – TRAUMATIC EVENT

Little v. Board of Trustees, Teachers’ Pension and Annuity Fund

Superior Court of New Jersey, Appellate Division

No. A-2976-19; 2022 WL 1026083

Decided: 4/06/2022

Background:

Appellant, Wesley Little, appeals from a February 13, 2020 final agency decision of the Board of Trustees (Board) of the Teachers’ Pension and Annuity Fund (TPAF), which adopted an Administrative Law Judge’s (ALJ) final decision. Little was a special education teacher, when, on October 17, 2012, he was assaulted by a student, who smacked, punched, and kicked Little. Little went to the emergency room, and eventually came under the care of a Dr. Villota, to whom Little self-reported concussions in college. Little was referred to a Dr. Gadson for his “noticeable depression.” Dr. Gadson diagnosed him with PTSD and moderate depression.

In February 2013, little applied for accidental disability retirement benefits. The Trenton Board of Education submitted a certification for disability retirement, stating that Little resigned on February 28, 2013. Little treated with a Dr. Tracy, Ph.D., who diagnosed him with PTSD and Dysthymia Disorder which were sever enough to preclude him from returning to his job as a teacher. Little was in a car accident on his way to see Dr. Gadson on August 13, 2012, where he suffered several injuries, though he was released from the hospital after 20 minutes because he insisted, he was fine. Little then received psychiatric treatment with Dr. Glass, MD.

On July 10, 2014, the Board denied Little’s application for accidental disability retirement benefits and stated there was no evidence of direct causation of a total and permanent disability. Little appealed, and the matter came before an ALJ. Dr. Glass testified on behalf of Little, and a Dr. Filippone testified on behalf of the Board. In the course of the case, Dr. Glass lost his medical license, and Dr. Tracy was permitted to testify for Little, but Dr. Glass’s testimony was never stricken from the record. On December 12, 2019, the ALJ issued a decision finding Little to be total and permanently disabled and granting him ordinary disability benefits. The ALJ concluded that Little cannot prove that the assault was the essential significant or substantial contributing cause of the disability. The TPAF adopted that decision, and the instant appeal followed.

Holding:

In Richardson v. Board of Trustees, Police, and Firemen’s Retirement System the court set forth a 5-pronged test, requiring a member seeking accidental disability benefits to prove, in relevant part that he is totally and permanently disabled “as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member.” Further case law established that what is required is a “traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.”

This court held that the sole legal issue before it was whether Little’s disability was a direct result of the October 2012 assault. The court held that the Board’s decision was arbitrary and capricious because it was “untethered” to the substantial and credible evidence of record. The court further held that the record supports only one conclusion: that the October 2012 assault was the “essential significant or substantial contributing cause” of Little’s disability. Citing the Petrucelli case, the court stated that “if claimant here cannot recover after a severe trauma, superimposed on a non-symptomatic [condition]…no claimant could ever recover accidental benefits in any circumstance where there exists a quiescent underlying condition which had caused no trouble and might never cause any trouble.” (211 N.J. Super. at 289).

Reversed.

PROCEDURAL REQUIREMENTS

Straub v. Board of Trustees, Police and Firemen’s Retirement System

Superior Court of New Jersey, Appellate Division

No. A-2308-19; 2022 WL 1086655

Decided: 4/12/2022

Background:

This court affirmed the agency decision of the Board of Trustees of the Police and Firemen’s Retirement System (Board) which held that Straub was not entitled to accidental disability retirement benefits, but instead ordinary disability retirement benefits. Two months after the court affirmed the decision, Straub wrote a letter to the Board seeking to appeal the decision and receive involuntary disability retirement benefits instead. The Board’s secretary informed Straub that he could not receive involuntary disability benefits because his former employer did not submit an involuntary disability retirement application on his behalf, and he did not appeal the agency decision within 45 days of the November 15, 2017 notice of decision.

Straub’s counsel wrote to the Board’s secretary demanding the Board take formal action and requesting that his former employer be allowed to apply for involuntary disability retirement benefits for Straub. Straub’s attorney then sent a “SECOND REQUEST” letter. The secretary of the Board replied and reiterated what she had told Straub. Straub then appealed the Board’s decision denying his request to reconsider its previous decision.

Holding:

The court found that there was no merit to Straub’s request that his benefits should be reclassified to involuntary disability retirement benefits. Statute and regulation govern who is eligible for involuntary disability retirement benefits. Applications for these benefits must include a resolution of the governing body certifying that the employee is disabled and unable to perform their regular or assigned duties.

The court held that the language of the controlling guidelines was unambiguous, and the only party that can apply for involuntary disability retirement benefits for Straub is his former employer through the passing of a resolution stating he is disabled and unable to perform his regular or assigned duties. Since no such resolution was passed, Straub had no standing to request the change in benefits. The court further found that Straub’s reconsideration request was procedurally deficient, as he should have appealed the agency decision of the Board within the 45-day time frame.

Affirmed.

BURDEN OF PROOF – TRAUMATIC EVENT

 L.P. v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-3280-19; 2022 WL 1164876

Decided: 4/20/2022

Background:

L.P. appeals from the March 18, 2020 decision of the Public Employees’ Retirement System (PERS) Board of Trustees, which adopted the decision of an Administrative Law Judge (ALJ) denying her application for accidental disability retirement (ADR) benefits.

L.P. was employed as a Rutgers University police officer. On June 9, 2008, L.P. responded to a call that a young boy had entered a pond on campus and disappeared. She entered the pond and commenced the search. She testified that she was not concerned for her safety during the search. L.P. never found the boy. About 20 minutes into her search, the New Brunswick Fire Department arrived and directed her to exit the pond. The NBFD eventually recovered the child’s body, which L.P. never saw since a sheet was used to cover the boat when they recovered the remains.

L.P. continued to work with no issues until three months later, when she reported changes in her behavior like trouble sleeping and eating, and nightmares. L.P. had been in treatment since 2003 for anxiety and depression. L.P. started feeling overwhelmed at work in 2011, which continued through 2012 and 2013, when she suffered a panic attack at work, causing her to go on sick leave for three months. She had a psychiatric evaluation in May 2013, and was found to be unfit for duty. She applied for ADR benefits on June 30, 2013, which was denied, leading to an appeal in front of an ALJ.

Two psychologists testified at her trial, with L.P’s expert stating she had PTSD as a direct result of the event in 2008. The State’s expert testified that he did not see evidence to support a PTSD diagnosis and L.P. did have prior diagnoses of major depressive disorder, generalized anxiety disorder, and alcohol and cannabis abuse. He opined that those diagnoses caused her to be unable to perform her job duties, not the 2008 event.

The ALJ found that the Board correctly denied her application for ADR benefits. The ALJ further stated that to qualify for ADR benefits for a “mental-mental” claim, the member must meet the Richardson criteria as well as the criteria in Patterson v. Board of Trustees, State Police Retirement System. The ALJ found the event did not meet the Patterson standard. The ALJ also found that the June 2008 event was not undesigned and unexpected. The Board adopted the ALJ’s decision, and this appeal followed.

Holding:

In Richardson v. Board of Trustees, Police, and Firemen’s Retirement System the court set forth a 5-prong test, requiring a member seeking accidental disability benefits to prove, in relevant part that he is totally and permanently disabled “as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member.” Further case law established that what is required is a “traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.”

In Patterson, the Court clarified that a person who develops a permanent mental disability from a work-related traumatic event may qualify for ADR benefits even if it did not involve “physical impact.” In addition to satisfying the Richardson factors, someone with a mental-mental claim must show that the disability resulted from ““direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person.” The Court cited numerous examples in case law of the types of events that met the “traumatic event threshold,” which they state demonstrate that to satisfy the Patterson standard, the situations involving the actual or threatened death or serious injury of another person requires the member to have had a sensory experience of the person harmed or in peril.

The Court held that the credible evidence supports the Board’s determination that L.P. did not experience a traumatic event that satisfies the Patterson threshold requirement, as L.P. testified that she did not see or hear the boy during the rescue attempt and did not see the body after the remains were located. Additionally, L.P. testified that she was not in distress during the search, supporting the Board’s determination that she was never at risk of serious harm.

Affirmed.

PROCEDURAL REQUIREMENTS

 Holloway v. Board of Trustees, Teachers’ Pension and Annuity Fund

Superior Court of New Jersey, Appellate Division

No. A-2930-20; 2022 WL 1406361

Decided: 5/04/2022

Background:

Marilyn Holloway appeals from a May 12, 2021 final agency decision by the Board of Trustees (Board) of the Teachers’ Pension and Annuity fund (TPAF), which denied her application for ordinary disability retirement benefits. The Board adopted the findings of fact of an Administrative Law Judge (ALJ), including that she was not totally and permanently disabled from her job duties.

Holloway worked as a teacher starting in 1995. In January 2006, she slipped, injuring both of her knees, which required surgery. She returned to work for the 2007-2008 school year, and worked for another 7 years, until the 2013-2014 school year, when she received a change in assignment. She then contended she was not able to do her job duties due to shortness of breath and an inability to stand for a significant amount of time.

On February 18, 2016, Holloway filed an application for accidental disability (AD) retirement benefits, alleging she was totally and permanently disabled. The Board denied this application, after which she requested an administrative hearing. Holloway then abandoned her application for AD retirement and requested ordinary retirement benefits. She also sought to include alleged non-orthopedic conditions in support of her disability claim but did not file a new application.

The ALJ found that Holloway was not permanently and totally disabled from performing her job. Holloway claimed the Board did not consider her non-orthopedic injuries, but the ALJ found they were never presented to the Board and declined to consider them. The Board adopted the ALJ’s decision denying her ordinary disability retirement benefits. Holloway appealed.

Holding:

Holloway contended that the Board should have considered her non-orthopedic disability. The Court found that her argument failed because 1) the regulation does not allow for consideration of conditions not explicitly pled in the application; and 2) she did not indicate non-orthopedic conditions in her application. The N.J.A.C. establishes the requirements for retirement disability applications. The Court stated that they generally defer to an agency’s interpretation of its own regulations. Therefore, the Court held it is obvious that the applicable regulation requires an applicant who asserts medical conditions other than what was alleged in the initial application to withdraw it and resubmit. Based on that conclusion, the Court held that Holloway needed to identify both the orthopedic and non-orthopedic conditions that caused her alleged disability in her initial application, which she failed to do.

Holloway alleged that her application gave notice of non-orthopedic issues when it stated, “I am unable to stand for any significant period of time because of severe injuries to both knees…I also cannot walk through hallways… and need to take pain medicine daily which clouds my thinking process[.]”. The Board viewed this application as alleging only orthopedic injuries. The Court concluded that Holloway failed to allege non-orthopedic conditions in her initial application, and the Board’s refusal to consider non-orthopedic conditions was reasonable.

The Court addressed the applicability of the substantial compliance doctrine, which “operates to prevent barring legitimate claims due to technical defects.” The Court found that there was no need to apply the doctrine as her application can be refiled with the inclusion of her non-orthopedic conditions. The Court further held that the Board’s notice of non-orthopedic conditions came after the initial application, and while filing a new application would be a procedural hurdle, Holloway provides no reason besides inconvenience why she did not comply with the regulation. Holloway could still submit a new application indicating her non-orthopedic conditions.

Finally, the Court found that the Board’s determination was adequately supported by the record and Holloway failed to meet her showing to challenge the determination.

Affirmed.