CASE SUMMARIES 

4/16/2022 – 5/15/2022

 PENNSYLVANIA WORKERS’ COMPENSATION

 IMPAIRMENT RATING EVALUATIONS

 Donna Cutter v. Commonwealth Of Pennsylvania (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided April 27, 2022

 Issue:

Can benefits under the WC Act be modified under an IRE, where the claimant has only been receiving benefits under Act 534 for her work injury?

Background:

Claimant sustained a work injury while in the course of her employment as a youth development aide at the South Mountain Secure Treatment Facility (Facility) operated by DHS (Employer), following an assault by a resident of the Facility. Employer accepted Claimant’s work injury through issuance of a notice of compensation payable (NCP), which acknowledged that Claimant sustained various injuries.  The NCP acknowledged that Claimant would receive Act 534 benefits in lieu of compensation under the WC Act.

Holding:

Act 534 benefits are similar to those provided under what is commonly known as the Heart and Lung Act (HLA), which provides full-salary benefits to police officers, firefighters, and other public safety employees injured on the job. Like Section 1(a) of Act 534, Section 1(a) of the HLA anticipates that an injured employee may seek benefits under both the HLA and the WC Act; however, the Commonwealth is entitled to recoup the amount of disability benefits a claimant receives under the WC Act. 53 P.S. § 637(a). Given the similarities in purpose and construction between the HLA and Act 534, our analysis of one statutory provision may be applied to the other.  When a self-insured employer begins paying benefits under the HLA pursuant to an NCP, two-thirds of the amount paid automatically represents the payment of workers’ compensation benefits under the WC Act.  A self-insured employer paying a claimant’s full salary under the HLA or Act 534 would “hardly reimburse itself for that portion of a claimant’s benefits that represents benefits under the [WC] Act.”   Employer is self-insured and therefore two-thirds of Claimant’s Act 534 benefits represents the payment of total disability benefits under the WC Act. Therefore, Claimant’s receipt of Act 534 benefits for a period exceeding 104 weeks satisfies the prerequisite necessary for Employer to seek an IRE under Section 306(a.3) of the WC Act.

Affirmed

Joseph C. Hazzouri V. Pennsylvania Turnpike Commission (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Filed April 28, 2022

 Issue:

Whether the retroactive application of Act 111’s IRE mechanism to injuries occurring before its effective date is unconstitutional?

Background:

Claimant sustained a work-related injury to his back.  Sometime later the Employer filed a Modification Petition based upon an IRE performed on April 22, 2019. By decision and order circulated on November 25, 2020, the WCJ granted Employer’s Modification Petition. The WCJ concluded that Employer had met its burden of proving that Claimant had an impairment rating of less than 35% based upon the IRE.   Claimant challenged the retroactive application of Act 111’s IRE provisions to Claimant’s work injury as unconstitutional

Holding:

Act 111 did not affect the claimant’s vested rights because it did not impose new legal burdens on a past transaction or occurrence or otherwise change the status of a claimant’s workers’ compensation benefits. Rather, it merely established a means for an employer to seek a modification of a claimant’s benefits going forward.   Act 111 did not automatically change claimant’s disability status or otherwise deprive him of vested rights under the Act. Rather, Act 111 simply provided a mechanism for Employer to pursue a change in Claimant’s disability status by requiring medical evidence that Claimant’s whole-body impairment was less than 35%. Because Claimant’s IRE occurred after the enactment of Act 111, it did not constitute a retroactive application of the law. Because Claimant already received 104 weeks of total disability benefits, Employer was permitted, under Section 306(a.3)(1), to seek a new IRE, a modification based on its results, and a credit for disability benefits paid.

Affirmed 

 Kelly Gooden v. School District Of Philadelphia (Workers’ Compensation Appeal Board)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 29, 2022

 Issue:

Whether it was an error of law to grant the Modification Petition when Section 306(a.3) of the Workers’ Compensation Act (Act) requires that IREs be performed pursuant to the “6th edition (second printing April 2009)” of the Guides and there was no evidence as to which 6th edition was utilized?

Background:

The WCJ and Board found Claimant’s benefits should be modified from temporary total disability to temporary partial disability based upon an impairment rating evaluation (IRE) performed using the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides).

Holding:

Because the plain language of the Act specifies the “6th edition (second printing April 2009)” of the Guides be utilized, the court was constrained to vacate the Board’s Order and remand with instructions for the Board to further remand to the WCJ for evidence as to which version of the 6th edition of the Guides was used by the physician.  The only evidence of record is the IRE physician’s testimony and report that shows the 6th edition was used. Because there is no evidence that the “second printing April 2009” version was used by Dr. Walsh, the court vacated the Board’s Order and remand this matter for further evidence as to which version of the 6th edition of the Guides was utilized.

Remanded

 John LYNCH v. COMMONWEALTH of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Reported opinion
Decided April 29, 2022

 Issue:

Whether Claimant’s receipt of full salary benefits under Act 534 constitutes receipt of “total disability compensation” under Section 306(a) of the WC Act for purposes of triggering Act 111’s IRE mechanism?

Background:

Claimant sustained the first work-related injury in 2012.  Claimant sustained a second work-related injury in 2014. In 2020 the Employer filed two Modification Petitions under Act 111 — one regarding the 2012 Injury and the other regarding the 2014 Injury — seeking to change Claimant’s disability status from total to partial based on the results of an IRE performed on June 2, 2020, which yielded a whole-body impairment rating of less than 35%.    The Claimant receives an amount equal to his full salary under Act 534, the Insurer pays workers’ compensation [TTD] benefits to Employer, which then adds sufficient amounts to the workers’ compensation benefits to bring the sum up to the level of the Act 534 benefits, and the total is then paid to Claimant. Accordingly, Claimant receives workers’ compensation [TTD] benefits plus additional amounts added to equal his Act 534 rate.

Holding:

Act 534 was passed by the General Assembly to assure that state workers in positions at institutions considered more dangerous than normal would receive full salary during periods of work-related disability. Pursuant to Act 534, the Commonwealth employer pays a “full salary” to any employee “injured during the course of his employment” by a person confined in one of the above-mentioned facilities “until the disability arising therefrom no longer prevents his return as an employee of such department, board or institution at a salary equal to that earned by him at the time of his injury.”  Act 534 benefits are “intended to supplement, not replace, workers’ compensation and occupational disease benefits.”   Employer here is self-insured, and, Employer accepted Claimant’s 2014 Injury and agreed to reinstate Claimant’s TTD benefits effective January 27, 2016, for which it paid Claimant Act 534 benefits. The claimant received Act 534 benefits for more than 104 weeks prior to the June 2, 2020 IRE. As with HLA benefits, two-thirds of the Act 534 payments that Claimant received represents total disability benefits under the WC Act as a matter of law. Because Employer made payments as mandated by the WC Act, Employer is afforded all rights thereunder, including the right to seek modification of Claimant’s workers’ compensation benefits under Section 306(a.3) of the Act. To conclude otherwise and deny the Employer the ability to seek a modification of benefits under Act 111 simply because Claimant was entitled to additional benefits under a separate statutory provision would be contrary to the law.

Affirmed

George White v. City Of Philadelphia (Workers’ Compensation Appeal Board)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 29, 2022 

Issue:

Where a Claimant does not challenge a 2010, IRE until after Protz II was decided, is his right to reinstatement of total disability limited to the date on which he filed his reinstatement petition?

Background:

Claimant petitioned for review of an adjudication of the Workers’ Compensation Appeal Board (Board) reinstating his total disability benefits as of February 21, 2019, the date on which he petitioned for reinstatement. Claimant argued that the Board erred and should have reinstated his benefits as of October 7, 2010, the date that his disability status was modified from total to partial based upon an unconstitutional impairment rating evaluation (IRE) conducted under former Section 306(a.2) of the Workers’ Compensation Act (Act). 

 Holding: 

Claimant did not file his petition seeking reinstatement of benefits until February 21, 2019, after the Supreme Court’s decision in Protz II was issued. The WCJ credited Claimant’s testimony and granted his reinstatement petition as of the date he petitioned for reinstatement. The WCJ’s decision is consistent with Whitfield and its progeny.  The claimant was not deprived of a vested right to workers’ compensation benefits as to be vested, these rights must be more than an expectation, based upon an anticipated continuance of existing law. It must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from a demand made by another.  A WCJ may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its WCJ, upon petition filed by either party.  As such, there are no vested rights in workers’ compensation benefits.  Because Claimant did not challenge the 2010, IRE until after Protz II was decided, he is only entitled to a reinstatement of total disability benefits as of the date on which he filed his reinstatement petition.

Affirmed

Brian Temme Tree Service And SWIF v. Jerry Ecott (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Filed May 10, 2022

Issue:

Whether the WCJ’s denial of the Employer’s Modification Petition, based upon an IRE, was supported by substantial, competent evidence?

Background:

On March 27, 2019, Employer required Claimant to undergo an IRE pursuant to Section 306(a.3) of the Act. Based on the results of the IRE, Employer filed its Modification Petition on April 18, 2019. Here, Employer presented the written IRE report in support of its Modification Petition. Claimant did not submit any evidence addressing the IRE.  Instead, he submitted a series of “evaluation reports” from another physician.  These reports did not apply the Guides or address Claimant’s impairment rating in any other fashion. Furthermore, Claimant’s counsel admitted on the record that the reports were offered for “historical” purposes only, while the WCJ expressly found the reports did not address impairment rating.   Neither party presented live testimony, and Claimant’s counsel was not able to cross-examine the IRE doctor.   The WCJ rejected the IRE as not credible or persuasive to support a modification of benefits.   The WCJ supported this conclusion by finding that the IRE report did not adequately address Claimant’s documented chronic pain issues and its effect on Claimant’s ability to function.  Also she took issue with The IRE doctor’s application of the Guides, finding that although the percentage assigned for each condition is 5%, which mathematically adds up to 15%, she was not convinced that the aggregate effect of the pain associated with these conditions may not be significantly more. Finally the WCJ pointed to various testing and questioning which was not performed as part of the  IRE.

Holding:

After an injured worker has received total disability benefits under the Act for 104 weeks or more, Section 306(a.3) of the Act authorizes employers to conduct an IRE.  The worker may then contest the results of the IRE through submission of contrary evidence or by cross-examining the employer’s witnesses.  The WCJ’s findings are not supported by substantial evidence of record.  A WCJ cannot support her conclusions by simply interjecting her own lay opinion on medical subjects. Here, the WCJ rejected the IRE impairment rating based solely on her personal opinion of how an IRE addressing Claimant’s particular condition should be conducted. Given that the IRE report was the sole evidentiary support for Employer’s Modification Petition, these erroneous findings of fact were clearly central to the WCJ’s decision. Accordingly, because these findings are not supported by substantial evidence, the WCJ erred in denying Employer’s Modification Petition and the Board erred in affirming that determination.

Reversed

 Republic Services of Pennsylvania, LLC v. Robert Schaffer, Jr. (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided May 12, 2022 

Issue:

Did the WCJ err in failing to grant Employer a credit for previously paid weeks of partial disability pursuant to the retroactivity clause of Act 111, where a crucial document, not part of the record in the matter, was used by the WCJ to justify treating those previous weeks as total disability payments?

Background:

Prior to 2012, the Employer filed a modification petition seeking to change Claimant’s disability status based upon an IRE. In 2012, Claimant signed a supplemental agreement that reflected that Claimant’s benefits are to be modified to partial disability as of August 22, 2011.   However, there was a stipulation in 2018, as a result of Protz, in which Employer agreed that Claimant’s disability was a total disability and not a partial disability as part of the litigation of a Reinstatement Petition.  The parties agreed that the petition should be granted reinstating Claimant’s benefits to total as of August 22, 2011.   On March 4, 2019, Claimant underwent a second IRE by Dr. Michael Weiss, who found that Claimant’s impairment rating was 28% based on the AMA Guides, Sixth Edition (Second IRE). Employer filed a Modification Petition in April 2019 based on the Second IRE, requesting the benefit status be modified to partial disability. The WCJ granted the Modification Petition as of the date of the Second IRE.  He concluded that Employer was not entitled to credit for the weeks it paid partial disability benefits since those provisions of the Act were found unconstitutional.   The WCJ modified the wage loss benefits to temporary partial disability pursuant to the 28% rating in the Second IRE in regard to Claimant’s work-related injuries. The WCJ found the benefits prior to the date of the Second IRE (March 4, 2019), should be classified as temporary total disability benefits and not partial disability benefits, based, in part, on the 2012 Agreement.  Further, the WCJ ordered that all wage loss benefits paid before March 3, 2019, “shall be considered temporary total disability benefits.”

Holding:

This matter turns on the 2018 stipulation.  Employer’s agreement to classify Claimant’s disability status as “total,” retroactive to August 2011 was in lieu of litigating the then pending Reinstatement Petition. The 2018 Stipulation was not made an exhibit or submitted formally as evidence during the litigation of the Modification Petition before WCJ.  Nevertheless, based on the circumstances, exclusion of the facts agreed upon in the 2018 Stipulation is not appropriate. This situation is more akin to recognition of adjudicated facts than to judicial notice. Employer improperly seeks to disclaim the application of the adjudicated facts of the prior proceeding related to reinstatement.    This Court does not construe Protz to have compelled all employers to agree to classify all claimants as having a total disability. Employer elected not to litigate the Reinstatement Petition, pure and simple.  In lieu of litigating whether Claimant was entitled to reinstatement at the total disability level, Employer agreed to classify Claimant’s benefits as total disability benefits. Because the 2018 Stipulation set forth facts that were the basis for a subsequent adjudication, and made a part of that decision, it was not improper for the Board to consider it. Employer was properly bound by its agreements.

Affirmed

 Sandra Tufano v. Tammy L. Clause, P.C. (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 13, 2022 

Issues:

Is the Board’s order, which affirmed the WCJ’s finding that Claimant had reached MMI supported by substantial, competent evidence?   Does Section 306(a.3) of the Act, 77 P.S. 511.3,  deprive Claimant of a vested statutory right in violation of the Remedies Clause of the Pennsylvania Constitution?

Background:

Claimant sustained a work-related soft tissue neck strain.   In April 2017, Claimant underwent an IRE per former Section 306(a.2) of the Act.   Claimant’s IRE resulted in a whole-body impairment rating of less than 50%. As a result, Employer converted Claimant’s disability status from temporary total disability (TTD) to partial disability. On June 20, 2017, however, the Supreme Court issued its decision in Protz II.  In response to the Protz II decision and to reestablish the IRE process, on October 24, 2018, the General Assembly enacted Act 111, which took immediate effect.  Subsequent to its enactment, on September 11, 2019, Claimant underwent another IRE.  Based on this impairment rating, Employer filed a Modification Petition seeking to change Claimant’s disability status from TTD to partial disability.

Holding:

There was substantial evidence to support the WCJ’s findings and the Board’s conclusions as to MMI. Further, Employer was not required to wait 104 weeks from the effective date of Section 306(a.3) of the Act before obtaining an IRE.  There are reasonable expectations under the Act that benefits may change.  The enactment of Section 306(a.3) of the Act did not change Claimant’s status, deprive her of any vested rights, or change the status of her workers’ compensation benefits. Section 306(a.3) of the Act merely established a mechanism for Employer to seek modification of Claimant’s disability benefits in the future. Accordingly, we reject Claimant’s constitutional challenge to Section 306(a.3) of the Act.

Affirmed

 BUREAU FORMS

 The School District Of Philadelphia v. Carleton Holman (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 19, 2022 

Issues:

Did the Board erred in reversing the WCJ’s decision denying and dismissing Claimant’s Penalty Petition, where it is argued the Employer followed the Act and the regulations by correctly utilizing a form prescribed by the Department, and otherwise acting in accordance with the law?

Background:

Employer issued an NTCP, dated recognizing various injuries.  Pursuant to the NTCP, Employer agreed to pay Claimant medical benefits and wages in lieu of compensation. Shortly thereafter Employer issued a Medical-Only NCP for the injuries and stopped paying wage benefits. Claimant filed a Penalty Petition alleging that Employer violated the Act and regulations by unilaterally stopping payment of wage compensation. Claimant sought penalties and a reinstatement of compensation benefits. Claimant testified that he never received a Notice Stopping Temporary Compensation (NSTC).   Employer argued that by issuing a Medical-Only NCP within 90 days of issuing the NTCP, it complied with Bureau regulation 34 Pa. Code § 127.17, and did not otherwise violate the Act.

Holding:

Section 406.1(c) of the Act generally provides that if an insurer controverts the right to compensation, it shall promptly notify the employee or his dependent, on a form prescribed by the Department, stating the grounds upon which the right to compensation is controverted and shall forthwith furnish a copy or copies to the Department.   Section 406.1(d) of the Act specifically addresses NTCPs. NTCPs are to be used in situations where, as here, an employer is uncertain whether a claim is compensable under the Act or the extent of its liability. Under 34 Pa. Code § 121.17(d)(1)-(3), when an employer seeks to stop paying temporary compensation under an NTCP, an employer may file: (1) an NSTC and NCD within a prescribed timeframe; or (2) an NCP; or (3) an Agreement for Compensation for Disability or Permanent Injury.   Requiring an employer to issue an NSTC and NCD when it chooses to accept medical liability would essentially require an employer to misinform a claimant as to the status of his or her claim and demand that a claimant expend the time and resources needed to file an unnecessary claim petition in order to vindicate his or her rights and would defeat the humanitarian purposes of the Act. The filing of a Medical-Only NCP to stop compensation payments under an NTCP comported with both the Act and its regulations, The WCJ did not err in determining that Employer did not violate the Act or regulations and by denying and dismissing Claimant’s Penalty Petition.

Reversed

 JUDICIAL DISCRETION

Nicholas Conner V. Ram Forest Products, Inc. And Todd Smith Logging, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided April 28, 2022

Issue:

Is the WCJ’s determination that the claimant was an independent contractor, and not an employee supported by substantial evidence?

Background:

The tax forms completed by Claimant revealed his status as an independent contractor. Claimant completed a W-9 form, acknowledging that he was a sole proprietor and not an employee. Furthermore, Ram issued 1099 Forms in 2017, 2018, and 2019 indicating that it considered Claimant as an independent contractor and not an employee.  Claimant completed tax forms in 2017, 2018, and 2019, noting his self-employment as a logger. Furthermore, there is no dispute that Claimant was not paid based on his hours of work, or at a weekly rate, but instead was paid on the basis of his production. Finally, logging was not part of the regular business of Ram. Ram is a high volume hardware lumbar sawmill which does not employ any loggers. While it is obvious that Ram, as a sawmill, needs lumber, it was not part of its regular business to perform the logging work. To the contrary, Ram hired independent contractors to perform the logging.  On November 13, 2020, the WCJ held that Claimant failed to establish he was Ram’s employee when he was injured on August 16, 2019. Claimant appealed to the Board. On September 1, 2021, the Board affirmed the WCJ’s decision.  

Holding:

Section 104 of the Act defines an employee. There is no bright line rule for determining whether a particular relationship is that of an employer-employee or owner-independent contractor.  Nevertheless, our Supreme Court has established the following factors that must be considered when making such determination:  Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer; and also the right to terminate the employment at any time.   Since this Court may not reweigh the evidence or the WCJ’s credibility determinations, and because the record evidence supports the WCJ’s findings of fact and conclusions of law, this Court holds that the Board properly affirmed the WCJ’s determination.

Affirmed

Josephine Hinchey v. Mercy Catholic Medical Center (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 28, 2022

 Issue:

Did the WCJ fail to issue a reasoned decision based on the evidence as a whole? 

Background: 

The WCJ found Claimant’s medical evidence incompetent because it did not address how the work injuries were causally connected to her new diagnoses. Only one of her doctors, Dr. Murphy, even acknowledged that the accepted work injury was a lumbar strain and he failed to address that Claimant had fully recovered from that injury in 2015 and was claiming a recurrence of the injury. Thus, none of her medical experts explained how the lumbar strain recurred and caused new injuries and/or aggravated preexisting injuries. Accordingly, none of the medical experts based their diagnoses on the factual record of the case, rendering their opinions incompetent.

 Holding: 

Whether medical evidence is competent is a conclusion of law reviewable on appeal.  A medical expert’s opinion is not rendered incompetent unless it is solely based on inaccurate or false information.  The opinion of a medical expert must be viewed as a whole, and inaccurate information will not defeat that opinion unless it is dependent on those inaccuracies.   Claimant has the burden of proving a causal connection between the previously accepted work injury and her current disability. Her first expert made no attempt to address a causal connection.  Her second expert described the 2014 work injury as causing neck and back pain even though her claim of neck injuries was rejected by a prior WCJ.  The third expert diagnosed Claimant with numerous neck and back injuries along with anxiety, depression and facial twitching and claimed that all the diagnoses are related to the work incident.  However, he did not identify the work injury as a lumbar strain nor did he acknowledge a prior WCJ’s decision that found that Claimant had fully recovered from her lumbar strain and which rejected Claimant’s attempt to include neck injuries, anxiety, and depression as work-related injuries.   Thus, claimant’s medical evidence was incompetent.   Section 422(a) of the Act, 77 P.S. § 834, requires a WCJ to make the findings of fact and credibility that are necessary for meaningful appellate review. Here, it was not necessary to address Claimant’s credibility. Her medical evidence was deemed incompetent and without it she could not prevail. Thus, the WCJ properly complied with Section 422(a) of the Act, and his decision was reasoned.

Affirmed 

Accurate Engineering Solution v. John Anderson And Williams Form Engineering (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 29, 2022 

Issue:

Whether the WCJ erred or abused her discretion when she granted Claimant’s request to withdraw his claim petition over Accurate’s objection, when the withdrawal prejudiced Accurate’s ability to seek reimbursement from Williams for a medical bill Accurate mistakenly paid?

Background:

Claimant responded to an unsolicited email from Accurate, a technical staffing agency, about an opening for a plant manager at Williams. Williams’ representatives interviewed and hired Claimant for the position. Williams directed Claimant’s work activities on site, but at least for the first 90-day probationary period, Claimant was employed and paid by Accurate under Accurate’s agreement with Williams.  Claimant filed a claim petition alleging that he was injured in the course of his employment with and on the premises of Accurate when he slipped and fell 15 feet, sustaining multiple injuries. Accurate issued an NCD on the basis that the injury was not in the scope of Claimant’s employment.  The following day Accurate paid $44,065.71 to Main Line Health for surgical services rendered to Claimant from December 7, 2018, to December 12, 2019.   The payment was inadvertent according to Accurate’s counsel. Accurate filed a joinder petition against Williams on the basis that Claimant was a borrowed employee.  There was no agreement as to Claimant’s employer.

Holding:

The WCJ’s failure to consider Accurate’s joinder petition, and to determine whether Accurate or Williams is the responsible employer, is the precise source of her error here. Accurate’s joinder petition was pending before the WCJ when she received Claimant’s request to withdraw. Accurate was prejudiced when the WCJ granted Claimant’s withdrawal, over Accurate’s objection, before she admitted evidence and determined Claimant’s responsible employer. The timing of the WCJ’s granting Claimant’s withdrawal before considering Accurate’s pending joinder petition was in error because it failed to “promote, consistent with fairness and due process, the orderly and expeditious determination of proceedings” before the WCJ under the Act. 34 Pa. Code § 131.1(a). The WCJ’s decision denied Accurate the opportunity to be heard on the issue of Claimant’s employer, without which it lacks a forum to seek reimbursement for the medical bill it mistakenly paid. The WCJ erred when she, in effect, closed the record prematurely, before Accurate had the opportunity to submit “all of [its] evidence and rest[ ],” as required by the Department’s regulation.   The dispute which must be resolved on remand is whether Accurate or Williams is Claimant’s employer, and which employer or insurer is responsible for the medical bill that Accurate paid to Main Line Health for Claimant’s surgery.

Reversed And Remanded 

WAIVER, FORFEITURE, UTILIZATION REVIEW

 Joan M. Rotegliano v. Clinton Hospital Corporation (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided May 12, 2022 

Issues:

Should Employer’s appeal be quashed because Employer failed to properly preserve its issues in its appeal?  Did the claimant provide a reasonable excuse for her failure to attend the IME? May the WCJ may find palliative treatment unreasonable and unnecessary where it is shown to be of little value due to the passage of time or other considerations?

Background:

The Claimant sustained a work-related injury which was accepted as a Herniated Nucleus Pulposus (HNP) at C5-6. Sometime later, a WCJ issued a decision expanding the description of Claimant’s injury.  That decision also upheld a UR report finding Claimant’s prescriptions for opioids to be reasonable and necessary.  Thereafter, in a later proceeding, a WCJ granted Employer’s petition for physical examination and ordered Claimant to undergo an IME at a specified address.   Subsequently, Employer filed a suspension petition based on Claimant’s failure to attend the scheduled IME.

Holding:

Merely listing conclusion of law by number is insufficient to preserve legal issue for appeal.  While an appeal to the Board that enumerates a WCJ’s challenged findings of fact and asserts that they are not supported by substantial evidence will be sufficient to preserve those issues, to the extent a party seeks to raise legal issues to the Board but only lists the challenged conclusions of law without also specifying the legal basis for appeal in its documentation, those claims will be deemed waived.

Claimant did not provide a reasonable excuse for her failure to attend the IME. Claimant’s affidavit stated that her attorney’s office gave her an address in Lemoyne and her caregiver-driver Shannon Fields printed directions to that address. They arrived on time for the scheduled IME but were told they were not in the system for an appointment. They were given another address in Mechanicsburg, which was also incorrect. They were finally given the correct address in Harrisburg, but by the time they arrived, nearly three hours after the appointment time, the IME doctor had left for the day. They tried calling Claimant’s counsel several times but were unsuccessful. An affidavit from Employer’s IME vendor stating that an appointment letter with the correct Harrisburg address was sent to Claimant and her counsel and the address was confirmed with counsel’s office prior to the IME date; the affidavit adds that the vendor does not conduct IMEs in Lemoyne or Mechanicsburg. Further, the WCJ’s IME order and IMX’s letter advised both her and her counsel of the correct address or that she had the opportunity for Employer to transport her to the IME but chose instead to be personally responsible for her attendance.

Treatment may be reasonable and necessary even if it provides solely palliative relief and does not cure the underlying injury. However, the WCJ may find palliative treatment unreasonable and unnecessary where it is shown to be of little value due to the passage of time or other considerations.  Given the change in the way these medications are being used in the medical community, it is not unreasonable for an employer to question the ongoing, long term prescription of opioids to claimants. 

Affirmed 

RES JUDICATA AND COLLATERAL ESTOPPEL

 Pocono Mountain School District v. Jeffrey Kojeszewski (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 21, 2022 

Issues:

Whether the Board erred in affirming the decision and order of WCJ because the opinion of Dr. Talsania was contrary to facts previously found by prior WCJ and the medical evidence established that Claimant was fully recovered from those injuries?

Background:

Claimant sustained a work-related injury when he slipped and fell while applying polyurethane to a gymnasium floor. Claim petition granted and recognized various work-related injuries.  The Claimant’s benefits were suspended when Claimant returned to his pre-injury position with no loss of wages.   In 2019, Claimant filed a review petition seeking to add left brachial plexopathy to the description of his injuries, as well as a reinstatement petition seeking wage loss benefits as of June 26, 2018.  Employer filed a termination petition alleging that Claimant had fully recovered from his work injuries as of September 12, 2019.

Holding:

Here, there was not an identity of issues between the claim and review petitions. In the claim petition, Claimant alleged different injuries from those he sought to add by means of the review petition filed in light of subsequent medical developments. Therefore, res judicata does not apply.   Here, ulnar nerve subluxation was not raised as an issue in the claim petition. Accordingly, it cannot be said that Claimant had a full and fair opportunity to litigate that issue, and similarly, it was not essential to the judgment. Therefore, collateral estoppel is inapplicable.   Further, the uncontradicted evidence indicated that Claimant had fully recovered from the injuries recognized in the earlier decision. However, a partial grant of a termination petition is improper, as a termination requires that all disability has ceased. Accordingly, in light of Claimant’s ongoing disability relating to left brachial plexopathy, this Court affirms the denial of Employer’s termination petition based on Claimant’s purported recovery from his previously recognized injuries.

Affirmed 

PENALTIES 

Theresa Skay v. Borjeson & Maizel Llc (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decision May 10, 2022 

Issue:

Whether the WCJ erred as a matter of law by denying a Penalty Petition because the Employer unilaterally refused to pay for medical treatment that had been subjected to an unchallenged [UR] Determination that found the treatment reasonable and necessary?

Background:

Claimant fell in a crosswalk while in the course of her employment. Claimant’s work injury had been established as “status post L5-S1 fusion, bilateral SI joint disease with SI joint mediated pain,” and “reflex sympathetic dystrophy of the lower left extremity.” A WCJ denied Claimant’s Review Petition, which sought to add mood disorder and major depressive episodes to the work injury. That WCJ also found that Claimant did not suffer from postural orthostatic tachycardia syndrome.   During Claimant’s receipt of workers’ compensation benefits, UR Determinations were completed on August 17, 2015, and December 11, 2017. Both UR Determinations found that every medication prescribed to Claimant by provider was reasonable and necessary.   On November 12, 2019, Claimant filed a Penalty Petition, alleging that Employer violated the Workers’ Compensation Act (Act) by failing to pay for some of Claimant’s prescription medications. Many of the medications for which Employer ceased payment had been approved as reasonable and necessary as part of the 2015 and 2017 UR Determinations.  Employer unilaterally refused to pay for some of Claimant’s prescription medications, because Employer believed that those prescription medications were not causally related to Claimant’s work injury. Employer was legally permitted to do this, but Employer would have been liable for penalties if a WCJ determined that the prescription medications at issue were causally related to Claimant’s work injury.  Claimant did not present any other challenges to Employer’s evidence that the prescription medications at issue in this matter were unrelated to the work injury. Claimant relied solely on the prior, unchallenged UR Determinations, which Claimant believes established that the prescription medications at issue in this matter were determined to be reasonable and necessary for treatment of Claimant’s work injuries.

Holding:

If an employer believes that a claimant’s medical expenses are not causally related to the claimant’s work injuries, the employer may unilaterally stop paying for those medical expenses. If an employer does so, however, the employer “assumes the risk of exposure to possible penalty liability contingent upon a WCJ’s ruling concerning the causal relation of the medical costs.   An employer, who questions ‘causation’ and the subsequent medical bills, may escape penalty provision liability for unilaterally ceasing to pay for these medical bills, if a WCJ later determines that the medical bills were indeed not causally related to the work-related injury.  The only evidence Claimant presented or referenced to establish a causal relationship between the prescription drugs at issue and the work injury was the prior UR Determinations. UR Determinations do not decide the causal relationship between treatments and the work injury. Thus, Claimant did not present any evidence establishing that the prescription medications were causally related to the work injury. Accordingly, the WCJ’s findings and the Board’s conclusions, that Claimant failed to establish that the prescription medications at issue in this matter were causally related to Claimant’s work injury, are free of legal error.

Affirmed 

VOLUNTARY REMOVAL 

Cargill Meat Solutions v. Kathleen Johnson (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 4, 2022 

Issue:

Whether the WCJ erred when he determined that Employer had failed to establish that Claimant had retired or voluntarily left the workforce?

Background:

Claimant worked for Employer for 12 years. Claimant suffered a work-related injury. Claimant continued to work but was eventually terminated by Employer. A WCJ awarded Claimant total disability benefits as of the day after the termination from employment.  Thereafter, Employer sought to suspend Claimant’s benefits, asserting that she had voluntarily withdrawn from the workforce. . According to Employer, Claimant testified that she has not looked for work since 2017; that she is currently on SSDI; and that she did not plan on returning to work.  The WCJ credited Claimant’s testimony in its entirety but specifically credited her testimony that she would have continued working but-for the work related injury and subsequent involuntary discharge.  

Holding:

Disability benefits must be suspended when a claimant voluntarily leaves the labor market upon retirement.  Only after the employer has met this initial burden does the claimant incur any evidentiary burden of proof. Whether a claimant has elected to receive a pension is probative but not conclusive of a claimant’s desire to leave the workforce.   Further, the receipt of SSDI could be evidence that a claimant’s work injury forced him or her out of the labor market.  Employer offered no evidence to meet its burden other than Claimant’s testimony. The WCJ considered Claimant’s lengthy service with Employer; that she had continued to work after her injury, even beyond her physical limitations; that she had not resigned but was terminated by Employer; that her disability was permanent; that she had nonetheless sought employment within her functional limitations; and that she had qualified for SSDI based on her disability and not due to her age. Based on this substantial evidence, the WCJ reasonably concluded that Employer failed in its initial burden to prove that Claimant had voluntarily left the workforce.

Affirmed 

YELLOW FREIGHT 

Joanne Desue v. Bank Of America (Workers’ Compensation Appeal Board)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 21, 2022 

Issues:

Whether Claimant was entitled to a presumption that her disability continued and the burden was on Employer to overcome that presumption, based upon the late answer?  Whether the Employer offered competent evidence to rebut the presumption of ongoing disability or the onset of psychological injuries?

Background:

Claim Petition alleging that she sustained a work-related injury while in the course of her employment as a paralegal. Employer filed an untimely Answer to the Claim Petition denying the material allegations contained therein.  Claimant’s counsel, citing Yellow Freight, moved to have all facts alleged in the Claim Petition deemed admitted because of Employer’s failure to file a timely answer.  Thereafter, Claimant filed a Review Petition alleging that she is also suffering from psychological symptoms and disability as a result of her work injury, and she sought to amend her claim to include a psychological condition.

Holding:

Under Yellow Freight, because every factual allegation asserted in the claim petition is admitted as true, the employer is barred from presenting any affirmative defenses or evidence to rebut the facts deemed admitted. However, an employer is not precluded from offering evidence in rebuttal to facts that a claimant did not specifically allege in a claim petition.  Further, an unexcused late answer admits facts, but not legal conclusions. Pursuant to Yellow Freight, the admitted allegations are that Claimant sustained the listed injuries and that she was entitled to the presumption of an ongoing disability as a result of her work-related injury. It was Employer’s burden to rebut this presumption. In this regard, the WCJ erred.  Although the WCJ erred by placing the burden on Claimant to prove an ongoing disability, the WCJ’s misplacement of the burden was harmless under the circumstances here because Employer had otherwise presented rebuttal evidence that Claimant had fully recovered from her work injury.

Employer’s expert did not accept that Claimant had sustained an aggravation of a preexisting condition even though that allegation was set forth in the Claim Petition and was deemed admitted by Employer.  By refusing to accept that Claimant sustained an aggravation of a preexisting degenerative condition, it was not possible for Employer’s expert to give an opinion that Claimant had fully recovered from that injury. The WCJ erred by finding that Claimant had fully recovered from her work injury, limiting the award of compensation to a closed period, and terminating Claimant’s benefits.

Although both all doctors opined that Claimant has a psychological impairment as a result of her ongoing physical symptoms, the WCJ did not make specific credibility determinations regarding their testimony or findings regarding the nature of her mental impairment and relation to the work injury. The matter is remanded to the WCJ to render necessary findings of fact and conclusions of law regarding Claimant’s Review Petition.

Reversed In Part, Vacated In Part, And Remanded For Further Proceedings.

Tashneen Webb v. Prime Healthcare Services, Inc. (WCAB)
Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion
Decided April 29, 2022

Issue:

Whether the WCJ erred in holding that Employer presented an adequate excuse for its late answer?

Background:

Employer filed its answer three days after the deadline set forth in the Workers’ Compensation Act (Act).  The WCJ denied Claimant’s Yellow Freight motion, attributing Employer’s untimely answer to the confusion as to the addresses of Employer.

Holding:

The grant of Claimant’s Yellow Freight motion would not change the outcome. An employer’s admission covers allegations up to the answer deadline. However, the employer may rebut the presumption with evidence. Employer presented the deposition testimony of Dr. Sachs, who testified that as of the date of the IME, November 30, 2018, Claimant had fully recovered from her July 21, 2018, work injury; required no further medical treatment; and could return to work without restriction. In short, even if Claimant’s Yellow Freight motion had been granted and the allegations in the claim petition were accepted as true, Dr. Sachs’ testimony satisfied Employer’s burden of proving that Claimant had fully recovered from her work-related injuries as of November 30, 2018, the date of the IME.  An expert need not believe the claimant has sustained a certain injury so long as the expert opines on whether the accepted injury continues to disable the claimant). Accordingly, we affirm the Board’s adjudication.

Affirmed 

NEW JERSEY WORKERS’ COMPENSATION

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. 

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 receive da 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 as 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.