PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
6/29/2022 – 7/31/2022
IMPAIRMENT RATING EVALUATIONS
Joseph Janison v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 29, 2022
Issues:
(1) Whether the Board erred by determining that Act 111 can be applied to injuries that occurred before its effective date; and (2) Whether the Board erred by determining that Act 111 is not an unlawful delegation of legislative authority?
Background:
In 2020 Employer filed the Modification Petition seeking to modify Claimant’s WC benefits based on an IRE. The WCJ granted Employer’s Modification Petition. Claimant appealed.
Holding:
The Court noted that it has made clear in its prior decisions that the 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Accordingly, the Board properly determined that Act 111 can be applied to injuries that occurred before its October 24, 2018, effective date. Further, Act 111 is not an unlawful delegation of legislative authority. The non-delegation doctrine does not prohibit the General Assembly from adopting as its own a particular set of standards which already are in existence at the time of adoption. That is what the General Assembly did here when it adopted the 6th Edition, second printing, of the AMA Guidelines. When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will become the law of this Commonwealth. It is not delegating its authority to legislate.
Affirmed
Noel Maldonado v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 26, 2022
Issue:
Whether Act 111 is unconstitutional?
Background:
Claimant’s left knee was injured during the course of his employment, which resulted in Employer’s issuance of a notice of compensation payable. In November 2019, Employer requested an IRE of Claimant, which happened on February 6, 2020. The physician-evaluator converted Claimant’s 9% lower-extremity impairment to a 4% whole-person impairment. Based on the IRE findings, Employer filed its petition to modify, which the WCJ granted pursuant to Section 306(a.3), modifying Claimant’s benefit status from total to partial.
Holding:
The retroactive application of Act 111 is not unconstitutional. If the employer pursues a new IRE under Act 111 following the procedures of Section 306(a.3), it will be entitled to credit for the weeks of partial disability benefits paid prior to the effective date. In this case, the IRE of Claimant was performed after the effective date of Act 111. The Court has previously rejected the claimant’s constitutional claims, holding that Claimants did not automatically lose anything by the enactment of Act 111, which simply provided employers with a way to change a claimant’s disability status by a different means. This Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing total disability status. When the PA Supreme Court struck Section 306(a.2) in Protz II, that provision was not held to be void ab initio, as though it had never been enacted in 1996.
Affirmed
Sheryl Sipes v. UPMC Jefferson Regional Home Health, LP (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 28, 2022
Issues:
(1) Whether Section 306(a.3) of the Act violates Article I, Section 1 or Article I, Section 11 of the Pennsylvania Constitution since it retroactively changes the remedies for an injured worker under the Act and (2) Whether Section 306(a.3) of the Act violates Article III, Section 18 of the Pennsylvania Constitution since it does not provide for reasonable compensation as it measures impairment and not disability?
Background:
Claimant fell and suffered an injury in the course of her employment with Employer. Employer accepted the work injury through a Notice of Temporary Compensation Payable, which converted to a Notice of Compensation Payable. In 2019 Claimant underwent an IRE, which returned a 14% impairment rating based on the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. Employer filed a Modification Petition requesting Claimant’s disability status be changed from temporary total disability to temporary partial disability (TPD) as of the date of the IRE. Claimant did not present any medical evidence to rebut Employer’s IRE. The WCJ granted Employer’s petition and modified Claimant’s status to TPD.
Holding:
Claimant’s arguments that Act 111 of 2018, Section 306(a)(3) of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 511.3, is unconstitutional under Article I, Section 1, Article I, Section 11, and Article III, Section 18 of the Pennsylvania Constitution have been previously raised before, and rejected, by the Court. Accordingly, following prior, precedential decisions, the Court rejected Claimant’s constitutional challenges.
Affirmed
APPELLATE PRACTICE
Egan Payne, Sr. v. Americold Logistics LLC (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided June 29, 2022
Issue:
Whether the Claimant’s appeal to the Board was properly dismissed as untimely filed?
Background:
Claimant sustained a work injury in 2018. Employer issued a Medical-Only Notice of Temporary Compensation Payable accepting the work injury as a lumbar strain. The WCJ determined that the Medical-Only NTCP converted to a Medical-Only Notice of Compensation Payable by operation of law. Thereafter, Claimant filed the Claim Petition alleging that the 2018 low back injury rendered him partially disabled for a period, and thereafter totally disabled. Employer filed a Termination Petition. The WCJ granted Claimant’s Claim Petition for partial wage loss benefits for a limited period, with a suspension thereafter. The WCJ also granted Employer’s Termination Petition. Claimant appealed to the Board, and the appeal was dismissed as “not timely received by the Board.”
Holding:
An appeal will be considered filed within the 20-day period if it is mailed to the Board or is entered into WCAIS no later than the twentieth day after notice of a WCJ’s decision. The Board’s Special Rules provide that an appeal by an aggrieved party “must” be mailed directly to the Board, as opposed to the WCJ or Bureau Petitions Section, within 20 days, on a form provided by the Board. Claimant incorrectly submitted his appeal via the USPS to the WCJ at the Philadelphia Field Office, within the appeal deadline. The Philadelphia Field Office forwarded the appeal to the Board for its consideration, and the Board date-stamped the appeal as received after the appeal deadline. As Claimant improperly mailed his appeal to the WCJ, instead of the Board and the Board did not receive Claimant’s appeal until over one month after the appeal deadline, the Board properly dismissed Claimant’s appeal as untimely.
Affirmed
PENALTY PETITION
Joseph Ambrogio v. Pocono Mountain School District & Inservco Ins. (WCAB)
Commonwealth Court of Pennsylvania, en banc – Unpublished Memorandum Opinion
Decided June 29, 2022
Issue:
Whether the WCJ and Board erred in denying the Claimant’s Petition in a case where it was alleged that he was not required to submit his reimbursement request for out-of-pocket expenses on forms intended for medical providers and neither the Medical Marijuana Act nor the Drug Act excuses employers from paying for the reasonable, necessary, and causally related medical expenses for work injuries under the WC Act?
Background:
A Compromise and Release Agreement was executed which resolved the indemnity portion of Claimant’s workers’ compensation claim. Employer remained responsible for the payment of reasonable and necessary medical expenses to treat Claimant’s work injury. In 2018, after the passage of the Medical Marijuana Act, Claimant sought and obtained certification to use medical marijuana for his injury. Between August 8, 2018, and December 4, 2019, Claimant submitted requests for reimbursement of his out-of-pocket expenses for medical marijuana to Employer’s counsel, which Employer denied. Claimant filed a Petition asserting that Employer violated the WC Act by failing to pay reasonable and necessary medical expenses related to Claimant’s work injury. Claimant agreed that the injury referenced in his medical reports for medical marijuana certification was “long thoracic nerve neuropathy” and that, in the C & R Agreement, his work injury was “described as a right shoulder impingement.” Claimant further agreed that, while he had sent the bills for reimbursement, he had not sent any medical records. The WCJ issued a decision denying the Petition finding that there was no violation of the WC Act because Claimant had not submitted the reimbursement requests on the requisite forms and, until such reports are submitted, no obligation to pay arises. The Board affirmed on other grounds, holding that, under the Drug Act, marijuana is a schedule I substance, and it is a federal crime to possess a controlled substance. Accordingly, the Board concluded that neither it nor the WCJ could order reimbursement to Claimant for the medical marijuana and affirmed the denial of the Petition on this basis.
Holding:
Claimant’s accepted work injury, is “right shoulder impingement.” The condition upon which Claimant’s medical marijuana certification and recertification were based was “G54.3 Thoracic root disorders, not elsewhere classified.” Claimant’s accepted work injury is not thoracic root disorder. Further, “shoulder impingement” is not one of the serious medical conditions identified in the MMA upon which a medical marijuana certification may be issued. Employer is only liable for medical expenses that arise out of Claimant’s right shoulder impingement, and the medical marijuana certification and Claimant’s purchases of medical marijuana did not so arise from the accepted injury, so Employer was not obligated to reimburse Claimant for those expenses.
Affirmed, although with different reasoning than the Board
EXCLUSIVITY
John Brown v. George Gaydos, an individual, t/d/b/a Gaydos Construction
Superior Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 5, 2022
Issues:
Whether the trial court erroneously concluded that George Gaydos was immune from third-party liability claims as an employer, under the Pennsylvania Workers’ Compensation Act (WCA)? Whether the trial court erroneously applied the “dual capacity” and/or “co-employee” doctrines when granting George Gaydos tort immunity under the Pennsylvania Workers’ Compensation Act?
Background:
George Gaydos (Defendant) had worked in the contracting field through a sole proprietorship, Gaydos Construction. Defendant never hired employees through Gaydos Construction and therefore never obtained workers’ compensation insurance. During the period when Defendant was operating his sole proprietorship, he purchased a John Deere skid loader and used the skid loader on Gaydos Construction jobs. Defendant and Mark Raymond entered into a partnership agreement and formed American Concrete Solutions, LLC (“ACS”). In addition to Defendant and Raymond, ACS hired additional employees and maintained a workers’ compensation insurance policy. While Defendant had performed various kinds of contracting work, including heating, air conditioning, and masonry through his sole proprietorship, ACS focused exclusively on concrete and paving jobs. Plaintiff was employed by ACS and working on an ACS paving project. Defendant had brought the skid loader to the job site with the understanding that he was the only individual who was permitted to use it for the job. Plaintiff attempted to enter the skid loader in order to use it for the paving project, but the arm of the skid loader activated, crushing him between the bucket and the top of the cab. Plaintiff sustained serious injuries, and he subsequently filed a claim for workers’ compensation benefits. ACS issued a notice of temporary compensation payable, accepted Plaintiff’s injuries as compensable under the WCA, and began paying indemnity and medical benefits to Plaintiff. Plaintiff filed a third-party complaint, alleging that Defendant was negligent by improperly maintaining the skid loader and failing to supervise or train Plaintiff to use the piece of equipment. Defendant asserted that he was immune from suit under the WC Act. The trial court entered an order granting Defendant’s motion for summary judgment.
Holding:
In light of the fact that Defendant did not directly employ Plaintiff and he did not exert exclusive control over ACS, the court held that there remains a genuine issue of material fact as to whether Defendant was Plaintiff’s “master” under the WCA. Therefore, the trial court erred by granting summary judgment in favor of Defendant on the basis of the employer immunity. Nevertheless, summary judgement was appropriate based upon the co-employee immunity provision set forth in Section 205 of the WCA, as the Defendant’s alleged liability is based on his negligent conduct as a co-employee. Co-employee immunity is not confined to rank-and-file workers but extends to the managers and executives of an employer and even individuals with an ownership interest in the employer. Defendant was entitled to invoke the co-employee immunity bar to Plaintiff’s negligence action. The evidence of record shows that Defendant was acting in the course of his performance of duties for ACS on the date Plaintiff sustained his injuries. There is no evidence that Defendant performed any work for or was acting on behalf of Gaydos Construction on the date of injury. Defendant is not disqualified from invoking co-employee immunity in light of his status as a manager of ACS, with an ownership interest in the company. Defendant’s work under the trade name Gaydos Construction and his use of the skid loader in this other business does not alter the fact that Defendant was performing work exclusively on behalf of ACS on the date of Plaintiff’s injury.
Affirmed
JUDICIAL DISCRETION
Anwar Singleton v. Dom Leasing, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 5, 2022
Issue:
Whether the Board erred in concluding that the findings in the “Revised Decision,” that his work-related injuries were limited to a soft tissue neck injury, and that he fully recovered from that injury, were supported by substantial evidence?
Background:
Claimant worked as a long-haul truck driver for Dom Leasing, Inc. (Employer). While delivering goods to a Dollar Tree warehouse, he flipped his tractor-trailer. Following the accident, the Pennsylvania State Police cited Claimant for speeding and careless driving and imposed a $2,000 fine. Employer terminated Claimant’s employment. Claimant filed a Claim Petition, alleging he suffered a nonspecific injury to his left ankle, head, neck, and lower back. The WCJ granted the Claim Petition in part in a decision which the Board vacated and remanded. On remand, in the “Revised Decision,” the WCJ credited Claimant’s testimony that his left ankle, shoulder, head, and neck were sore immediately following the accident. However, the WCJ rejected the remainder of Claimant’s testimony, finding he did not suffer a back injury and did not suffer from any ongoing injury.
Holding:
It is not the Court’s role to reopen the debate between the competing medical experts in a case; it is simply tasked with considering whether “substantial evidence” exists to support the WCJ’s findings. The WCJ’s findings were clearly supported by the testimony of employer’s expert.
Affirmed
Pennsylvania State Police v. Michael Tilton (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 21, 2022
Issues:
Whether Claimant’s ongoing disability is attributable to the recurrence of Claimant’s non-occupational back pain such that the WCJ erred in granting the Review Petition? Whether the WCJ erred in admitting a pathology report? Whether the WCJ erred in granting Claimant’s Penalty Petitions?
Background:
Claimant sustained a work injury while enrolled as a cadet in the Pennsylvania State Police Academy (Academy). Employer accepted liability for the work injury through issuance of a Notice of Compensation Payable (NCP), which described the work injury as a strain or tear of the lower back and began paying total disability benefits. The parties executed a Supplemental Agreement (First Supplemental Agreement), which suspended Claimant’s wage loss benefits based on his alleged return to work. Claimant filed a Reinstatement Petition, seeking the payment of wage loss benefits retroactive to the date of his work injury; a Review Petition, requesting an amendment to the description of his work injury to include lumbar disc herniations with radiculopathy and aggravation of a preexisting back condition that required surgical intervention; and a Penalty Petition. Several months later the parties executed another Supplemental Agreement (Second Supplemental Agreement), in which Employer agreed to reinstate Claimant’s wage loss benefits and to pay statutory interest on all past-due benefits. After Employer failed to make the agreed-upon interest payments, Claimant filed a new Penalty Petition.
Holding:
Employer’s argument that the testimony of Claimant’s witnesses failed to satisfy his burden of proof on the review petition is without merit. Employer’s argument that the evidence indicates that Claimant suffered a recurrence of back pain while rising from bed challenges the WCJ’s credibility determinations. It does not matter if there is evidence in the record that supports findings contrary to those made by the WCJ; the pertinent inquiry is whether there is any evidence to support the findings actually made. Which there was in this case. Further, Employer’s argument that the pathology report is inadmissible hearsay was rejected. The courts have long recognized the rule that hospital records are admissible as an exception to the hearsay rule and the Employer has not asserted that the pathology report does not constitute a medical or hospital record under Section 422(b) of the Act. Further, Employer unquestionably violated the Act when it failed to honor its payment obligations under the Second Supplemental Agreement. A claimant is entitled to statutory interest on all due and unpaid compensation. The failure to make do payments need not be intentional to support the award of penalties. Thus, even if a clerical error is to be blamed, the WCJ did not abuse his discretion in awarding penalties pursuant to Section 435(d)(i) of the Act, 77 P.S. § 991(d)(i).
There was a concurring opinion, which agreed with the outcome of the case, but disagreed that the pathology report was admissible. The concurrence noted that case law regarding hospital records in other contexts instructs that the records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms given. This exclusion is consistent with the language of Section 422, which lists the terms “treatment” and “diagnosis” separately in Section 422(c), signifying that they denote distinct concepts. Here, the disputed pathology report is expressly diagnostic in character. Thus, Section 422(b) does not permit its admission as a “record kept by a hospital of the medical or surgical treatment given to an employee in such hospital ….” Further. although an expert may base his or her opinion on otherwise inadmissible documents, the Rules of Evidence do not permit the admission of a document solely because an expert relied on it.
Affirmed
Guillermo Bautista Capellan v. Ashley Holdings, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 28, 2022
Issue:
Whether there was competent medical and factual evidence in the record to support the WCJ’s finding that no work-related injury had occurred?
Background:
Claimant filed a claim petition alleging that he sustained a low back injury with pain in both legs while lifting furniture for Employer. Claimant sought full disability benefits. The WCJ conducted a hearing during which Claimant testified in person. The WCJ scheduled a final hearing, however, that WCJ retired in the interim, and another WCJ was reassigned the case. Thereafter, and following a conference call, the WCJ received deposition testimony from Claimant and various witnesses. The WCJ determined that there was no credible evidence that Claimant suffered an injury at work and that Claimant failed to meet his burden of proof by not submitting credible evidence of a causal connection between his physical condition and the alleged incident at work.
Holding:
The burden of proof remained with Claimant throughout the proceedings and never shifted to Employer. Therefore, the testimony that was ignored was effectively irrelevant, and the WCJ’s findings of fact were sufficient to resolve the issues presented in this case. Section 422(a) of the Act does not require the WCJ to address all of the evidence presented in a proceeding in his adjudication. The WCJ is only required to generally set forth the reasons for making the finding and is only required to make those findings necessary to resolve the issues that were raised by the evidence and which are relevant to making the decision. Here, the WCJ found, as a matter of fact, that Claimant failed to satisfy his burden of proving that he sustained a work-related injury. This finding, in turn, was based on the WCJ’s credibility determinations. More specifically, the WCJ rejected the testimony of Claimant and the testimony of his experts. In light of the WCJ’s explanations the Court concluded that the WCJ articulated adequate and objective reasons for deciding not to credit the testimonies of Claimant and his medical experts.
Affirmed
SUBSTANTIAL EVIDENCE OF RECORD
Sheila Lapotsky White v. Johnson Matthey Holdings, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 5, 2022
Issue:
Whether substantial, competent evidence supports the WCJ’s finding that Claimant had fully recovered from her right ankle injury?
Background:
Claimant was employed as a sales coordinator by Employer. Concurrently, Claimant maintained secondary employment as a waitress. Claimant was injured when she slipped and fell in Employer’s breakroom. Claimant ceased working as a waitress immediately but continued to work for Employer for several months. Employer acknowledged that Claimant suffered multiple injuries including both physical and psychological, including a right knee contusion, a right ankle sprain, and unspecified injuries to the neck, lumbar, and left knee. The Claimant underwent an IME which determined that Claimant had recovered from her work injuries, except the injury to her right knee, and that Claimant could return to sedentary work with restrictions. After considering the evidence, the WCJ determined that Claimant had sustained work-related injuries to her right knee, the cervical and lumbar areas of her spine, right wrist, and right ankle. However, the WCJ further determined that Claimant had recovered from all injuries except the injury to her right knee. For these reasons, the WCJ concluded that Claimant was able to return to her position with Employer, considering the accommodations offered, but remained entitled to partial disability benefits because she could not return to her secondary employment as a waitress.
Holding:
Employer’s expert’s opinion concerning Claimant’s recovery from an injury to her right ankle was not equivocal or incompetent and was based upon substantial evidence of record. A medical expert’s failure to examine a specific body part is not necessarily fatal, provided he assumes the presence of an injury and finds it to be resolved when he conducts the examination. Employer’s expert testimony was competent medical evidence that Claimant had recovered from an injury to her right ankle. The failure of the expert to examine her right ankle specifically does not render the opinion incompetent, where Claimant did not express any complaint regarding her ankle and in referring to an incident report from the day following Claimant’s accident, the expert noted that Claimant had complained of injuries to “both knees, right ankle, right wrist, and low back.” In addition, the expert reviewed an x-ray report that revealed no fracture in Claimant’s ankle. He based his opinions on his physical examination, the records available at the time, and Claimant’s description of her current ailments.
Affirmed
OFFSETS AND CREDITS
Giles J. Cannon, Inc. v. Gordon Walker (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 18, 2022
Issue:
Whether the Employer is entitled to a credit for Claimant’s Federal Pandemic Unemployment Compensation (FPUC) benefits pursuant to Section 204(a) of the Act?
Background:
Claimant was injured when he tripped on mesh at work and sustained a low back contusion. Pursuant to a stipulation, Employer acknowledged Claimant’s injury and agreed to reinstate his benefits. The parties remained at an impasse as to what credits Employer should receive against its workers’ compensation obligation. Claimant had received unemployment compensation (UC) benefits pursuant to Pennsylvania law and FPUC benefits pursuant to the CARES Act. Although the parties agreed that Employer should receive a credit for the UC benefits, Claimant disputed Employer’s assertion that Employer should receive a credit for Claimant’s FPUC benefits. In addition, Claimant disputed Employer’s assertion that it should receive a credit for Claimant’s $1,200 federal stimulus payment, also resulting from the CARES Act. The WCJ concluded that Employer was entitled to a credit for Claimant’s FPUC benefits but not for his $1,200 stimulus payment. Claimant appealed to the Board. On September 15, 2021, the Board issued its opinion and order, which affirmed in part and reversed in part the WCJ’s final decision. The Board reversed the determination that Employer was entitled to a credit for Claimant’s FPUC benefits but affirmed in all other respects. Employer filed a petition for review in this Court, and now argues the Board erred by concluding that it is not entitled to a credit for Claimant’s FPUC benefits.
Holding:
The purpose of Section 204(a) is to excuse employers from paying duplicate benefits for a single loss of earnings. Disallowing a credit for FPUC benefits would not be contrary to that intent since the federal government paid for FPUC benefits. Further, granting a credit would result in disparate treatment between those who are permitted to collect FPUC by virtue of having lost their jobs, and those who may not because they are burdened with an injury in addition to unemployment. Thus, the employer was not entitled to a credit for the claimant’s FPUC benefits.
Affirmed
SPECIFIC LOSS BENEFITS
Barbara Daquilante v. Mercy Catholic Medical Center (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 18, 2022
Issue:
Whether the limitation on recovery for disfigurement to disfigurement of the head, neck, and face violates the Remedies Clause and the equal protection principles of the Pennsylvania Constitution?
Background:
Claimant sustained a work injury when she was hit by a truck during the course of her employment with Employer. Claimant filed a claim petition alleging that she had sustained severe scarring of both legs as of August 20, 2012. Employer moved to dismiss the second claim petition because the Act does not authorize specific loss benefits for disfigurement of the legs. By decision and order, the WCJ denied the second claim petition, concluding that the scarring of Claimant’s legs was not compensable. By opinion and order, the Board affirmed.
Holding:
Section 306(c)(22)’s limitation of recovery does not violate the Remedies Clause. Section 306(c)(22) provides for benefits for “serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment.” Article III, Section 18 of the Pennsylvania Constitution expressly authorizes the legislature to limit the remedies available to workers’ compensation claimants, effectively carving out an exception to the Remedies Clause. Such a reading does not deny a claimant the ability to seek total or partial disability benefits for disfigurement of the legs as measured by loss of earning power, it simply does not treat disfigurements to the legs on par with the serious disfigurement to the head, neck, and face as set forth in Section 306(c)(2). Further, Section 306(c)(22) does not violate the equal protection provisions of the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Pennsylvania Constitution. The Act confers a social welfare benefit on injured workers and a statutory classification thereunder is consistent with equal protection if it meets the rational basis test. The test is met here because cost containment for workers’ compensation benefits is a legitimate state interest. Employers benefit from not having to pay specific loss benefits for some injuries or higher insurance rates for conditions not included in specific loss provisions, so they can be more competitive. Furthermore, it is possible that the legislature believed disfigurement above the neck to create a greater impediment to employment because it may not be as inconspicuously covered by clothing as injuries below the neck. Whether this is inequitable is a question for the General Assembly, not the Court.
Affirmed
Reed Shaffer Const. and Donegal Mutual Ins. Co. v. Glynn Smith (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 6, 2022
Issue:
Whether the work injury was limited to a specific loss?
Background:
Claimant sustained lacerations to his right middle, ring, and small fingers during the course and scope of his employment with Employer as a full-time carpenter. Employer issued a Notice of Temporary Compensation Payable acknowledging the injury as laceration cut, scratches, abrasions, superficial wounds, calluses, wound by tearing, and began paying Claimant wage loss benefits. Employer later filed the Suspension Petition, alleging that, since Claimant suffered specific loss of use of only 50% of his right third, fourth, and fifth fingers, without any injuries or disabilities separate and apart from those three injured digits, Employer was only responsible for paying 58 weeks of specific loss benefits. Employer has been paying Claimant total disability benefits, but filed the Suspension Petition asserting that, since Claimant’s work injury was limited to a specific loss his WC benefits must cease when the amount of benefits Employer has paid equals the amount to which Claimant would have been entitled for that specific loss.
Holding:
If a claimant suffers an injury that is separate and apart from a specific loss of a body part, that results in a loss of earning power, a claimant may receive compensation under Section 306(a) of the Act, or Section 306(b) of the Act, in addition to benefits for the specific loss of a body part. The WCJ concluded that the Employer failed to sustain its burden of proof in the context of its Suspension Petition based upon the credible testimony of Claimant as well as the accepted opinions and conclusions of Claimant’s expert, finding that there was an injury, separate and apart from the specific loss, that was causing disability. Employer’s appeal essentially is an attack on the WCJ’s credibility determinations. Because the WCJ’s credibility determinations were clearly supported by the record, the Court may not disturb them.
Affirmed
COMPROMISE AND RELEASE
Jesse R. May v. Dana Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 21, 2022
Issue:
Whether the C&R Agreements should be voided as a result of fraud, due to the alleged improper use of the 2015 IME, and Claimant was mistaken in his belief that they were not binding, and Employer would continue to remain liable for medical expenses in connection with his 1993 work-related injury?
Background:
Claimant proceeded pro se on petitions to review compensation benefits and to review medical treatment and/or billing. At all times relevant to the history surrounding these proceedings, Claimant was represented by his former counsel and, with the assistance of said counsel, executed four Compromise and Release (C&R) Agreements in 2003. The C&R Agreements were approved by a WCJ after the WCJ confirmed, at hearings and based on Claimant’s own credible testimony, that Claimant entered the agreements with full understanding of their terms, conditions, and legal significance.
Holding:
The WCJ issued a reasoned decision, supported by substantial evidence, and the WCJ did not otherwise commit an error of law in rendering his determinations. While the courts may rescind a C&R agreement based on a clear showing of fraud, deception, duress, or mutual mistake, the burden to make such a showing rests with the party seeking to set aside the agreement. The Court agreed with the Board that the WCJ issued a reasoned decision in rejecting Claimant’s testimony as not credible. More specifically, the WCJ determined that Claimant’s current testimony was directly contradicted by the transcript of the 2003 hearing in which Claimant credibly testified that he understood the full legal significance of the C&R Agreements, and, also, the plain language of the C&R Agreements themselves. Moreover, for essentially the same reasons, the WCJ found that Claimant failed to adduce credible evidence establishing that the C&R Agreements should be set aside due to fraud, duress, or deception, or that the parties committed a mutual mistake of fact. In short, the WCJ’s findings in these regards rested solely upon the WCJ’s determination that Claimant’s testimony was not credible. And, because this Court has no basis upon which to disturb the WCJ’s credibility determination, we cannot conclude that the WCJ erred in failing to set aside the C&R Agreements.
Affirmed
TERMINATION PETITION
William Tobin v. Upper Darby Police Department (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided July 29, 2022
Issues:
Whether the current WCJ improperly disregarded the findings made in an earlier proceeding by a different WCJ; Whether the current WCJ’s findings are supported by substantial and competent medical evidence; and Whether the current WCJ failed to apply the correct standard for terminating benefits under the Workers’ Compensation Act (Act).
Background:
Claimant sustained a work injury while employed as a police officer for the Employer. Employer accepted liability for the injury through issuance of a Notice of Compensation Payable (NCP), which described the work injury as a lumbosacral sprain and strain and a contusion of the right knee. Based on the results of a 2013 independent medical examination (IME), Employer filed a petition to terminate Claimant’s benefits, alleging he had fully recovered from his work injury. That WCJ denied Employer’s termination petition. Employer filed a second termination petition in 2016. Claimant denied Employer’s allegations and filed a review petition requesting an amendment to the description of his work injury. The WCJ granted Employer’s second termination petition and denied Claimant’s review petition. Based on her credibility determinations, the WCJ concluded that Employer met its burden of proving that Claimant had fully recovered from his June 13, 2012 work injury. Regarding Claimant’s review petition, the WCJ determined that Claimant was precluded from relitigating the description of his work injury by the doctrines of res judicata and collateral estoppel. On appeal, the Court found that the WCJ erred in concluding that Claimant was precluded from seeking an amendment to the description of his work injury, as that issue was never raised in the termination proceedings before the first WCJ, who was only required to determine whether Claimant had fully recovered from his work injury. However, the Court found that the first WCJ did not expand the description of Claimant’s work injury when he credited various opinions that Claimant had not fully recovered. The Court remanded the matter for a determination on the proper description of Claimant’s work injury, followed by a new consideration of Employer’s second termination petition. Following remand, the WCJ issued a decision denying Claimant’s review petition and granting Employer’s termination petition.
Holding:
The WCJ has exclusive authority to act as factfinder, determine the credibility of witnesses, and weigh the evidence, and the WCJ’s findings will not be disturbed if they are supported by substantial, competent evidence. The second WCJ did not err in terminating Claimant’s benefits and she did not disregard the findings of fact made by the earlier WCJ in the first termination proceeding. Claimant’s argument that the earlier decision can only be read to have expanded the injury was rejected, as Claimant’s additional diagnoses were only referred to by the first WCJ when summarizing expert testimony, whose opinions were credible only insofar as they related to the work injury. Further the second WCJ did not ignore substantial, competent evidence that Claimant sustained more extensive injuries than those listed on the NCP. The second WCJ ultimately concluded that Claimant’s work injury to his lumbar spine was limited to a sprain and strain. Further she adequately explained her reason for doing so, which were supported by substantial evidence. Finally, the second WCJ applied the correct legal standard in granting Employer’s second termination petition. There was evidence demonstrating a change in his work-related condition from the date of the decision denying Employer’s first termination petition. The claimant had a normal examination. Claimant advised Dr. McHugh that he no longer took prescription or over-the-counter medication to treat his lumbar symptoms. The record demonstrates the requisite change in Claimant’s condition from the date the first WCJ denied the first termination petition. Employer presented evidence that sufficiently demonstrated a change in Claimant’s physical condition from the denial of the first termination petition.
Affirmed
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
7/1/2022-7/31/2022
STATUTE OF LIMITATIONS
Servais v. Ocean Wholesale Nursery, LLC
Superior Court of New Jersey, Appellate Division
No. A-2988-20; 2022 WL 2720434
Decided: 7/14/2022
Background:
Petitioner/Appellee Donald Servais worked as a nursery manager for 5 years. On January 31, 2017 he and Ocean Wholesale Nursery (the Nursery) entered into an Agreement for $5,000 “in full and complete satisfaction of any and all of his actual and potential claims against the [Nursery].” The Agreement also stated that the consideration would constitute the entire amount of consideration provided to him under the Agreement, and petitioner would not seek any further compensation for and damages, costs, disbursement, or attorney fees in connection with any of the matters encompassed by the Agreement. The Agreement also released the Nursery from any and all actual or potential claims known or unknown which may have arisen or may arise before the date petitioner signed the Agreement.
On October 17, 2018, petitioner filed an employee claim petition, alleging that he had amputated three fingers on his right hand while cutting pallets on January 26, 2016, over 2 years and 8 months prior. On January 18, 2019, the Nursery moved to dismiss the petition, arguing that petitioner failed to file a claim within the 2 year statutory period. Petitioner argued his claim was timely because it was within 2 years of executing the Agreement, and the Agreement was ambiguous in whether the payment was also a partial payment for his work injury.
The judge of compensation conducted a 4 day hearing instead of reviewing the Agreement and making a finding about its ambiguity. The compensation judge denied the Nursery’s motion. The judge concluded he could “only assume” the Agreement included all claims, including the loss of petitioner’s finger, and also held that the $5,000 payment extended the statute of limitations. The parties then proceeded to trial, after which the judge held that petitioner suffered a permanent disability and awarded him $75,000. The judge also found that the $5,000 paid under the Agreement included $1,000 for the loss of petitioner’s fingers, and provided no explanation and factual support for that finding.
The Nursey moved for a stay of judgment pending appeal. The Nursery argues the compensation judge erred by: 1) mischaracterizing the $5,000 separation payment as a workers’ compensation payment; 2) violating their due process rights by determining the petitioner was an employee and not an independent contractor and he had been injured in the course of his employment without holding a trial on these issues; and 3) arbitrarily dividing the $5,000 payment into a $4,000 separation payment and $1,000 work injury payment.
Holding:
The court held that when reviewing the Agreement de novo, there is no ambiguity and the plain language of the Agreement expressly excluded petitioner’s workers’ compensation claim. Additionally, the court held that the judge erred in conducting a 4 day hearing before deciding if the Agreement was ambiguous, and subsequently erred in finding the Agreement was ambiguous after the hearing.
The court further held that a judge cannot assume an agreement includes all claims when it expressly excludes some claims, and the finding that $1,000 of the $5,000 payment was payment for the loss of fingers had no basis in the record. Under the Agreement, petitioner expressly reserved his right to file a workers’ compensation claim, but he just did not do so in a timely manner.
The court held that the Agreement was not ambiguous, and it clearly excluded workers’ compensation claims, therefore the $5,000 payment was not related to any work-related injury and did not toll the two-year statute of limitations.
Reversed and Vacated
LATE NOTICE – EXTRAORDINARY CIRCUMSTANCES
Ugaz v. County of Hudson, et al.
Superior Court of New Jersey, Appellate Division
No. A-2671-20; 2022 WL 2838825
Decided: 07/21/2022
Background:
Plaintiff was employed as a corrections officer at the Hudson County Correctional Facility when he tested positive for COVID-19 on March 25, 2020. Plaintiff was in the hospital for 10 days, where he advised staff that he had been indirectly exposed at work to a person who later tested positive for COVID-19. He was released from the hospital on April 4, 2020.
Plaintiff filed a notice of tort claim on December 31, 2020 and moved for leave to file a late notice in March 2021. The motion for leave to file a late claim included a certification from the plaintiff stating he retained an attorney in May 2020 to pursue workers’ compensation benefits and learned in December 2020 that the family of another officer was pursuing litigation against the county, and it was then he had a basis to believe that his illness was due to the fault of another. The trial court granted the motion on April 27, 2021.
The trial court accepted plaintiff’s certification in combination with the ongoing public health crisis that the statutory threshold for permitting late notice of claim was met. On appeal, defendants assert the court abused its discretion in finding extraordinary circumstances existed to allow plaintiff to file a late notice of tort claim.
Holding:
The court stated that a trial court may grant a motion for leave to file a late notice if there are “sufficient reasons constituting extraordinary circumstances” for the failure to timely file a notice of claim within the 90 day statutory period. Furthermore, the Legislature intended the “extraordinary circumstances” to be a demanding standard.
The court distinguished several cases where the extraordinary circumstances standard was met, and distinguished the instant case stating that plaintiff did not present any facts to demonstrate a situation so ‘severe, debilitating, or uncommon’ that would prevent him from contacting an attorney and pursuing a claim. The court found that on the contrary, plaintiff was aware that he contracted COVID-19 at work and retained counsel in May 2020 to procure workers’ compensation benefits.
The court held that the instant circumstances did not meet the threshold for permittance of a late notice, and his conduct in the 90 days following his diagnosis confirms he could have contacted an attorney. The court held that the trial court misapprehended the applicable law by finding there were sufficient reasons to permit the late filing, as the statute and caselaw require sufficient reasons constituting extraordinary circumstances, which do not exist in this matter.
Reversed
Waddell v. County of Hudson, et al.
Superior Court of New Jersey, Appellate Division
No. A-2661-20; 2022 WL 2838829
Decided: 7/21/2022
Background:
Bernard Waddell contracted COVID-19 in March 2020, while working as a corrections officer in the Hudson County Correctional Center. He died on April 1, 2020. Plaintiffs filed a notice of tort claim in November 2020 and moved for leave to file a late notice in March 2021. Bernard’s wife, Sheliah, presented a certification stating that Bernard’s death certificate confirmed he died of viral pneumonia secondary to COVID-19, and that from mid-April until the end of May 2020, her son was sick with COVID-19, and she was grieving the death of her husband. She further certified that she did not consider that her husband’s death might have been due to the fault of another until later, and she retained counsel in October 2020.
The defendants presented a certification from a claims analyst for the third-party administrator of the County, which stated that he opened a workers’ compensation claim for Bernard on April 2, 2020 and he had communicated with Sheliah in July regarding her husband’s compensation claim and advised her that his timecard revealed he was exposed to co-workers and inmates who tested positive for COVID-19. Sheliah received reimbursement for funeral expenses as well as dependency benefits. Defendants also presented a certification from an employee of the County Finance Department, which stated that she assisted Sheliah in May 2020 and for several months following helping her to obtain several types of benefits available, including the federal Public Safety Officers’ Benefit Program.
The court granted plaintiff’s motion, stating that they accepted her certification in combination with the ongoing public health crisis as proof that sufficient reasons were shown for failure to timely file the notice of tort claim. Defendants appealed, asserting that the court abused its discretion in finding extraordinary circumstances existed to permit plaintiffs to file a late notice of tort claim.
Holding:
The court stated that a trial court may grant a motion for leave to file a late notice if there are “sufficient reasons constituting extraordinary circumstances” for the failure to timely file a notice of claim within the 90 day statutory period. Furthermore, the Legislature intended the “extraordinary circumstances” to be a demanding standard.
The court distinguished several cases where the extraordinary circumstances standard was met, and distinguished the instant case stating that plaintiff did not present any facts to demonstrate a situation so ‘severe, debilitating, or uncommon’ that would prevent her from contacting an attorney and pursuing a claim. The court stated that she was not incapacitated, confined to a hospital, or under a mental impairment as seen in other cases, and though her son was sick, she did not say he was hospitalized or gravely ill.
The court stated in the weeks following her husband’s death, Sheliah had contact with county employees and workers’ compensation claims representatives regarding potential benefits related to her husband’s death and she was aware he was exposed to COVID-19 while working for the county, which led to his death.
The court held that the instant circumstances did not meet the threshold for permittance of a late notice, and in the 90 days following her husband’s death Sheliah could have contacted an attorney from her home, as she eventually did. The court held that the trial court misapprehended the applicable law by finding there were sufficient reasons to permit the late filing, as the statute and caselaw require sufficient reasons constituting extraordinary circumstances, which do not exist in this matter.
Reversed