PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
8/01/2022 – 8/30/2022
SUBPOENA ENFORCEMENT
Jo Jo Pizza and Eastern Alliance Ins. Co. v. Larry Pitt & Associates
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 5, 2022
Issues:
Whether the WCJ lacked subject matter jurisdiction to address Employer’s petitions and issue the subpoena because the benefits portion of the workers’ compensation matter concluded years earlier when the parties completed the C&R? Whether the WCJ, an officer of the executive branch, violated separation of powers principles by allegedly seeking a contempt order in the trial court against Attorney Pitt?
Background:
Claimant slipped and fell on ice in Employer’s parking lot. Attorney Pitt filed a workers’ compensation claim petition on her behalf as well as a third-party premises liability action in the trial court against the owner of the property where Employer is located. The claim petition was granted. Subsequently, the WCJ approved a compromise and release agreement (C&R) between the parties that resolved Claimant’s medical and wage loss claims. The C&R recognized Employer’s full right to subrogation. Employer declined to reduce its lien and in anticipation of the risks of a trial, Claimant and Attorney Pitt signed a new fee agreement increasing Attorney Pitt’s fee to 50% of any recovery in tort. The third-party action ultimately resolved. Employer, suspicious that Attorney Pitt improperly diverted amounts from his attorneys’ fees to Claimant that should have been subject to Employer’s subrogation lien, filed review and modification petitions with the WCJ. In association with these petitions, Employer issued a subpoena, approved by the WCJ, which asked Attorney Pitt to produce copies of all fee agreements between himself and Claimant, releases, distribution sheets, and copies of any checks issued by Attorney Pitt to Claimant. Attorney Pitt refused to respond to the subpoena or participate in proceedings, writing in a letter to the WCJ that there was no subject matter jurisdiction for Employer’s petitions as Claimant’s workers’ compensation matter had been fully and finally resolved by the C&R. Contempt proceedings were commenced in Common Pleas Court. On January 15, 2021, the trial court issued its order finding Attorney Pitt in civil contempt for willful noncompliance with Employer’s subpoena, ordering disclosure of the requested information, and awarding Employer attorneys’ fees and costs associated with its litigation of the civil contempt petition.
Holding:
The Act does not limit the WCJ’s jurisdictional authority over subrogation matters to instances where there remain open and active workers’ compensation matters before the WCJ. Moreover, claimants and their counsel may not manipulate attorneys’ fees in a manner that would negatively affect the employer’s subrogation lien. The WCJ did not err in accepting jurisdiction over Employer’s petitions or in issuing Employer’s subpoena, the intent of which was to ensure that Claimant and Attorney Pitt had not manipulated attorneys’ fees to thwart Employer’s right to the fullest possible satisfaction of its lien, particularly in light of Attorney Pitt’s concession, on the record, that Claimant had received “some” money from the third-party settlement, and this amount was not reflected in Mr. Pitt’s distribution letter. Employer declined to compromise its lien prior to settlement of the third-party case, and it did not concede its right to receive the full amount of its lien. Further, Employer’s right to seek enforcement of the full extent of its lien by a WCJ was not extinguished when Employer resolved Claimant’s benefits via a C&R. By extension, the trial court did not err or abuse its discretion in granting Employer’s petition for civil contempt against Attorney Pitt for his failure to comply with the subpoena. The WCJ did not violate separation of powers principles and the trial court did not err or abuse its discretion in agreeing with the WCJ on this issue. Further, the record does not support Attorney Pitt’s argument that the WCJ ordered Employer to commence subpoena enforcement proceedings in the trial court. The mere fact that the WCJ advised both parties of Employer’s right to pursue such proceedings, up to and including Employer’s petition for civil contempt against Attorney Pitt, does not mean that the WCJ thwarted or intervened in the Supreme Court’s role in governing the state courts and practicing attorneys.
Affirmed.
NOTICE OF A WOK INJURY
Kelly Twaroski v. BASF Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 30, 2022
Issue:
Whether the WCJ misinterpreted and misapplied the discovery rule under the Act?
Background:
On February 13, 2020, Claimant filed a claim petition asserting that he suffered a work-related injury described as cervical myelopathy on July 14, 2019, when he ran into a pipe overhead and jerked his neck backwards. Claimant continued working and the pain “pretty much went away and he felt fine.” Claimant finished the work week but noticed his fingertips “felt tingly.” The plant then shut down for a week, and Claimant continued to feel intermittent tingling in his fingertips. When the plant reopened, Claimant stated he returned to work and noticed more intense tingling in his fingers. Claimant told his supervisor about the issue with his hands and that he could not come in to work because he could not perform his job. Claimant admitted that he did not report the July 14, 2019 incident to his supervisor at this time because he did not have continuing neck pain and did not think it was related to the issue he was experiencing with his hands. The WCJ issued a decision and order dismissing Claimant’s claim petition due to Claimant’s failure to timely notify Employer of the existence of a work-related incident within 120 days of July 14, 2019. The Board affirmed the WCJ’s decision on appeal noting that the Claimant had a specific incident on the date of injury that caused him neck pain. This incident triggered the 120-day notice requirement, with which Claimant failed to comply.
Holding:
The WCJ neither erred nor misapplied the discovery rule of Section 311 of the Act; rather, it simply did not apply in this case. Under Section 311 of the Act, unless notice is given within 120 days after the occurrence of the injury, no compensation shall be allowed. Section 311’s 120-day notice period includes the ‘discovery rule.’ In order to trigger the running of the 120-day period for notice, a claimant must have: (1) knowledge or constructive knowledge, (2) of a disability, (3) which exists, (4) which results from an occupational disease or injury, and (5) which has a possible relationship to the employment. Substantial evidence of record, i.e., Claimant’s own testimony, supports the WCJ’s finding that Claimant failed to give timely notice of his alleged work-related injury. Specifically, Claimant credibly testified that he injured himself at work on July 14, 2019, and that he immediately experienced pain afterwards, but he “just basically shook it off,” continued working, and did not tell Employer. Thus, Claimant knew in that moment that he had injured his neck and that the injury was related to his employment; he simply did not know the possible extent of that injury. While he told his Employer his hands were hurting following the plant shutdown and that he went out of work on August 18, 2019 and did not return due to him receiving carpal tunnel surgery, he never related this condition and surgery to any work injury or incident at work. He did not submit a claim petition until February 13, 2020, which was outside of the 120-day period allowed by the Act. The WCJ found that on July 14, 2019 Claimant knew, or should have known, that this injury was related, or possibly was related, to his employment. The notice provisions of Section 311 are mandatory.
Affirmed.
JUDICIAL DISCRETION
Elbert L. Hatten, Jr. v. J.B. Hunt Transport Services, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 1, 2022
Issue:
Whether the WCJ’ s findings were arbitrary and capricious?
Background:
Claimant operated a tractor trailer and delivered freight for Employer. Claimant was injured when he fell from the step board of Employer’s truck and landed on his buttocks. Ultimately, Employer accepted injuries to Claimant’s lumbar and/or sacral vertebrae and commenced payment of weekly indemnity benefits. Based on the results of an independent medical examination (IME), Employer filed a Termination Petition, alleging that Claimant had fully recovered from his injuries. Prior to addressing Employer’s Termination Petition, the WCJ recognized that Claimant sought to expand the description of his work injury to include four additional injuries. The WCJ accepted Claimant’s expert’s diagnosis for two of the diagnoses but did not find credible evidence of the other two. Thus, the WCJ expanded the description of Claimant’s work injury but not to the extent sought by Claimant. Nevertheless, because the WCJ specifically found Claimant’s testimony of an ongoing work injury credible and persuasive, the WCJ denied the Termination Petition.
Holding:
It is well settled that the WCJ is the factfinder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Where both parties present evidence, it is irrelevant that the record contains evidence which supports a finding contrary to that made by the WCJ; rather, the pertinent inquiry is whether evidence exists that supports the WCJ’s findings. The Court may not reweigh the evidence or the WCJ’s credibility determinations. The Court may overturn a credibility determination only if it is arbitrary and capricious, so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational. A party seeking to amend an NCP has the burden of proving that the NCP is materially incorrect. In this case, the WCJ set forth the evidence from both parties in neutral fashion, then issued several findings based on that evidence. The WCJ did not credit some of the expert’s diagnoses. This is the prerogative of the factfinder. Because there is substantial evidence of record supporting the WCJ’s findings, and because Employer is entitled to the benefit of all favorable inferences drawn from the evidence, the WCJ’s findings are neither arbitrary nor capricious, and may not be reweighed or disturbed.
Affirmed.
OBLIGATION FOR REASONABLE MEDICAL SERVICES
Ralph Martin Constr. & Lackawanna American Ins. Co. V. Miguel Castaneda-Escobar (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided August 1, 2022
Issue:
Whether the Board erred in requiring Employer to pay for home modifications that were never done?
Background:
Claimant fell off a roof and injured his cervical spine, thereby rendering him a paraplegic. Employer accepted liability for the injury in a Notice of Compensation Payable. In 2011, a design and construction firm estimated that it would cost $119,722.21 to modify the claimant’s residence, the Reading Home, to accommodate his work injury. The design firm observed that it might be more cost effective for Claimant to relocate to a single-floor residence with wheelchair accessibility. In 2013, Employer’s consultant stated that modifying the Reading Home would not be the best long-term solution for Claimant due to the fact that he does not own the home, the unknown duration of his stay in this home and the limited options for modifications. In 2018, Claimant bought a home, the Leesport Home, for $230,000 for which he incurred closing costs of $4,158. This Leesport Home accommodated Claimant’s needs, however, the shower in the master bathroom had to be modified to provide wheelchair accessibility. Employer reimbursed Claimant for the $5,905.04 Claimant spent to modify this bathroom. Claimant did not testify to explain his decision to purchase a home. Employer filed a Medical Review Petition, asserting that Claimant’s purchase of the Leesport Home was not a reimbursable medical expense under Section 306(f.1)(1)(ii) of the Act. Because the modification to the Reading house, where Claimant resided at the time of his injury, was projected to cost $119,722.21, the Board, reversed the WCJ and held that Employer was required to contribute that amount towards Claimant’s purchase of a one-story home that required few modifications.
Holding:
The term “orthopedic appliances” has been construed to cover the construction of home modifications, where necessary to allow the claimant to use the orthopedic appliances and prostheses. The particular circumstances of the claimant must be considered in determining the precise obligation of the employer. At the time of injury, Claimant resided in the Reading Home, which required modifications projected to cost $119,722.21. Before any work was done, Claimant purchased the Leesport Home. Nonetheless, Claimant continues to seek “reimbursement” of the $119,722.21 that was never spent on the Reading Home. Claimant’s wheelchair is clearly an orthopedic appliance, and precedent has established that home modifications to make the wheelchair useful to Claimant are Employer’s responsibility. However, there is no precedent under the Act that has established that an employer can be held liable to purchase an entire house for a claimant or to pay for modifications that were never undertaken. Here, there is no record evidence to support a finding that Claimant needed to own his own home in order to facilitate the use of his wheelchair. On the other hand, a structural renovation to Claimant’s new home was a necessity, and Employer promptly paid for the shower modification in Claimant’s bathroom. There is no evidence that Claimant has presented Employer with any additional invoices for renovations to the Leesport Home. Claimant’s consultants determined that $119,722.21 was required to remodel the Reading Home to make it accessible for Claimant, but this amount did not become Claimant’s baseline entitlement, as suggested by the Board. Further, Claimant did not incur any costs to modify the Reading Home. Nor was the estimate of $119,722.21 adjudicated as reasonable. Notably, the Reading Home had unique challenges due to its age and construction that contributed to the estimated cost of $119,722.21. Claimant purchased a home that was generally accessible to Claimant, with the exception of the bathroom. Employer paid for that modification, and this fulfilled Employer’s obligation under Section 306(f.1)(1)(ii) of the Act. If Claimant had not been willing, or not been able, to move from the old home, some modification would have been required. The extent of that modification would have required a weighing of the remedial purposes of the Act against the need to avoid windfalls to Claimant. This analysis was never undertaken. Further, there is no evidence that the purchase of a new house, as opposed to some other living arrangement, was essential to Claimant’s medical treatment. Section 306(f.1)(1)(ii) of the Act did not authorize the Board to order Employer to pay Claimant $113,817.17 for home modifications never done or to contribute to the purchase of a new home. We affirm the Board’s holding that Employer was not liable for Claimant’s closing costs for the new home.
Affirmed in part and Reversed in part.
IMPAIRMENT RATING EVALUATION
Halsted Communications, LTD v. WCAB (Miller)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 16, 2022
Issue:
Whether the Board erred in affirming the WCJ’s decision because Claimant failed to present medical evidence of ongoing total disability to support the grant of his Reinstatement Petition?
Background:
Claimant sustained work-related injuries while in the course and scope of his employment as a TV technician for Employer. In 2012, via a Notice of Change of Workers’ Compensation Disability Status (Notice of Change), Claimant’s WC benefits were modified to partial disability benefits based on an impairment rating evaluation (IRE) which found that Claimant had a 19% whole body impairment rating. This Notice of Change was not challenged. In 2019, Claimant filed the Reinstatement Petition, alleging that his WC benefits should be reinstated as of the date of the IRE based on the PA Supreme Court’s decision Protz II, finding the former provision of the Act authorizing IREs was unconstitutional. The WCJ granted Claimant’s Reinstatement Petition, as of the date of the filing of the Reinstatement Petition. The Appeal Board affirmed.
Holding:
The WCJ accepted Claimant’s testimony that he continues to be disabled from his work-related back and foot injuries. He also noted that employer’s expert agreed that Claimant continues to have an impairment from his back condition. Employer accepted, pursuant to an NCP, that Claimant suffered compensable work-related injuries to his left foot, low back, and ribs fracture. Claimant clearly testified that these accepted injuries prevented him from performing the duties of his pre-injury position with Employer. Employer’s medical expert was found to be credible to the extent that it corroborated Claimant’s testimony that his recognized work-related injuries continue. As a result, the WCJ did not err in granting Claimant’s Reinstatement Petition and directing that he receives total disability benefits effective as of the date that he filed the Reinstatement Petition. The Court further held that the Employer is not entitled to a credit under Section 306(a.3) for payments made under an unconstitutional IRE that was conducted six years prior to its enactment, and the Board did not err in affirming the WCJ’s decision in this regard. Rather, Employer may vindicate its right to a credit in a subsequent, new IRE proceeding under Section 306(a.3) of the Act.
Affirmed.
James Gilbert v. Albert Einstein Medical Center (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 16, 2022
Issues:
Whether Protz II must be given full retroactive effect, rendering all IREs performed pursuant to Section 306(a.2) of the Act, and all the legal effects therefrom, void ab initio?
Background:
Claimant suffered an injury in the course and scope of his employment. Employer issued a Notice of Compensation Payable that described Claimant’s work injury as a right cervical strain for which Employer paid Claimant TTD benefits. In 2006 an IRE determined that Claimant had reached maximum medical improvement from his work injury and had a corresponding 35% whole-body impairment rating. In a 2007 Supplemental Agreement, Employer and Claimant agreed that Claimant’s work injury benefit status changed from TTD to temporary partial disability (TPD) based upon the 2006 IRE. In 2017, Claimant filed the Modification Petition alleging that Claimant’s WC benefit status should be modified from TPD to TTD as of the effective date of the change in Claimant’s WC benefit status as set forth in the Supplemental Agreement. Claimant also filed a Reinstatement Petition alleging that Claimant’s TTD benefit status should be reinstated as of January 12, 2016, the day after Claimant’s 500 weeks of TPD benefits ended. The WCJ granted Claimant’s Reinstatement Petition effective November 10, 2017, the date Claimant filed his Reinstatement Petition, and denied Claimant’s Modification Petition. The Board affirmed.
Holding:
Neither the WCJ nor the Board erred as a matter of law by relying on the holdings in Whitfield and Dana Holding Corp., and reinstating Claimant’s WC benefits to TTD status as of the date that he filed his Reinstatement Petition, rather than reinstating him to TTD status as of June 15, 2006, the effective date of the unconstitutional IRE. Claimant filed his Reinstatement Petition well over the three years afforded by Section 413(a) of the Act. Because Claimant had not sought reinstatement of his TTD status within the three years provided by Section 413(a) of the Act, and because his challenge was not preserved in active litigation at the time Protz II was decided, Claimant is not entitled to relief.
Affirmed.
Tyvia Robinson v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 16, 2022
Issues:
Whether Act 111 is unconstitutional when retroactively applied to work injuries sustained before its enactment?
Background:
Claimant sustained a work-related injury in the nature of a right thumb contusion when a door closed on her thumb in the course of her employment with Employer. The injury was recognized by Employer via a Notice of Compensation Payable. On February 7, 2020, Claimant underwent an IRE performed by Lynn W. Yang, D.O., using the American Medical Association Guides (AMA Guides). Dr. Yang opined Claimant had reached maximum medical improvement (MMI) and concluded Claimant’s Whole-Body Impairment (WBI) was 15%. Claimant had received at least 104 weeks of temporary total disability benefits. Employer filed the modification petition seeking to have Claimant’s benefits changed from temporary total disability to partial disability benefits. The WCJ granted Employer’s modification petition.
Holding:
Where the claimant sustained an injury prior to Act 111’s enactment, the retroactive application of Act 111 does not deprive the claimant of his vested right to workers’ compensation benefits. Moreover, the Claimant’s vested rights were not affected by Act 111 because “there are reasonable expectations under the Act that benefits may change.” Claimant’s IRE occurred after Act 111 was enacted, and thus, it did not constitute a retroactive application of the law. Moreover, Act 111 did not automatically change Claimant’s disability status or deprive her of vested rights, but instead, provided Employer with a way to pursue a change in Claimant’s disability status by requiring medical evidence that Claimant’s WBI was less than 35%.
Affirmed.
Kirk Wescoe v. Fedchem, LLC and SWIF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 16, 2022
Issue:
Whether Act 111 is unconstitutional when retroactively applied to work injuries sustained before its enactment?
Background:
In 2011, Claimant sustained a work-related injury to his lower back. Employer acknowledged the injury as a lower back strain in a notice of compensation payable, which was later amended to include an L4-5 disc herniation with radiculopathy. In 2019, Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 13% based upon an IRE examination, performed under the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) (second printing April 2009). The WCJ concluded that Employer established that Claimant had a whole-body impairment of 13% and, therefore, granted Employer’s petition, modifying Claimant’s benefits to partial disability status effective the date of the IRE examination.
Holding:
This Court addressed the retroactive application of Act 111 on numerous occasions, holding that a vested right is one that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person’s consent. There are reasonable expectations under the Act that benefits may change. Thus, Act 111 did not deprive claimants of a vested right but simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole-body impairment of less than 35%, after receiving 104 weeks of [total temporary disability] benefits. Further, the General Assembly specified using clear language that employers/insurers were entitled to credit for the weeks of disability compensation paid to an injured employee prior to the passage of Act 111. The Board’s application of Act 111 in modifying Claimant’s benefits to partial disability status did not violate the Remedies Clause found in article I, section 11 of the Pennsylvania Constitution because Claimant does not have a vested right to workers’ compensation benefits. Thus, we affirm the Board’s adjudication.
Affirmed.
Robert Yeager v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 4, 2022
Issue:
Whether claimant’s temporary total disability benefits should be reinstated as of the date that the pre-Protz II IRE was performed, rather than as of the date that he filed his reinstatement petition?
Background:
Claimant sustained a work injury to his right knee. Employer accepted the injury as a “right knee sprain.” In 2013, Claimant underwent an Impairment Rating Evaluation (IRE) that found that Claimant had a 1% impairment. The parties stipulated to the modification of Claimant’s benefits to partial disability as of the date of the IRE. On September 14, 2017, Claimant filed a reinstatement petition based on the PA Supreme Court’s decision in Protz (Protz II). The WCJ found as fact that Claimant has never fully recovered from his work injury and he has never been physically able to return to his pre-injury job as an asphalt spreader. Therefore, the WCJ granted Claimant’s reinstatement petition, as of the filing date of the reinstatement petition.
Holding:
Claimant argued he has a vested property right to total disability benefits from 2013, when the IRE was rendered unconstitutional by Protz II and that the Remedies Clause in article I, section 11 of the Pennsylvania Constitution precludes retroactive legislation that altered his vested right to total disability benefits under the Act. The Court addressed the retroactive application of Protz II in Whitfield, where it held that the claimant, whose disability status was rendered invalid by Protz II, and who filed a reinstatement petition within three years of her last compensation payment, was entitled to reinstatement as of the date that she filed her reinstatement petition. A reinstatement of the claimant’s benefits was governed by Section 413(a) of the Act, requiring proof that the claimant’s disability continued. A claimant need not produce medical testimony to satisfy his burden of proof as his own credited testimony will suffice. The Court has repeatedly affirmed that a claimant’s reinstatement of total disability benefits is effective as of the date that the reinstatement petition was filed, and not as of the date of the now-unconstitutional IRE under Protz I or Protz II. Here, Claimant satisfied his burden for reinstatement, based on his own testimony that he was totally disabled, as credited by the WCJ. Claimant’s reinstatement was properly granted as of the date that Claimant filed for reinstatement in 2017.
Affirmed.
PENALTY PETITION
Frank Hughes v. Wawa, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Disposition
Decided August 8, 2022
Issues:
Whether the WCJ’s denial of the penalty petition was the result of capricious disregard of undisputed evidence of a violation of the Act?
Background:
Claimant sustained a work-related injury while working as a truck driver for Employer. In 2011, the parties entered into a Compromise and Release (C&R) Agreement approved by the WCJ resolving wage loss benefits. The medical portion of Claimant’s claim remained open. In 2018, Employer filed two Utilization Review (UR) requests to determine whether certain prescriptions were reasonable and necessary. The WCJ found that Employer had met its burden of proof and that a reduction of the prescriptions was necessary as to the providers. Claimant filed a penalty petition, alleging that Employer failed to pay for necessary medical treatment in violation of the Act. The WCJ denied and dismissed Claimant’s penalty petition. The WCJ found that Claimant had not met his burden of proving a violation of the Act. The Board affirmed the WCJ’s decision in its entirety.
Holding:
The WCJ did not capriciously disregard any evidence. The standard of capricious disregard requires an examination of whether the WCJ willfully and deliberately disregarded competent testimony and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result. Claimant had the burden of establishing a violation. A conclusory Affidavit from provider attesting that the bills were “properly submitted,” was not determinative of whether Employer violated the Act. There was no evidence that provider’s bills were properly submitted with the required medical reports in accordance with the Act. To the contrary, the record demonstrated that there were no supporting medical notes, or diagnosis, or description of treatment or any other explanation of the dosages that would enable Employer/insurer to assess the reasonableness or necessity of the treatment. Moreover, providers that treat injured employees are required to submit the required medical reports within 10 days of commencing treatment and at least once a month thereafter as long as treatment continues. The only documents provided to Employer were the Health Insurance Claim Forms, which contained a mere summary of the dates and dosages and which are all dated after the penalty petition was filed. Employer had no factual basis upon which to confirm or deny causation or the reasonableness and necessity of the underlying treatment represented by these bills or to decide whether it had a valid basis upon which to seek a UR. Employer was not required to pay for this treatment.
Affirmed.
UTILIZATION REVIEW
Hulda Gillot v. Visiting Nurse Assoc. of Greater Phila. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 30, 2022
Issues:
- Whether the Employer’s UR requests were untimely because they were filed nearly two years after liability was established via a medical-only NTCP; and 2. Whether the Employer did not meet its burden of proving claimant’s palliative medical treatment was unreasonable and unnecessary?
Background:
In 2016, Claimant sustained an injury while working for Employer. Claimant filed a claim petition alleging that she sustained multiple injuries at work, resulting in disability. The next day, Employer issued a medical-only notice of temporary compensation payable (NTCP) acknowledging that a work injury occurred but disputing that it caused disability. A WCJ granted Claimant’s claim petition, adding to the originally accepted injuries. Within 30 days of the decision, the Employer filed UR requests to determine if Claimant’s treatments from five providers were reasonable and necessary. The UR determinations where not entirely in the providers’ favors. Claimant filed a petition for review of the UR determinations. Following review, the WCJ found Claimant’s testimony not credible regarding the reasonableness and necessity of her treatment. The Appeal Board affirmed.
Holding:
Claimant’s contention that the UR requests Employer filed after the decision granting the claim petition in 2018, were timely for challenging the treatment from 2016 forward had no merit. There was no proof that the Employer was required to file for UR prior to the granting of the claim petition. Importantly, the record did not establish the nature of the injury that was accepted in the 2016 medical only NTCP, because the document was never submitted. Based on the fact that Claimant filed a claim petition, it is not clear if she professed to have suffered from injuries not encompassed in the NTCP. Undoubtedly, Employer was contesting liability for at least some of Claimant’s injuries or she would not have needed to file a claim petition. Claimant’s argument that Employer’s UR requests were untimely because it was obligated to challenge her medical treatments because they were accepted by the 2016 medical only NTCP is not based on any evidence of record. As such, Claimant’s first contention of error is meritless. As to the second issue, while treatment may be reasonable and necessary even if it is designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition, there is no requirement that the employer raise the issue of palliative care. When evidence is presented that the treatment is palliative in nature, the employer merely bears the burden of refuting it. Before the WCJ, Claimant testified that some of her treatments were palliative in nature. However, the WCJ found her testimony not credible. The WCJ also found there was no evidence that the treatments helped Claimant’s work-related conditions or symptoms. The WCJ noted that when Claimant missed a treatment, there did not appear to be a worsening in her condition. Provider also indicated that some of his treatments were used to decrease Claimant’s pain, however, the WCJ rejected these opinions as not credible. Lack of progress in pain improvement is a factor that the WCJ may consider in making the factual determination of whether palliative care is reasonable and necessary. Thus, the WCJ was free to determine that the palliative treatments for Claimant’s pain did not effectively improve her symptoms.
Affirmed.
SUSPENSION PETITION
Hi-Tech Flooring, Inc. v. WCAB (Santucci)
Commonwealth Court of Pennsylvania – Published Opinion
Decided August 9, 2022
Issue:
Whether the Employer had shown by a totality of the circumstances that Claimant had chosen not to return to the workforce?
Background:
Claimant, a tile setter, has been a Union member since 1985. In 2014, Claimant sustained a work-related injury in the form of a right knee contusion. Thereafter, Employer issued a Notice of Temporary Compensation Payable accepting the work injury. In 2018 Employer filed a Suspension Petition, alleging that Claimant had voluntarily left the workforce by accepting a pension from the Union in 2017, and receiving SSD benefits for physical injuries or conditions beyond the work-related right knee injury. The WCJ agreed with the Employer and granted the suspension. The Board determined that the WCJ erred in finding that Employer had shown, by a totality of the circumstances, that Claimant had chosen not to return to the workforce. Accordingly, the Board reversed the WCJ’s grant of Employer’s Suspension Petition.
Holding:
An employer bears the burden of showing that a claimant has retired. The PA Supreme Court has rejected attempts to create a rebuttable presumption that a claimant has voluntarily retired from the entire workforce merely from the fact that a claimant has accepted some type of pension benefit. Claimant received the SSD benefits based, in part, on his work-related injury and lack of transferrable skills, which prevented Claimant from working. Therefore, Claimant’s receipt of SSD benefits in this matter suggests that Claimant’s work injury forced him out of the labor market. As to the Union disability pension, Claimant’s Union disability pension relates to the very position that the WCJ already found Claimant could not, and cannot, perform due to the work injury. That Claimant might have some other conditions that also affect his ability to perform that work does not eliminate the fact that Claimant’s unresolved work-related injury prevents him from doing so. Thus, Claimant’s receipt of a disability pension that is based on his total and permanent disability from his trade, a trade from which he is already disabled due to the work-related injury, does not speak to Claimant’s voluntary removal from the entire workforce. Claimant’s receipt of a disability pension shows that he could not perform the time-of-injury position; it does not necessarily follow that Claimant decided to forgo all employment. Moreover, the WCJ specifically found Claimant has not fully recovered from the work-related injury and is unable to return to his pre-injury position. Claimant here accepted a disability pension from the Union and SSD benefits, as opposed to age-based retirement benefits. Given this difference in the type of pension and SSD benefits in the present case, and in light of the above circumstances, precedent does not require a finding of removal from the workforce. Further, the totality of the circumstances shows Claimant did not look for other work because he did not know what other kind of work to look for. This does not evidence an intent to retire from the workforce but, rather, a lack of understanding what options may be available to Claimant to remain in the workforce. The totality of the circumstances in this case, including all relevant and credible evidence, do not support Employer’s assertion that Claimant voluntarily retired and left the workforce.
Affirmed.
COMPROMISE AND RELEASE AGREEMENTS
James Hymms v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided August 11, 2022
Issue:
Whether, at the time of the entry into the C&R, there was either a mutual mistake, or a unilateral mistake that converted into a mutual mistake, regarding the calculation of the lump sum payment contained in the C & R Agreement?
Background:
Claimant, who was represented by counsel entered into a C&R Agreement with the employer. The C&R Agreement stated that Claimant suffered a binaural hearing loss, and that the Agreement will resolve all claims for specific loss/hearing loss benefits for a lump sum payment of $34,000, minus counsel fees of $6,800, for a net total payment of $27,200. A telephonic hearing was held before the WCJ regarding approval of the C&R Agreement. Claimant testified that he read and signed the C&R Agreement, with consultation from Counsel. The WCJ had Claimant look at the C & R Agreement and asked if he understood that he was settling all of his rights to hearing loss benefits for a lump sum reflected therein, minus the amount to be paid to Counsel. Claimant was also asked if he understood that Employer would remain responsible for medical treatment for his hearing loss for one year, after which it would become Claimant’s responsibility. Claimant again responded “yes.” The WCJ then informed Claimant that once she approved the C&R Agreement, Claimant would not be able to come back to Workers’ Compensation for any money relating to this injury except for what was agreed to with the medical bills, even “if at some time in the future you believe you settled for too little money, it is still over when I approve it.” Claimant acknowledged this and affirmed that he still wanted to settle his case. The WCJ found that Claimant understood the full legal significance of the C&R Agreement and understood the effect it would have on future payments of compensation and medical expenses and approved it.
Holding:
Under the WC Act, settlement agreements are not valid or binding until approved by a WCJ. Further, the WCJ shall not approve any C&R agreement unless he first determines that the claimant understands the full legal significance of the agreement. Evidence demonstrating a mutual mistake must be clear, precise, and indubitable. However, if a party to a contract knows or has reason to know of a unilateral mistake by the other party and the mistake, as well as the actual intent of the parties, is clearly shown, relief will be granted to the same extent as if a mutual mistake existed. There was no evidence of record supporting Claimant’s claim of mutual mistake. The C&R Agreement does not mention Claimant’s specialist or a formula, and Claimant’s specialist’s findings were not submitted into evidence before the WCJ. Moreover, at the hearing before the WCJ, Claimant testified that he understood he was agreeing to settle all of his rights to hearing loss benefits for a total lump sum payment of $34,000, minus attorney’s fees, and neither he nor his Counsel suggested that the payment was based on a formula. As such, the record and the C&R Agreement are devoid of any proof of a mutual mistake. Claimant did not meet his burden of proving Employer was also mistaken as to a present, material fact that existed at the time the C&R Agreement was executed.
Affirmed.
SPECIFIC LOSS
Joseph J. Trovato, Jr. v. Citizens Financial Group (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 29, 2022
Issue:
Whether the Board erred in reversing the WCJ’s Decision as the WCJ’s specific loss determination is supported by substantial evidence?
Background:
Claimant filed a Claim Petition in which he alleged that he sustained a work-related injury in the nature of a retinal detachment of the left eye during the course and scope of his employment with Employer as a Senior Project Manager/Vice President. Claimant sought specific loss benefits for his left eye. Claimant’s vision quickly deteriorated, such that, within very little time, he lost almost 75% of his vision. Claimant sought medical treatment and underwent surgery within days of the incident. Claimant denied ever experiencing sparks or bright lights in his left eye before the incident. Claimant acknowledged prior cataract surgeries for both eyes; the left eye surgery was in 2013. About a month after surgery, Claimant again noticed rapid deterioration of his vison. He underwent a second surgery. Following the second surgery, Claimant testified that there was not much change in the vision of his left eye. Without glasses, Claimant testified that his left eye vision is wavy and distorted. The WCJ found the testimony of Claimant to be credible but noted that Claimant’s credibility is not at issue because this case involves the issue of medical causation. The WCJ accepted the opinions of Claimant’s medical expert over Employer’s expert. The WCJ found that Claimant sustained a loss of use for all practical intents and purposes of his left eye and that the loss was causally related to the incident that occurred at work. The Board reversed the award of specific loss of sight benefits upon concluding that Claimant’s medical evidence was insufficient to meet the legal standard but affirmed in all other respects.
Holding:
The Board did not reweigh the evidence or render new credibility findings in reversing the award of specific loss benefits. The Board simply reviewed Claimant’s expert’s credible testimony in its entirety and determined it did not constitute substantial evidence as a matter of law to support a conclusion that Claimant had lost his left eye for all intents and purposes. When a claimant alleges specific loss and seeks benefits pursuant to Section 306(c) of the Workers’ Compensation Act (Act), he bears the burden of proving that he suffered a permanent loss of use of his injured body part. Where an eye has been injured but not destroyed, the test to determine whether compensation should be awarded is whether the eye was lost for all intents and purposes. Loss for all intents and purposes will be found where the injured eye does not contribute materially to the claimant’s vision in conjunction with the use of the uninjured eye. This “material contribution test” requires the factfinder to determine if the claimant’s vision is materially improved when using both eyes rather than the good eye alone, not just whether the claimant in fact has vision in the injured eye. Compensation may not be had if, using both eyes, the claimant can see better, in general, than by using the uninjured eye alone. Claimant’s expert offered no opinion as to whether the injured eye materially contributes to Claimant’s vision in conjunction with the uninjured eye and offered no opinion on whether Claimant’s vision is better when using both eyes than when using the uninjured eye alone.
Affirmed.
STATUTORY EMPLOYMENT
Ronald And Jill Oster, h/w v. Serfass Construction Company, Inc., et al.
Superior Court of Pennsylvania – Unpublished Memorandum Opinion
Decided August 17, 2022
Issue:
Whether the trial court erred as a matter of law in granting Serfass’ Motion for Summary Judgment based upon the statutory employer doctrine where genuine issues of material fact exist as to whether Serfass could establish the defense of a statutory employer at trial?
Background:
Ronald and Jill Oster (Appellants) appeal from two orders which respectively granted summary judgment in favor of Appellees in Appellants’ personal injury action. In 2016, Serfass and Tower entered a contract whereby Serfass provided general contracting for demolition of a building (the “Tower Building”) and construction of a new building in Allentown (generally, the “Tower Project”). Serfass employed several subcontractors during the project, including Duggan & Marcon, Inc. (“Duggan”) for whom Mr. Oster worked. In Fall 2016, two pairs of Serfass employees began chipping adhered brick off the neighboring Trifecta Building. In mid-November 2016, an excavator struck the Trifecta Building. As a result, on November 17, 2016, Serfass commissioned an engineer to inspect demolition activity along the west wall of the Tower Building and the interior and exterior faces of the east wall of the abutting Trifecta Building. The engineer concluded that there was no discernable effect on the adjoining Trifecta Building structure. On November 26, 2016, Mr. Oster and another Duggan employee took the place of one of the pairs of Serfass employees, picking up where they had left off chipping leftover Tower brick from the Trifecta Building. At some point that day, the chimney of the Trifecta Building unexpectedly collapsed while the Duggan and Serfass employees worked. As a result, multiple bricks fell and struck Mr. Oster in the head, neck, and shoulders, causing injury. Appellants filed negligence actions against Serfass and Tower. The trial court granted summary judgment to all defendants.
Holding:
Pursuant to Section 302(b) of the Workers’ Compensation Act, general contractors bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors. In this sense, general contractors have been denominated ‘statutory-employers’ relative to workers’ compensation liability. Statutory employers under Section 302(b) enjoy a measure of immunity from liability in tort pertaining to work-related injuries for which they bear secondary liability under the Act. Pennsylvania courts have long applied the following five-factor test to determine if a general contractor was the statutory employer of an injured employee of a subcontractor: (1) The general contractor was under contract with an owner or one in the position of the owner; (2) The general contractor controlled or occupied the premises where the injury occurred; (3) The general contractor entered a subcontract; (4) The general contractor designated part of its regular business to the subcontractor; and (5) The injured party was an employee of such subcontractor. In support of the statutory employer determination, the trial court noted the record showed that (1) Serfass was the general contractor on the Tower Project; (2) Serfass directed Mr. Oster’s conduct on the Tower Project site and was responsible for worker safety; (3) Mr. Oster was working on the Tower Project pursuant to a subcontract between Duggan and Serfass; (4) demolition work was part of Serfass’ regular business; and (5) Duggan employed Mr. Oster at the time of his injury. Additionally, Serfass controlled access to the Tower Project site via a locked gate, Duggan’s employees did not have the access code for the gate, a Serfass employee instructed Mr. Oster on what work to do and where to do it on the worksite, and Mr. Oster took over work that had been started by Serfass employees before his arrival. Serfass had a contract between it and Tower establishing the parties’ relationship, including “demolition and masonry” as part of Serfass’ job duties. These uncontested facts provide additional support to the trial court’s finding that no question of fact existed regarding Serfass’ status as Mr. Oster’s statutory employer.
Affirmed.
Concurring/Dissenting Opinion
There was a concurring/dissenting opinion which expressed, in relevant part, disagreement with the manner in which the statutory employer doctrine has been wielded by negligent general contractors to shield themselves from civil liability when they have not taken any steps to ensure the employees of their subcontractors will be adequately compensated (or even insured) for on-the-job injuries they sustain as a result of that negligence. The opinion acknowledged that the court was bound by existing, controlling statutory and case law to the contrary. The opinion referred to the five-factor test, as “an irrational relic of a bygone era.” This opinion advocated for a change in the workers’ compensation law, and the test should require a sixth element — proof that the general contractor either paid the injured worker’s benefits, or prior to the injury, obtained a policy which would have covered the injured employee.
MUNICIPAL LAW – ACT 101 BENEFITS
Megan Diaz on Behalf of the Est. of Raymond Diaz, (Deceased) v. Dept. of General Services
Commonwealth Court of Pennsylvania – Published Opinion
Decided August 16, 2022
Issue:
Whether the Department erred in holding that the connection between Decedent’s work injury and his death was too attenuated to support a claim for Act 101 benefits?
Background:
In 1996, Decedent began working as a police officer for the City of Philadelphia. In 2014 he was injured in a motor vehicle accident in the course of his employment, sustaining a concussion and injuries to his neck and back. Decedent did not return to work after the vehicle accident, and prior to his death was collecting Heart and Lung Act benefits. In 2016 Decedent fell in his home and injured his left arm. Decedent underwent surgery to repair the arm and was discharged with a prescription for hydromorphone to treat his post-surgical pain. Two days later the Decedent was found unresponsive and died at the hospital. The City’s medical examiner reported that the cause of death was Decedent’s intoxication by the combined effects of hydromorphone, oxycodone, and fentanyl therapy for chronic and postsurgical pain. In 2017, the City of Philadelphia, on behalf of Claimant, applied to the Department for Act 101 death benefits. On April 10, 2019, Eric Decker, Assistant Bureau Director of the Department’s Bureau of Finance and Risk Management, denied the application.
Holding:
Act 101 provides a death benefit to survivors of certain public servants engaged in hazardous occupations. The Act provides two forms of benefits: (1) a one-time cash payment of $100,000, adjusted for inflation, to a spouse or survivors, and (2) lifetime monthly payments to the spouse or survivors in an amount equal to the monthly salary of the deceased. Act 101 requires a “causal relation between death and performance of duties,” and it is to be construed liberally in favor of its intended beneficiaries. Claimant’s testimony and documentary evidence established a causal connection between Decedent’s work injury and his death. But for the work injury, Decedent would not have been prescribed pain medication or experienced ongoing balance problems that led to his fall in 2016. But for that fall, he would not have needed surgery or been prescribed hydromorphone. Regardless of whether the fall resulted from his post-concussive syndrome, it is undisputed that but for Decedent’s work injury, oxycodone and fentanyl would not have been present in his bloodstream when he took the hydromorphone, and their fatal combination with hydromorphone would not have occurred. Thus, Decedent’s death was a direct result of the injuries he sustained in the performance of his official duties. Foreseeability and superseding cause are irrelevant to Act 101 benefits. Under Act 101, the only relevant inquiry is whether death comes as a result of the performance of the decedent officer’s duties. But for Decedent’s work injury, the fatal combination of drugs prescribed for his work injury with the hydromorphone would not have occurred. The medical examiner’s report and death certificate both established that it was the combination of medications that caused his death, not hydromorphone alone. There is no evidence to substantiate the Department’s suggestion that the ongoing use of oxycodone and fentanyl were not related to Decedent’s death. Claimant established a causal connection between Decedent’s injury sustained in the performance of his duties and his death. Therefore, the Department erred in denying her claim for death benefits under Act 101. Claimant is entitled to benefits under Act 101.
Reversed.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
8/1/2022-8/31/2022
CAUSATION
Jones v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division
No. A-3571-19; 2022 WL 3221966
Decided: 8/10/2022
Background:
Jones worked as a recycling operator for Ocean County. In 2010, Jones was connecting an industrial tub grinder to a truck when he slipped and fell, piercing the palm of his right hand on a bungee cord hook. An MRI reflected no evidence of a tendon tear, but performed exploratory surgery a week after the fall, which reported all the nerves and tendons were intact. A month after the fall when he was exercising at home, Jones reported feeling a tearing in his palm after which he was unable to bend his fingers. Jones resigned from his job and began treating with his own doctors. The Board denied his application for accidental disability retirement benefits because he was not permanently and totally disabled, and there was no evidence that the fall and puncture wound were the direct cause of his symptoms. Jones appealed, and the matter was transferred to the Office of Administrative Law for a hearing.
Medical records indicated that Jones did not report pain in his neck or right shoulder until about a month after the accident. Jones testified he sustained injuries in the accident that were never looked at that have gotten worse over time, and he was in constant pain despite taking no pain medication and receiving no treatment. Jones did not present the testimony of a treating doctor. Instead, each side presented testimony of experts who examined Jones for the purpose of this action.
The Administrative Law Judge (ALJ) found Jones’s expert to be more credible and found the Board’s expert “gave no weight to Jones’s symptoms, the MRI and x-rays, and other medical reports.” The ALJ found that Jones’s disability was total, permanent, and a direct result of the July 2010 accident. The Board rejected the decision of the ALJ and specifically: her findings as to the credibility of the experts who testified; the ALJ’s findings that the Board’s expert gave no weight to Jones’s symptoms, the MRIs and x-rays, and other medical reports; and the ALJ’s summary of the testimony. The Board argued that when the ALJ rejected its experts’ testimony, she found a medically impossible symptomology credible. The Board concluded that Jones failed to produce competent medical testimony that his claimed disability is the direct result of a traumatic event. Jones appealed.
Holding:
The court found that they are satisfied that the Board appropriately rejected the ALJ’s decision finding Jones had established that he was permanently and totally disabled as a direct result of the work injury to his right hand. The court held that while the N.J.S.A. 52:14B-10(c) provides that an agency head may not reject an ALJ’s fact findings as to issues of credibility of lay witness testimony without first determining the findings are arbitrary or capricious, or not supported by sufficient, competent, and credible evidence in the record, that constraint does not extend to the testimony of experts.
The court was satisfied that the Board’s criticisms of the ALJ’s findings of fact are fair, as the ALJ’s summary of the experts’ testimony does not capture the facts underlying the opinion of each expert. The court also found that the ALJ erroneously stated that Jones’s expert concluded his disability was a direct result of the 2010 injury, even though the expert never stated that opinion at the hearing. Because Jones did not establish that his alleged disability was a direct result of the work injury, the court held that the Board was correct to deny Jones accidental disability retirement benefits.
Affirmed.
SUMMARY JUDGMENT
Alleyne v. New Jersey Transit Corporation
Superior Court of New Jersey, Appellate Division
No. A-0753-20; 2022 WL 3348400
Decided: 08/15/2022
Background:
Plaintiff, Anthony Alleyne, appeals from an October 8, 2020 order granting NJ Transit summary judgment and dismissing the plaintiff’s second amended class action complaint. The complaint alleged that NJ Transit’s sleep apnea policy was discriminatorily applied to plaintiff, violating the Law Against Discrimination (LAD) of the Workers’ Compensation Act.
NJ Transit implemented an “Obstructive Sleep Apnea (OSA) Policy – Rail Operations” (Policy) effective April 20, 2017, after a train engineer who suffered from undiagnosed sleep apnea fell asleep at the controls, causing a crash that left one person dead and over 100 injured. NJ Transit therefore requires screening for OSA during routine physical exams mandated by defendant. Employees would be paid for lost wages for scheduled work if they were taken out because they were medically not approved based solely on OSA screening criteria. Plaintiff was a member of the Brotherhood of Locomotive Engineers and Trainmen (BLET), which also required physical examinations and would pay lost wages if the engineer was medically fit to serve at the time he was held out of service.
One of the criteria that makes someone high-risk for sleep apnea is a BMI of 35 or more. NJ Transit considers sleep apnea a medical condition, therefore an employee removed from service for sleep apnea is not reimbursed for costs associated with testing or medical consultations. During plaintiff’s routine physical in October 2016, his BMI was determined to be greater than 35, and he was removed from service pending a sleep study. Plaintiff picked Trinitas Hospital for his sleep study because he felt it would be the quickest. Plaintiff was diagnosed with OSA after the sleep study, completed treatment, and was cleared to return to service on November 9, 2016. He was not reimbursed for costs associated with treatment and testing.
Plaintiff raises 4 challenges on appeal. “Plaintiff argues that the judge erroneously:
- Determined sleep apnea is not a disability by incorrectly applying the ADA standard, and finding that NJ Transit did not perceive plaintiff had a disability;
- Applied the burden-shifting framework established in McDonnell Douglas Corp. v. Green, and incorrectly concluded plaintiff failed to establish the policy was discriminatory;
- Found NJ Transit’s sleep apnea reimbursement policy is ‘inextricably intertwined’ with the CBA and, as such, preempted by the Labor Management Relations Act, notwithstanding defendant’s concession otherwise; and
- Concluded plaintiff was not required to treat with a specific sleep apnea doctor, barring recovery of reimbursed medical expenses under N.J.S.A. 34:11-24.1.”
Holding:
The court held that the LAD does prohibit discrimination based on an employee’s disability or perceived disability. However, the LAD does not “prohibit the establishment and maintenance of bona fide occupational qualifications” or “prevent the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment.” To establish employment discrimination under the LAD, NJ courts use the burden-shifting analysis in McDonnell Douglas, under which plaintiff must establish a prima facie case of discrimination.
The court agreed that the motion judge applied the wrong standard when ruling plaintiff’s sleep apnea was not a disability under the ADA, as plaintiff did not assert an ADA claim. Plaintiff argued that his BMI was the only reason he was removed from service, and he presented no expert evidence on causation. Plaintiff did not claim that NJ Transit failed to accommodate his sleep apnea, as there is no accommodation that would have permitted plaintiff to safely perform his job.
The court held that summary judgment was properly granted to NJ Transit because even if sleep apnea was a disability under the LAD, plaintiff was removed from service based on a medical condition that posed a serious threat to the health and safety of plaintiff and others, and not because of his physical impairment or perceived impairment. The court held that they do not have to use the McDonnell Douglas framework because plaintiff did not establish a prima facie case of discrimination. The court also was not persuaded by plaintiff that NJ Transit was required to pay for his sleep apnea examination.
Affirmed.
STANDARD OF EVIDENCE
Mack v. Board of Trustees, Teachers’ Pension and Annuity Fund
Superior Court of New Jersey, Appellate Division
No. A-2780-20; 2022 WL 3641728
Decided: 8/24/2022
Background:
Jennifer Mack is a former teacher and school administrator. In August 2014, she began working as an elementary school principal at Delanco. In March 2015, she was informed by the school superintendent that she was not a good fit, and her contract would probably not be renewed. Mack heard rumors that the real reason she was not renewed was her sexual orientation, which was confirmed by a Board member. She began experiencing panic attacks, lethargy, anxiety, and depression, and sought treatment.
In July 2015, after completing her contract with Delanco, she took a job as the student services director for Delran, where she worked until October 2015. Mack testified she left this job because she suffered from depression and could not keep up. Her resignation letter did not mention her illness, and instead stated that the position was not a good fit. Nine days after submitting her resignation letter, she advised that she was taking a medical leave of absence for the remainder of her notice period. Mack began working a six-month part-time position as a site supervisor at the Burlington County Juvenile Detention Facility in January 2016. She was hospitalized in June 2016 and never returned to work.
Mack applied for TPAF ordinary disability retirement benefits in July 2017, and in June 2018, the Board denied her application, finding that she was not totally and permanently disabled at the time she left employment with Delran in October 2015. Mack appealed and a hearing took place in front of an Administrative Law Judge (ALJ). Both parties presented expert witnesses who examined Mack for purposes of litigation. Mack called a Dr. Gollin, who diagnosed her with bipolar II disorder and stated he could not give an exact date as to her disability. The Board called a Dr. LoPreto, who diagnosed her with several mental health diagnoses, but stated that her disability “came crashing down in June 2016” when she had to be hospitalized.
The ALJ concluded that Mack proved she was disabled by October 2015 and she was entitled to ordinary disability retirement benefits. The Board rejected this determination and the ALJ’s credibility findings with regard to the experts. The Board also rejected the ALJ finding that Mack’s employment at the juvenile detention facility was distinguishable from her school administration work because it was less taxing and required less work. The Board also noted that the ALJ did not consider Mack’s resignation letter. The Board therefore denied her application for disability benefits. Mack appealed, alleging that the Board’s decision was not supported by the substantial credible evidence of record.
Holding:
A TPAF member is eligible for ordinary disability retirement benefits if a physician certifies that the member is physically or mentally incapacitated for the performance of duty. The courts have held that the applicant must have left her position due to the disability. The court held that Mack’s reliance on N.J.S.A. 52:14B-10(c) was misguided as it does not apply to expert witnesses. The Board stated specific reasons for crediting the testimony of Dr. LoPreto instead of Dr. Gollin. Furthermore, Dr. Gollin testified that he could not opine as to a specific date or event that triggered her disability, whereas Dr. LoPreto opined that Mack did not become functionally impaired until April 2016 according to her treating doctor, or June 2016, when she was hospitalized.
The court held that the Board’s denial of Mack’s ordinary disability retirement benefits was not arbitrary, capricious, or unreasonable and was supported by sufficient credible evidence.
Affirmed.
RELIEF UNDER RICHTER
Panckeri v. Allentown Police Department
Superior Court of New Jersey, Appellate Division
No. A-2015-19; 2022 WL 3585818
Originally Decided: 3/2/2022
Remanded by Supreme Court: 7/6/2022
Decided: 8/19/2022
Background:
Panckeri was injured during the course of his employment with the Allentown Police Department. He filed both a workers’ compensation claim, and a tort action against the driver and owner of the vehicle that injured him. Panckeri settled both matters. Allentown asserted a lien against Panckeri’s tort settlement under N.J.S.A. 34:15-40 (Section 40). Panckeri challenged the lien against the full amount of permanency benefits and argued that the lien should not include the amount for attorney’s fees and litigation costs for his workers’ compensation claim. The judge of compensation disagreed.
Thereafter, the Richter case was decided by the Supreme Court, which addressed whether recovery under the New Jersey Law Against Discrimination (LAD) was barred by the exclusivity provision of the Workers’ Compensation Act (WCA). The Court affirmed the ability to seek dual relief under both the LAD and WCA. In its opinion, the Court opined that the Section 40 lien was limited to 2/3 the amount paid in workers’ compensation to Richter in medical payments and temporary benefits with the remaining allocated to reimburse Richter’s compensation counsel.
Holding:
This court found that it is clear from the language in Richter that Section 40 was interpreted as preventing employers from being reimbursed for fees that a workers’ compensation claimant paid to counsel out of the compensation award. The court held that viewing the Richter decision through the lens of Section 40 suggests that the split refers to Richter’s potential damages award under the LAD, not her workers’ compensation award. The court held that Section 40 was silent on the treatment of attorney’s fees or litigation costs with regard to a workers’ compensation claim. Section 40 instead deals with the lien and net amount to be paid to a plaintiff when there is a third-party tort action, and the third-party counsel is being paid on a contingent basis pursuant to recovery, whereas the LAD provides for fee shifting if the plaintiff prevails.
The court declined to disturb its decision where there is no binding precedent holding that attorney’s fees and litigation costs arising out of the workers’ compensation claim should be excluded from a Section 40 lien.
Affirmed.
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