PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
10/28/2022 – 11/30/2022
EXPERT TESTIMONY – COMPETENCE
Great Arrow Builders v. Barry Shemenski (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided October 28, 2022
Issue:
Whether claimant’s expert’s opinion on causation was incompetent because it was based on an inaccurate and incomplete medical history?
Background:
Employer hired Claimant as a union laborer who assisted carpenters working with concrete. Claimant began having neck pain, visited his primary care physician, and started taking pain medication. Claimant then developed severe hip pain, which he believed was from walking on the large rocks. Claimant again visited his primary care physician, who diagnosed back pain. Claimant filed a claim petition. The WCJ credited the testimony of Claimant and claimant’s expert. The WCJ acknowledged that Claimant was a poor historian of his prior treatment history. The WCJ granted Claimant’s petition, and Employer appealed to the Board. The Board acknowledged that claimant’s expert was not familiar with the entire breadth of Claimant’s extensive medical history, but noted that claimant’s expert explained that this history did not affect his opinions.
Holding:
The WCJ is the fact-finder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Here claimant’s expert reviewed Claimant’s various medical records and did not base his expert opinion solely on Claimant’s reported medical history. Employer’s argument goes to the weight of the testimony and not its competency. The WCJ credited claimant’s expert’s and Claimant’s testimony that Claimant’s back injury was a work-related injury. This is the prerogative of the fact-finder. Because there is substantial evidence of record supporting the WCJ’s findings, and because Claimant is entitled to the benefit of all favorable inferences drawn from the evidence, the court agreed with the Board that the WCJ’s findings are neither arbitrary nor capricious, and declined to reweigh the evidence or disturb the WCJ’s credibility determinations.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
Donna Kilgallon v. The Village at Palmerton & Laundry Owners Mutual (WCAB)
Commonwealth Court of Pennsylvania – Unpublished. en banc, Memorandum Opinion
Decided: November 21, 2022
Issue:
Whether claimant met her burden on a Reinstatement from an IRE modification, and is her current petition barred by Res Judicata?
Background:
Claimant sustained a disabling work-related injury on March 3, 2007 and began receiving temporary total disability (TTD) benefits in the fall of 2007. A 2011 IRE returned an impairment rating of less than 50%, and Claimant’s benefits were modified to temporary partial disability (TPD) status with a 500-week limit as of November 28, 2009, the date when Claimant had reached 104 weeks of TTD since her injury. After Protz II, Claimant filed petitions in 2017 seeking reinstatement of her TTD status. The WCJ issued an October 27, 2017, decision granting Claimant’s petitions and reinstating her TTD benefits as of December 16, 2009. In June 2018, during the pendency of Employer’s appeal to the Board, the Court issued the Whitfield Decision. The General Assembly also passed Act 111 of 2018. The Board therefore remanded the matter to the WCJ to reopen the record and address the recent changes in the law. The WCJ, relying on Whitfield, concluded Claimant had not met her burden to show that her injury was ongoing and denied her reinstatement petitions in a June 2019 decision and order. The WCJ also concluded that Act 111 was not relevant as the modification of Claimant’s benefits had taken place under former Section 306(a.2) of the Act. Claimant appealed. While the foregoing litigation was active, Claimant filed the present reinstatement, review, and penalty petitions on October 14, 2020. The petitions, which contain identical wording, assert that as of September 30, 2020, Employer wrongfully stopped Claimant’s benefits on the basis of former Section 306(a.2) of the Act, which was repealed after being found unconstitutional in Protz II. Counsel for Claimant acknowledged that the gist of the current petitions is that Whitfield was wrongly decided. In a May 5, 2021, decision and order, the WCJ restated this Court’s determination in Whitfield that in order to have TTD status restored in the post-Protz II context, the claimant must, at the least, testify credibly that her work-related injury continues. The WCJ determined, and the Board affirmed, that Claimant’s arguments concerning Whitfield had been raised and addressed in her appeal based on her 2017 petitions, which concluded with Kilgallon I, and therefore were precluded pursuant to res judicata principles.
Holding:
In order to secure reinstatement of TTD benefits after Protz II, a claimant “must testify that her work-related injury continues, and the WCJ must credit that testimony over any evidence that an employer presents to the contrary.” Claimant asked the Court to rule again on a claim that she had a full and fair opportunity to (and did) litigate in 2020-21. It was not clear why Claimant decided to relitigate these issues with new petitions in October 2020 when her previous litigation on similar petitions were still active, but her failure to testify that her injury is ongoing, both then and now, dictates the same unsuccessful outcome here on the merits.
Affirmed.
Sherri Corsaro v. Commonwealth of Pennsylvania and Inservco Ins. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decision: November 2, 2022
Issue:
Whether the retroactive application of the IRE process contained in Section 306(a.3) to an injury that occurred before Act 111’s effective date is unconstitutional?
Background:
Claimant was injured during the course and scope of her employment when she slipped and fell on icy pavement and injured her lower back and hips and lacerated her left knee. Employer accepted liability for Claimant’s work injury. In 2020 Employer filed a Petition to Modify, asserting that Claimant’s benefits should be converted from TTD to partial disability based upon an IRE. The WCJ found that Employer had proven that Claimant had a whole-body impairment of zero percent under the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Sixth Edition, Second Printing (Guides). The WCJ modified Claimant’s benefits to partial disability effective the date of the IRE. The Board affirmed the WCJ.
Holding:
Act 111 was not an unconstitutional delegation of legislative authority. No vested right or contractual obligation is involved. An act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events prior to that date. Claimant did not automatically lose anything by the enactment of Act 111. Act 111 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 TTD benefits.
Affirmed.
Jacqueline Perillo v. Extended Healthcare Services (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 2, 2022
Issues:
Whether Section 306(a.3) of the Act violates article I, section 11 of the Pennsylvania Constitution, and whether Section 306(a.3) of the Act contains sufficiently specific language to be applied retroactively?
Background:
Claimant suffered an injury in the course of her employment with Employer on October 9, 2003. On May 1, 2019, Claimant underwent an IRE, which returned a 4% 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 TTD to TPD as of the date of the IRE. The WCJ granted Employer’s petition and modified Claimant’s status to TPD as of the date of the IRE.
Holding:
Recently, in the published decision of DiPaolo v. UPMC Magee Women’s Hospital (Workers’ Compensation Appeal Board), a panel of the Court rejected a claimant’s argument that Section 306(a.3) of the Act violated article I, section 11 of the Pennsylvania Constitution. For the same reasons outlined therein, the court rejected claimant’s challenges to Section 306(a.3) of the Act.
Affirmed.
William McDonald v. Pennsylvania Turnpike Commission and UPMC Benefit Management Services (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 4, 2022
Issues:
Whether the retroactive application of Act 111 violates the Remedies Clause of the Pennsylvania Constitution and whether the WCJ should have rejected the IRE because Claimant has not received 104 weeks of total disability benefits since Act 111 came into effect?
Background:
Claimant sustained work-related post-traumatic stress disorder. In 2019, Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 20% and that he had reached maximum medical improvement (MMI). The IRE evaluator used the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides). In response, Claimant presented the testimony of a board-certified psychiatrist who opined that Claimant had not reached MMI and that Claimant was incapable of gainful employment, but Claimant’s expert also conceded that he was not certified to perform an IRE. The WCJ concluded that Employer established that Claimant had reached MMI and had a whole-body impairment of 20% and, therefore, granted Employer’s petition, modifying Claimant’s benefits to partial disability status as of the date of the IRE. The Board affirmed.
Holding:
Act 111 does not deprive claimants of a vested right but simply provides 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. The employer credit provision was explicitly given retroactive effect by the General Assembly.
Affirmed.
Choya Force v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 10, 2022
Issue:
Whether Act 111 can be retroactively applied to the claimant’s injury?
Background:
Claimant suffered a work-related injury to her back and received total disability benefits. Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 14%. Claimant indicated she was challenging only the applicability of Act 111 because her injury predated the Act. The WCJ granted Employer’s modification petition, reasoning that Employer had proven that Claimant had a 14% whole body impairment, and therefore Claimant should receive partial disability benefits. Claimant appealed to the Board, which affirmed.
Holding:
Claimant sustained her work-related injury before the passage of Act 111. Based upon established precedent, 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.
Affirmed.
Benedict J. Doe v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided November 17, 2022
Issues:
Whether Act 111 can be retroactively applied to injuries that occurred before the date when Act 111 became effective and whether Act 111 is an unconstitutional delegation of the General Assembly’s legislative authority?
Background:
Claimant sustained injuries to his hands and face resulting from an electric shock which occurred in the course of his employment. In 2021, Employer submitted a petition to modify Claimant’s benefits from TTD to partial, based on an IRE. That examination, conducted in accordance with the 6th edition of the AMA Guides, assigned Claimant a whole body impairment rating of 19%. The WCJ granted the modification petition and changed Claimant’s benefits to partial status as of the date of the IRE. The Board affirmed the WCJ.
Holding:
The Court noted that it has already considered and rejected the claimant’s arguments. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Further, there is no delegation to the AMA in Section 306(a.3). It does not adopt, sight unseen, future standards or editions of the AMA Guidelines, without guidance by the General Assembly as to the basic policy decisions and standards to restrain the discretion of the entity setting those standards.
Affirmed.
Paul Dick v. Royal Flush Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 18, 2022
Issues:
Whether Act 111 is unconstitutional on its face and can be applied retroactively?
Background:
Claimant sustained injuries to his left femur, tibia, fibula, and kneecap as a result of a motor vehicle collision that occurred in the course of his employment. Employer recognized the injuries via a Notice of Temporary Compensation Payable (NTCP). Employer submitted a modification petition based on the results of an IRE. The examination, which was performed in accordance with the Sixth Edition of the AMA Guides, assigned Claimant a whole body impairment rating of 26%. The WCJ granted the modification petition and changed Claimant’s benefit status from total to partial, effective the date of the IRE.
Holding:
The Court noted that it has already considered and rejected the claimant’s arguments. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Further, there is no delegation to the AMA in Section 306(a.3). It does not adopt, sight unseen, future standards or editions of the AMA Guidelines, without guidance by the General Assembly as to the basic policy decisions and standards to restrain the discretion of the entity setting those standards.
Affirmed.
Jeanie Ellwood v. Pocono Medical Center and PMA Management Corp. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 29, 2022
Issues:
Whether Act 111 can be constitutionally applied to workers whose injuries occurred before the effective date of Act 111 and whether Act 111 contains sufficiently specific language to make the law retroactive?
Background:
Claimant sustained a work-related injury. In 2019, Claimant underwent an IRE, provided for in Section 306(a.3) of the WC Act, which resulted in a whole person impairment rating of 13%. Employer filed a Modification Petition, seeking to modify Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted the Modification Petition. The Board affirmed.
Holding:
Act 111 simply provides 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 temporary total disability benefits. That the General Assembly used specific language to give retroactive effect to certain carefully selected individual provisions does not make the entirety of Act 111 retroactive as the amendment lacks clear language to that effect. There is no provision in Act 111 which specifically or implicitly provides for an IRE performed prior to Section 306(a.3) of the Act’s enactment to be validated afterward. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Accordingly, Claimant’s argument that Act 111 does not contain sufficiently specific language to make the law retroactive lacks merit.
Affirmed.
MENTAL INJURIES
Berks Area Regional Transportation Authority v. Lena Katzenmoyer (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 8, 2022
Issue:
Whether incidents to which the claimant was exposed were abnormal working conditions?
Background:
Claimant worked as a bus driver for Employer since 2014. On October 19, 2018, Claimant was driving when she heard and saw shots being fired in her rear-view mirror (October incident). Claimant saw people running up the sidewalk and screaming. Her bus was struck twice by bullets. Two months later, on December 19, 2018, there was a second incident involving Claimant’s bus being shot at and struck by bullets (December incident). Claimant was driving when a big window on the passenger side of the bus was “shot out.” The driver’s side windshield above Claimant’s head was also struck with bullets. Claimant filed two claim petitions, one alleging psychological injury from the October incident, and one alleging psychological injury from the December incident, both of which Employer denied. The WCJ found, and the Board affirmed, that Claimant met her burden of establishing that she had a psychological condition caused by her employment through the unequivocal medical testimony and that Claimant met her burden of proving that her psychological injury was a result of abnormal working conditions, as required by the applicable mental-mental standard. While her manager testified that drivers have a short classroom training on various projectiles hitting the bus and vandalism, Claimant’s situation was far more severe than merely vandalism or rocks being thrown at the bus.
Holding:
Although each individual event could alone rise to the level of an abnormal working condition, the combination of the two within two months of each other even more clearly establishes abnormal working conditions. Although a city bus driver could potentially experience events such as vandalism or projectiles being thrown at the bus, these two events both were far more severe and were highly unusual and traumatic, far outside what bus drivers would be expected to experience at their jobs. Employer does not dispute that Claimant’s bus was shot at and struck by bullets, or that Claimant heard and saw multiple gunshots take place behind her bus during the October incident. The fact that Claimant did not learn until the next day that a person was killed in the incident, or that she did not view the bullet holes in her bus, does not render the Board’s description inaccurate. Mental injuries as a result of abnormal working conditions present a mixed question of law and fact and the question of whether the events may be considered abnormal must be considered in the context of specific employment.
There was no error in the WCJ’s or Board’s conclusion that these two incidents, either separately or together, constituted abnormal working conditions, in the context of Claimant’s job as a bus driver.
Affirmed.
Amy Kratz v. Commonwealth of Pennsylvania, Department of Corrections (WCAB)
Commonwealth Court of Pennsylvania – Unpublished, en banc, Memorandum Opinion
Decided: November 30, 2022
Issues:
Whether Claimant presented evidence of a physical/mental injury that was sufficient to meet her burden of proofe using the physical/mental standard? Whether, the Court should adopt a new standard under the Workers’ Compensation Act for a sexual assault/mental injury?
Background:
Claimant was working as a Registered Nurse for the Department of Corrections (Employer). One day, she was completing an assessment of an inmate, who requested a triage after stating he was not feeling well. While he was taking cough medicine and she was providing verbal instructions and education, he reached over and grabbed between her legs. She then used both hands to push him away. Claimant reported that she had some swelling and tenderness of her genital area for about two or three days afterwards. A few days later, Claimant went to an urgent care office, complaining of anxiety. During her regularly scheduled OB-GYN visit, Claimant was examined by a physician’s assistant. She did not treat with any other providers for her physical symptoms. With regard to her psychological or mental symptoms following the incident, Claimant initially saw her family practitioner who prescribed Xanax, Lexapro, and Trazodone. She then saw a psychiatrist who changed her prescriptions to Effexor, Neurontin and Minipress. She also began to visit a psychologist, for therapy. Claimant filed a claim petition describing the work injury as “swelling and tenderness of genital area, anxiety, depression and sleep disturbance.” The WCJ denied and dismissed Claimant’s claim petition, concluding that Claimant did not sustain a physical/mental injury as a result of the incident. The Board affirmed.
Holding:
Substantial evidence supports the WCJ’s finding Claimant did not establish that her mental injury resulted from a work-related, triggering physical stimulus. First, regarding the physical prong of the physical/mental claim, Claimant argues that she was the victim of a sexual assault, and that sexual assault should be considered a physical stimulus even absent a physical injury. The Court did not need to decide this issue instantly because Claimant failed to meet the second prong of the physical/mental test. Based on the credited evidence, the WCJ found that Claimant did not prove that she suffered a mental injury as the result of the incident. The WCJ credited the opinions of employer’s expert as more credible and persuasive and, based on that evidence, concluded that Claimant did not meet the burden of proof for purposes of establishing that she suffered a compensable mental injury using the physical/mental standard. A WCJ’s credibility determinations are due substantial deference, and such determinations may only be overturned if they are arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational
Affirmed.
JUDICIAL DISCRETION
Joseph Marvelli v. US Foods, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 2, 2022
Issues:
Whether substantial evidence supports the WCJ’s finding that the workplace incident was not the cause of Claimant’s lower back injury? Whether the mechanism of the work injury and the fact testimony establish an obvious causal connection between the injury and the lower back and leg symptoms?
Background:
Claimant worked for Employer, a foodservice distributor, as a territory sales manager. He sustained an injury while taking items for a delivery out of the back seat of his truck. Employer accepted liability for the injury through a medical-only Notice of Compensation Payable (NCP), which described the injury as a strain or tear of the shoulder. Claimant filed review petitions which alleged injuries to the neck, shoulder, and back, including lumbar radiculopathy, as a result of his work-related accident. Employer filed a review petition of its own, requesting that the injury description be amended to refer to “a cervical strain” rather than a shoulder strain. The WCJ denied Claimant’s Petitions and granted Employer’s Review Petition. The WCJ explained that, to the extent that the two medical experts disagree, he found employer’s expert more credible due to claimant’s expert’s failure to examine previous treatment records before forming his opinion. Claimant appealed to the Board, which remanded due to an error in the language of the WCJ’s Order. On remand, the WCJ corrected the error and readopted and reissued all the factual findings and legal conclusions in his earlier opinion. The Board affirmed.
Holding:
When the connection between the injury and the alleged work-related cause is not obvious, it is necessary to establish the cause by unequivocal medical evidence. By deeming a witness’s testimony generally credible, the WCJ does not commit himself to a wholesale adoption of every statement made by that witness. Credibility and persuasiveness are not identical qualities. A WCJ may find a witness completely credible (that is, stating the truth as he or she believes it) without being persuasive (that is, convincing in support of a particular conclusion). Since the inference of a causal connection required unequivocal medical testimony, the WCJ properly looked to the medical experts to form his conclusion. The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight. Unless made arbitrarily or capriciously, the WCJ’s credibility determinations will be upheld on appeal. Since the WCJ’s credibility findings in the instant matter are well supported by the record, there is no reason to regard them as either arbitrary or capricious.
Affirmed.
Olivia Brooks v. Brown’s Super Stores (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 4, 2022
Issue:
Whether the WCJ erred in finding that claimant did not suffer an injury, despite the video, in light of the medical-only NCP, MRI results, and the IME findings of employer’s expert?
Background:
A box fell from a shelf onto Claimant at work (the Incident). The Incident and Claimant’s behavior in the 20 minutes thereafter were captured by Employer’s surveillance footage (Video). Employer issued a Notice of Temporary Compensation Payable (NTCP) accepting the injury as a cervical and lumbar strain and timely filed a medical-only Notice of Compensation Payable (NCP). Thereafter, Claimant filed a claim petition for temporary total disability benefits, alleging injuries to her neck, back, and head. Employer denied the allegations of injury or disability but stated that if an injury did occur, it has since ceased, and was not work-related. Claimant underwent an independent medical examination (IME) which found that she could return to her pre-Incident work because she had fully recovered from her Incident-related injuries of a head contusion and aggravation of a cervical and lumbar sprain/strain. Employer presented the Video, and depositions from its medical expert. Employer’s expert testified that the immense force needed to herniate disks as revealed by an MRI is not depicted on Video. The Video did not show any disorientation or serious injury to Claimant. The WCJ found that Claimant was not injured from the Incident and, thus, failed to establish her burden of proving disability under the Act. The WCJ deemed Claimant’s testimony was totally inconsistent with the Video and that she had exaggerated her injury. Accordingly, the WCJ denied Claimant’s petition for disability benefits. The Board affirmed the WCJ’s decision on appeal.
Holding:
Substantial evidence supports the WCJ’s determination that Claimant did not sustain a compensable injury from the Incident and, thus, is not entitled to disability benefits under the Act. To the extent Claimant disputes the WCJ’s findings, issues of credibility and evidentiary weight are within the sole discretion of the WCJ. An employer’s issuance of a medical-only NCP stops temporary compensation and prevents an automatic NCP conversion. By issuing a medical-only NCP, an employer acknowledges injury and accepts liability for associated medical payments, but nothing more. A claimant still maintains the burden of proving a disabling work injury by competent medical evidence. Further, an employer may successfully terminate a claimant’s benefits where its medical expert recognizes the work injury as described in the NCP and opines that the claimant has fully recovered from that injury. Therefore, the WCJ’s “no injury” finding was not in error but rather is supported by substantial evidence. Finally, the weight the WCJ assigned to the Video is not reviewable by this Court on appeal.
Affirmed.
John W. Pague v. Capital Area Transit Authority (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: November 18, 2022
Issue:
Whether the claimant preserved the issue of whether the WCJ’s findings and credibility determinations are supported by substantial evidence?
Background:
On November 6, 2019, Claimant hit a large pothole while driving a bus in the course of his employment with the Capital Area Transit Authority (Employer). Following this incident, Claimant filed a claim petition, seeking total disability benefits. The WCJ circulated a decision denying Claimant’s claim and penalty petitions. Claimant, pro se, filed an appeal with the Board, stating that he wished to preserve his right to appeal while seeking an attorney to represent him. Regarding the grounds for his appeal, Claimant simply argued that there are “too many errors of the WCJ’s decisions in this work injury case.” The Board dismissed Claimant’s appeal on the basis that it failed to raise any issues with specificity. Even had Claimant preserved any issues for appeal, the Board concluded that the WCJ’s decision was supported by substantial, competent evidence, as the WCJ rejected Claimant’s medical evidence and Claimant was unable to meet his burden of establishing that he suffered a work-related injury.
Holding:
Where a claimant has failed to raise an issue in any manner before the Board, that issue is waived. Claimant’s LIBC-25/26 merely alleges that “there are too many errors of the WCJ’s decisions in this work injury case.” C.R., Item No. 9. Additionally, Claimant stated that he “wish[es] to preserve [his] right to appeal this case while seeking an attorney to represent [him] in this matter[,]” Claimant’s general allegations of error on the WCJ’s part, and his desire to preserve the right to appeal while seeking legal representation, do not absolve Claimant of the obligation to comply with the requirements of Section 111.11(a)(2). Accordingly, the Board did not err in dismissing Claimant’s appeal based on his failure to raise any issues with specificity. Further, Claimant waived the issues raised in his petition for review, as those issues were not raised before the Board. Even if Claimant had challenged those findings in his appeal, Claimant failed to support the arguments in his brief with pertinent legal authority, as required by Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure. The Court will not consider the merits of an issue that is not properly raised and developed in a brief.
Affirmed.
COURSE AND SCOPE STANDARD
Barbara Wormley v. Air Wisconsin Airlines (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: November 22, 2022
Issue:
Whether the WCJ and the Board erred in concluding that claimant’s injury did not occur in the course and scope of her employment?
Background:
Claimant works as a flight attendant for Air Wisconsin Airlines (Employer). Claimant fell on a SEPTA train platform attempting to get on a train on her way to work. Claimant filed a claim petition alleging a work injury. The WCJ found that Claimant was not a traveling employee, explaining that she had a fixed place of employment at Chicago O’Hare Airport. The WCJ found that when Claimant was injured, she was commuting to work and was not on Employer’s premises. Claimant was responsible for getting herself to the airport to get a flight to Chicago O’Hare. Employer did not provide transportation for its employees to and from work; it only provided general flight privileges from airport to airport. Therefore, the WCJ concluded that Claimant did not meet her burden of proving that she was in the course of employment when she was injured at the train station and denied her claim petition. The Board affirmed. On Appeal, claimant argues that her injury was compensable because she was on her way to work, in uniform, and traveling by train to the Philadelphia Airport to fly to Chicago O’Hare Airport, which was a reasonable way for her to access Employer’s premises.
Holding:
Claimant was not engaged in furthering the activities of Employer when she was injured. The injury occurred the day before she was scheduled to work out of Chicago O’Hare. Additionally, the train station is not part of its premises because it did not issue any directive or exercise control over the mode of its employees’ transportation to and from work. Claimant does not assert that she was furthering Employer’s business when she was injured. Rather, Claimant argues that she was injured on Employer’s premises. However, Employer does not own, maintain, or control the train or the train platform, and the train is not a part of Employer’s business, Claimant did not show an injury on its premises. Whether the injury occurred on the employer’s “premises” under Section 301(c)(1) of the Act turns on whether the site of the accident is so connected with the employer’s business as to form an integral part thereof. The critical factor is not the employer’s title to or control over the area, but rather the fact that the employer had caused the area to be used by its employees in performance of their assigned tasks. Claimant fell on a train platform. The train and its platform were not a place where Employer’s “business or affairs are being carried on,” or where Claimant’s “presence thereon was required by the nature of her employment.” Claimant presented no evidence that her presence on the train was required by the nature of her employment. Claimant was not reimbursed for any travel and could have chosen any means to get to the Philadelphia Airport, or, for that matter, to Chicago. The trains were not provided for airport employees and Claimant was not entering or exiting her workplace within a reasonable time before or after her shift.
Affirmed.
WORKERS’ COMPENSATION INSURANCE COVERAGE
Connect A Care Network, LLC v. SWIF and Elaine Davis (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 17, 2022
Issue:
Whether Employer had an effective workers’ compensation policy with SWIF on the date of Claimant’s injury?
Background:
Claimant’s initial petition alleged that she sustained extensive injuries when she was assaulted by a client of Employer and sought total disability benefits. Subsequently, Claimant filed an uninsured claim petition against Employer and the Uninsured Employers Guaranty Fund (UEGF). Thereafter, Claimant filed a joinder petition against SWIF contending that it was Employer’s workers’ compensation carrier on the date of the injury. SWIF filed a joinder petition against UPMC Work Partners alleging that it provided coverage for Employer on the date of the injury. SWIF presented testimony that Employer did not have a workers’ compensation policy in effect with SWIF on the date of the injury, the policy having been cancelled by Employer prior to the injury. Employer was in the process, but had yet to finalize, the application for a new policy on the date of the injury. The WCJ ultimately found that Employer did not have workers’ compensation coverage through either SWIF or UPMC Work Partners. The Board affirmed the WCJ’s conclusion that Employer did not have a policy with SWIF in effect on the date of the injury.
Holding:
It is well established that a WCJ has jurisdiction to determine questions of insurance coverage. This jurisdiction includes authority to determine whether or not a policy has been cancelled. The WCJ is the finder of fact and is free to accept or reject, in whole or in part, the testimony of any witness. There is substantial, competent evidence in the record to support the WCJ’s findings, and the Court does not have the authority to review the WCJ’s well-reasoned credibility determinations.
Affirmed.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
10/25/2022-11/30/2022
TIMELINESS OF APPEAL
Orellana v. Zaklikovsky et al.
Superior Court of New Jersey, Appellate Division
No. A-0780-21; 2022 WL 16595920
Decided: 10/31/2022
Background:
Petitioner was employed by Chabad as a domestic helper for the Zaklikovskys. On August 23, 2017, petitioner was injured at the Zaklikovsky residence in the course of her employment, causing a left knee meniscal tear and lumbar and cervical herniations. Petitioner filed a workers’ compensation petition against Chabad, but they did not maintain workers’ compensation insurance at the time, so she then amended her petition to assert claims against the Zaklikovskys. On April 16, 2018, a judge of compensation entered an order against Chabad, awarding petitioner temporary disability benefits and payment of medical treatment. Chabad appealed, and on October 9, 2019 the court affirmed, and found that respondents did not defend the motion, and therefore relinquished the right to control petitioner’s treatment.
On May 19, 2020, the judge of compensation awarded petitioner both temporary and permanent disability benefits. The judge also placed the case on the discontinuance list, closing the case temporarily until a new judge was assigned. Respondents did not appeal the award. On May 8, 2021, petitioner filed a motion to reinstate the matter from the discontinuance list as to the Uninsured Employers Fund (UEF).
On October 5, 2021, the compensation court granted petitioner’s request to reinstate the case, but the judge immediately closed the case, thereby dismissing petitioner’s request for additional compensation without prejudice and reaffirming the judgments of April 16, 2018 and May 19, 2020. At not time during the October 5 hearing did the Respondents challenge the May 19, 2020 award of permanent disability benefits.
Holding:
The court stated that “appeals from final judgments of courts, final judgments or orders of judges sitting as statutory agents, and final judgments of the [DWC] shall be filed within 45 days of their entry.” The court held that both the April 16, 2018 and May 19, 2020 Orders were final judgments of the DWC and therefore Respondents’ appeal is time-barred. Respondents did timely appeal the April 16, 2018 order awarding temporary disability benefits, which the court affirmed. The court stated that there is no reason for continued discussion of that Order, and Respondent’s appeal of the May 19, 2020 order istime-barred, as the time to appeal that Order expired on June 29, 2020. Finally, the court notes that at no point in the underlying proceedings did Respondents raise an objection or move to vacate the May 2020 award, and the challenge is raised for the first time in the instant appeal.
Affirmed.
CAUSATION
Pace v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division
No. A-2685-20; 2022 WL 16709530
Decided: 11/04/2022
Background:
Pace was employed as a maintenance janitor for the Lower Township Board of Education. Prior to August 2017, he never had any complaints or treatment related to his neck. On August 21, 2017, Pace fell into an uncovered manhole on school property. Afterwards, he reported neck and back pain. Pace treated with his workers’ compensation doctor, Dr. Glass, who eventually ordered cervical and lumbar MRIs. The MRI of Pace’s neck revealed herniated discs at four levels, requiring immediate neck surgery instead of the lumbar surgery originally proposed. Dr. Glass performed a three-level cervical fusion of Pace on August 1, 2018, after which Pace was unable to lift more than 10 pounds, causing him to be unable to return to work.
On October 10, 2018, Pace applied to the Board for accidental disability retirement benefits. The Board denied Pace’s application, finding his disability was not a direct result of the August 2017 incident, but was the result of pre-existing disease alone, or that was aggravated or accelerated by the incident. Pace appealed, and the matter was transferred to the Office of Administrative Law. Dr. David Weiss testified on behalf of Pace, and Dr. Arnold Berman testified on behalf of the Board. On February 8, 2021, the ALJ determined Pace was entitled to accidental disability retirement benefits. She further concluded that Dr. Berman’s findings were not substantially supported by the record, and that Dr. Weiss was more credible.
On March 17, 2021, the Board rejected the ALJ’s determination, and found that “Pace failed to meet his burden of proof because: 1) he had neck issues prior to the incident; 2) both experts agreed that Mr. Pace had aggravated pre-existing conditions and a cervical surgery that combined to cause his disability; 3) the ALJ applied a ‘but for’ standard, which Dr. Weiss disagreed with, that is not applicable and relied on a hearsay document created by a physician not subject to direct or cross examination, which should be given zero weight in rendering a decision; and 4) Dr. Berman, the better credentialed medical expert, should be given more weight because he reliably explained how the mechanism of injury could not have caused the seen herniations.” Pace appealed the Board’s denial.
Holding:
Accidental disability retirement benefits require that an employee show that he is “permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties.” The court refers to the Gerba case, which held that an applicant for accidental disability retirement benefits only needs to show a traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability. (Gerba v. Board of Trustees, Public Employees’ Retirement System, 83 N.J. 174 (1980)).
The court stated that based on the review of the record, they are satisfied that the Board’s decision was arbitrary, capricious, and untethered to the credible evidence in the record before the ALJ. The court agrees with the ALJ that Pace’s cervical fusion was substantially caused by the August 2017 incident. The court also noted that there is no evidence in the record that Pace had any injury or treatment to his neck prior to August 2017, and there is nothing in the record to support the conclusion that Pace received medical treatment for his neck prior to the August 2017 work incident, and therefore he is entitled to an award of accidental disability retirement benefits.
Reversed.
Kim v. Board of Trustees, Police and Firemen’s Retirement System
Superior Court of New Jersey, Appellate Division
No. A-0776-20; 2022 WL 16825484
Decided: 11/09/2022
Background:
On May 11, 2011, petitioner filed an application for accidental disability retirement benefits based on a July 18, 2008 incident. Kim alleged he had orthopedic, psychologic, and psychiatric residuals of injury to his left hand, anxiety, and depression. On July 18, 2008 he alleged he shot a crime suspect and since had anxiety, depression, loss of sleep and appetite, and adjustment disorder.
During a May 2012 meeting, the Board found petitioner was totally and permanently disabled from his duties as a result of the July 18, 2008 incident and granted ordinary disability retirement benefits. Accidental disability retirement benefits were denied because the disability did not result from “direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, and or a similarly serious threat to the physical integrity of the member or another person.” Kim appealed the decision. The Board reconsidered in December 2018, and again denied his application for accidental disability retirement benefits. The Board also reversed the finding that his disability was a direct result of the July 2008 incident, and determined it was multicausal.
An ALJ had a hearing in July 2019. Petitioner, petitioner’s expert Dr. Puig, and the Board’s expert Dr. LoPreto testified. The focus of the hearing was whether the 2008 incident was not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury and if that resulted from direct personal experience of a terrifying or horror-inducing event. Petitioner stated that the 2008 incident occurred when he heard shuffling of feet at a call, and saw a person point a gun at him, causing him to fire his weapon. After a short pursuit, petitioner found a man lying on the ground, and believed he had shot and killed him, but in fact, the person was unharmed, and no gun was found. Petitioner continued to work for the Camden City Police Department until 2011. Petitioner also testified that he experienced workplace harassment in connection with his Korean heritage.
Dr. Puig first saw petitioner in 2008, diagnosed him with PTSD after seeing him once, and opined he could not return to work. Dr. Puig next saw him in 2017, when he opined that petitioner was already chronically traumatized by the harassment, and the July 2008 incident was the catalyst that brought the PTSD symptomatology into chaos from which he has not recovered. Dr. LoPreto evaluated petitioner on January 18, 2012, and initially found petitioner to be totally and permanently disabled and this was a direct result of the July 2008 incident and not associated with or accelerated by a pre-existing condition. He did feel that a more appropriate diagnosis was acute stress disorder and not PTSD. After revieing Dr. Puig’s 2018 report, Dr. LoPreto issued an addendum, opining that no workplace harassment had been disclosed to him, and he could no longer attribute petitioner’s disability significantly and substantially to the incident in July 2008. Reports
In September 2020, the ALJ found that Dr. LoPreto was more credible than that of Dr. Puig, and that petitioner was not entitled to accidental disability retirement benefits, and affirmed the Board’s denial. Petitioner filed exceptions with the Board, and the Board adopted the ALJ’s decision denying his application for accidental disability retirement benefits. Petitioner appealed.
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Holding:
The court cites the Patterson case, which determined that the standard governing a claim for accidental disability retirement benefits is premised on a permanent mental disability resulting from a mental stressor without any physical impact. The court also cites Richardson, which held that the disability must have resulted from “direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person,” and limited accidental disability to stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances of Drs. Kelly and Glass were also submitted, neither of which mentioned workplace harassment.
The court held that the credibility determinations of the ALJ plus the undisputed facts support the ALJ’s determination that the petitioner did not meet the Patterson threshold because he did not prove that the July 2008 incident was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury. The court also held that petitioner failed to establish the Richardson standard that his disability was the direct result of a traumatic event. Therefore, the court stated that there was nothing arbitrary, capricious, or unreasonable about the Board’s adoption of the ALJ’s decision.
Affirmed.
SUMMARY JUDGMENT
Herrera v. Shoprite of Northvale, Inserra Supermarkets, Inc.
Superior Court of New Jersey, Appellate Division
No. A-1136-21; 2022 WL 16825972
Decided: 11/09/2022
Background:
Plaintiff stated he was employed by defendant for many years and suffered an injury at work. He claimed he notified a supervisor about the injury, who told him not to file a workers’ compensation claim and he would be terminated if he did not comply. Defendant fired plaintiff a few years later. Plaintiff alleged that defendant: 1) wrongfully terminated him; 2) subjected him to a hostile work environment in violation of the Law Against Discrimination, 3) discriminated against him based on his age, and 4) caused him emotional distress. Claimant alleged that a supervisor named Daniel Ortiz is the one who threatened to fire him, and his coworkers teased him about his age and made him do difficult tasks to prove he was not old. He also alleged that he was forced to work even though he was injured.
At the close of discovery, defendant filed for summary judgment, and provided documentation concerning plaintiff’s workers’ compensation claim. Defendant stated that after Thanksgiving 2016, plaintiff called out sick for several days, then reported he had injured his shoulder at the store before the holiday. In January 2017, an assistant store manager filed an accident report with NJM, defendant’s workers’ compensation carrier. That month plaintiff submitted a claim for temporary disability benefits. Plaintiff’s treating physician certified that plaintiff’s injury was not work-related. In April 2017, NJM denied coverage of plaintiff’s injury based at least partly on the physician’s certification. The State granted plaintiff’s application for temporary disability benefits.
Plaintiff was out of work between November 2016 and May 7, 2017, at which time plaintiff returned to work and was transferred to the produce department, which was less physically demanding than his prior position. Two years later, plaintiff told several supervisors that he planned to retire, and on his last day, May 31, 2019, his department threw him a retirement celebration. Plaintiff never filed a report regarding harassment to HR. Without producing any evidence, plaintiff opposed defendant’s motion for summary judgment, and in fact only disputed one of defendant’s undisputed facts.
After conducting oral arguments, Judge Harz granted defendant’s motion for summary judgment and dismissed all four counts of plaintiff’s complaint. This appeal followed.
Holding:
The court held that it is satisfied that Judge Harz properly granted summary judgment to defendant, and it affirms her opinion. The court adds that the material facts of the matter are not in dispute: defendant did not object to plaintiff filing a workers’ compensation claim, and in fact filed one for him; NJM denied the claim because plaintiff’s doctor certified he was not injured at work; and defendant helped plaintiff with his application for temporary disability benefits, gave him extended leave, and moved him to a less physically demanding area. Plaintiff was unable to identify any of the employees that he alleged harassed him, and could provide no additional details about their actions.
Affirmed.