PENNSYLVANIA WORKERS’ COMPENSATION CASE SUMMARIES
12/01/2022 – 12/21/2022
MEDICAL FEE REVIEW
State Workers’ Ins. Fund v. Harburg Medical (Bureau of WC Fee Review Hearing Office)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: December 15, 2022
Issue:
Whether a causal relatedness denial rendered the provider’s fee review application premature by operating as a denial of liability for the work injury?
Background:
In 2004, Claimant sustained various injuries in a work-related incident while in the employ of the Employer. Employer issued a notice of compensation payable (NCP) accepting various injuries sustained by Claimant. At some point, SWIF reimbursed Harburg $1,725 for certain medical supplies and equipment prescribed to Claimant but denied payment for a piece of durable medical equipment described as a memory foam queen mattress overlay with cover, which was billed at $2,199.95. SWIF denied liability for the prescribed treatment on the basis that a current medical report was required specifically documenting the relationship of the prescribed mattress overlay to the original accepted work injury. However, SWIF did not seek utilization review concerning the prescribed treatment. Harburg applied for fee review contesting SWIF’s nonpayment for the prescribed mattress overlay. The Fee Review Section determined that SWIF was not obligated to pay the cost of the prescribed treatment because the service had not been properly billed. Harburg requested a hearing to contest the Fee Review Section’s determination. The Hearing Officer reversed the Fee Review Section’s decision and ordered SWIF to reimburse Harburg for the cost of the prescribed mattress overlay. The Hearing Officer reasoned that Workers’ Compensation Regulation 127.208(e) is clear and unequivocal that seeking utilization review, within 30 days of receipt of the billing, is a condition precedent to withholding payment. Thus, the Hearing Officer determined that SWIF could not deny reimbursement for the prescribed mattress overlay without first challenging the reasonableness and necessity thereof through utilization review.
Holding:
The Court rejected SWIF’s assertion that WC Regulation 127.255, “expressly” requires dismissal of Harburg’s fee review application as premature on the basis of SWIF’s “causal relatedness” denial. Despite contending that its “causal relatedness” denial constituted a denial of liability for Claimant’s work injury pursuant to subsection (1) of WC Regulation 127.255, SWIF inconsistently asserts that the present dispute turns solely on Employer’s liability for a particular medical treatment. SWIF did not request utilization review.
Thus, SWIF failed to toll the 30-day period in which to remit payment for the billed durable medical equipment. SWIF’s assertion that its “causal relatedness” denial in fact contested liability for Claimant’s work injury under subsection (1) of the above cited regulation lacks merit, because SWIF accepted liability for Claimant’s work injury by means of an NCP. Rather, SWIF’s assertion that the prescribed treatment is not causally related to Claimant’s work injury disputes liability for the treatment. SWIF’s denial alone does not render Harburg’s fee review application premature, because SWIF has not filed a request for utilization review of the treatment. SWIF was obligated to seek utilization review to dispute liability for Claimant’s treatment in order to render Harburg’s fee review application premature, because SWIF’s defense that the prescribed mattress overlay was not related to Claimant’s work injury was just another way of stating that it was not a reasonable or necessary procedure for treating Claimant’s diagnosis.
President Judge Cohn Jubelirer issued a dissenting opinion, wherein she disagreed that this Fee Review Application was not premature due to SWIF’s failure to seek Utilization Review.
Affirmed.
UPMC Benefit Management Serv., Inc. v. United Pharmacy Services (Bureau of WC Fee Review Hearing Office)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: December 15, 2022
Issue:
Whether a causal relatedness denial rendered the provider’s fee review application premature by operating as a denial of liability for the work injury?
Background:
Claimant sustained a work-related injury. Claimant’s injury was accepted by a medical- only notice of compensation payable (NCP). In 2020, Claimant was prescribed compound cream with instructions to apply one to three pumps to the affected area two to four times daily, as needed. Between January and April 2020, Pharmacy issued three separate bills, each requesting payment of $2,249.98 for the compound cream dispensed to Claimant. UPMC denied payment on the basis that the prescribed treatment was not work related. Pharmacy filed applications for fee review pursuant to Section 306(f.1) of the Workers’ Compensation Act. The Fee Review Section denied each of Pharmacy’s fee review applications as prematurely filed on the basis that the issue of the causal relatedness of the prescribed compound cream to the work injury remained outstanding. Pharmacy requested a hearing to contest fee review determinations, asserting that the applications were not premature because Claimant’s injury was accepted by Employer, no party petitioned for utilization review, and UPMC’s 30-day period in which to remit payment following receipt of the disputed bills had lapsed. The Hearing Officer reversed the determinations of the Fee Review Section and ordered UPMC to issue payment plus statutory interest to Pharmacy for the medications dispensed to Claimant.
Holding:
None of the three prerequisites for deeming a fee review application premature has been met here. UPMC issued a medical-only NCP accepting liability for Claimant’s work- related injury. UPMC thereafter denied payment for the cost of the prescribed compound cream on the basis that the treatment was not causally related to Claimant’s work injury. Accepting liability for a work-related injury by means of an NCP does not preclude an insurer’s ability to question liability for a particular treatment. Either an employer or its insurer may file a petition for medical review of treatment contesting the causal relatedness of the prescribed treatment to the underlying work injury. In the alternative, either an employer or its insurer may petition for utilization review of the reasonableness or necessity of a prescribed treatment. Neither Employer nor UPMC pursued either means of recourse in the instant matter. Therefore, UPMC was obligated to dispute liability for Claimant’s treatment through the utilization review process in order to render Pharmacy’s fee review application premature. UPMC’s defense that the treatment was not causally related to Claimant’s work injury was just another way of stating that the compound cream was not a reasonable or necessary ‘procedure’ for treating Claimant’s diagnosis. President Judge Cohn Jubelirer issued a dissenting opinion, wherein she disagreed that this Fee Review Application was not premature due to SWIF’s failure to seek Utilization Review.
Affirmed.
MODIFICATION BASED UPON JOB AVAILABILITY
Kirk Wescoe v. Fedchem, LLC & SWIF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 7, 2022
Issues:
Whether the WCJ erred in granting Employer’s modification?
Background:
Claimant sustained a work-related injury to his lower back. Employer acknowledged the injury. Employer and the State Workers’ Insurance Fund (collectively, Respondents) filed a petition seeking to modify Claimant’s disability benefits based upon their labor market survey and earning power assessment. The WCJ denied Employer’s petition and awarded Claimant litigation costs. The Board agreed that Employer had failed to establish the existence of “vocationally suitable” work. On appeal to the Court, a panel determined that the WCJ had erred. The panel therefore remanded for further proceedings. On remand, the WCJ granted the petition.
Holding:
An employer may seek a modification of a claimant’s benefits by offering the claimant a specific job that he is capable of performing, or establishing earning power through expert opinion evidence, which is based on job listings with agencies of the department, private job placement agencies, and advertisements in the usual employment area. The employer bears the burden of proving the claimant’s earning power. A claimant need not receive a potential job offer in order for the employer to establish that the claimant has earning power. However, the jobs identified by the employer must be actually open and potentially available, not simply jobs that are already filled with existing employees.
Evidence of a job application alone is insufficient to meet the employer’s burden. If there is additional circumstantial evidence about a job application, however, such evidence may support a finding that the position is open and available. A claimant may refute the employer’s evidence by showing that the employer’s labor market survey was erroneous, or that the claimant’s actual experience with the employers identified in the employer’s labor market surveys shows that the positions were not available. In this matter, there was sufficient circumstantial evidence to corroborate Claimant’s application, thus satisfying Employer’s burden that the position remained open and available. A representative at the location indicated that he could not print the application but recommended that Claimant apply online for the position. Thereafter, Claimant testified that he applied for the job. Based on this testimony, and the WCJ’s credibility findings, the Board inferred that the position remained open and available. Therefore, the WCJ did not improperly shift the burden to the Claimant. The contested issue was the availability of suitable work. As the Board properly reasoned, Claimant did not prevail on this issue. Therefore, the Board appropriately reversed the WCJ’s award of litigation costs. There was no legal error in the Board’s affirmance of the WCJ’s finding that the position was open and available and its reversal of the WCJ’s award of attorney’s fees.
Affirmed.
Lower Moreland Township v. John MacDonald (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 19, 2022
Issues:
Whether, when calculating Claimant’s earning capacity, the WCJ misapprehended and disregarded the evidence and ignored the plain language in Section 306(b)(2) of the Act?
Background:
Claimant suffered a work injury while employed as a police officer. Employer accepted the work injury through issuance of a notice of compensation payable (NCP). In 2019, Employer filed a petition to modify Claimant’s benefits based on an earning capacity and labor market survey (LMS) which determined that Claimant had an earning capacity of at least $1,538 per week. The WCJ credited Claimant’s testimony regarding his physical limitations to the extent they were consistent with the opinions of employer’s expert, whose testimony the WCJ accepted in its entirety. The WCJ found that Claimant was well-suited for work in customer-oriented occupations, such as sales. The WCJ found that Claimant could earn $60,000 in an entry-level position per the LMS. Employer appealed to the Board, arguing that the WCJ erred in failing to consider all 17 positions identified in the LMS, that the WCJ incorrectly calculated Claimant’s earning capacity, and that the WCJ failed to issue a reasoned decision. The Board rejected Employer’s arguments and affirmed the WCJ. The Board concluded that the WCJ did not err in calculating Claimant’s earning capacity, as that issue is a question of fact for the WCJ, and the WCJ’s findings were supported by substantial evidence.
Holding:
The WCJ is the ultimate finder of fact and exclusive arbiter of credibility and evidentiary weight. The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, and the WCJ is not required to accept even uncontradicted evidence. So long as the findings of the WCJ are supported by substantial evidence, they must be accepted as conclusive on appeal. Employer’s argument that the WCJ somehow misapprehended the evidence or mischaracterized testimony was rejected, as unsupported by the record. As the ultimate finder of fact, the WCJ may accept or reject, in whole or in part, the testimony of any witness, even that which is uncontradicted, and this Court may not overturn his findings if they are supported by substantial evidence. Further, the assessment of a claimant’s earning power was a question of fact for the WCJ and an LMS indicating that the claimant could earn a range of salaries from $140 to $376.60 per week constituted substantial evidence supporting the WCJ’s finding that the claimant could earn the highest salary in that range.
Affirmed.
JUDICIAL DISCRETION
Amazon.Com Serv. LLC, American Zurich Ins. & Sedgwick v. Engel L. T. Roman (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 1, 2022
Issues:
(1) Whether the WCJ erred by relying on the equivocal and legally incompetent testimony of Claimant’s medical expert; (2) Whether the WCJ capriciously disregarded substantial competent evidence in finding that Claimant met her burden of proof; (3) Whether the WCJ failed to render a reasoned decision?
Background:
Claimant sustained an injury to her right leg during the course and scope of her employment with Employer. Employer issued a Notice of Temporary Compensation Payable (NTCP) acknowledging Claimant’s injury. Employer later filed a Termination Petition. Claimant subsequently filed a Review Petition alleging that the injury description was incorrect and that her condition had worsened. The WCJ granted the Review Petition and denied the Termination. The Appeal Board affirmed.
Holding:
Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists. An expert’s opinion will not be deemed incompetent simply because an expert testifies that a claimant’s work injury either caused an injury or aggravated a preexisting injury. Claimant’s expert’s testimony was competent as a matter of law, as it sufficiently definite and unequivocal to render it admissible. A capricious disregard only occurs when the WCJ deliberately ignores relevant, competent evidence. The WCJ is the fact finder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Neither the Board nor this Court may reweigh the evidence or the WCJ’s credibility determinations. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. The evidence must be viewed in a light most favorable to the party that prevailed before the WCJ. The pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Because the WCJ acted within his province, the WCJ did not capriciously disregard substantial, competent evidence in finding that Claimant met her burden of proof under the Review Petition. To satisfy the reasoned decision requirements, a WCJ must set forth the rationale for the decision by specifying the evidence relied upon and reasons for accepting it. The WCJ’s credibility determinations complied with the reasoned decision requirement because they contained more than just a conclusory statement regarding the experts’ credibility. The WCJ explained that certain testimony was more credible and persuasive than other testimony because it was consistent with Claimant’s credible testimony, and because Claimant’s treating physician was more familiar with Claimant’s experiences and symptoms. The WCJ explained why he rejected employer’s expert’s testimony. Accordingly, the WCJ rendered a reasoned decision.
Affirmed.
Columbia County Commissioners v. Kristie Rospendowski (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: December 1, 2022
Issue:
Whether an employer can offset an overpayment of workers’ compensation (WC) benefits paid for one work-related injury through a credit against an award of benefits for a subsequent work-related injury?
Background:
Claimant is a full-time deputy sheriff for Employer. On January 7, 2011, Claimant sustained a work-related broken right ankle. Claimant was off work for that injury off and on over a period of four years. In a modification petition filed by Employer related to the 2011 Injury, Employer sought to modify a supplemental agreement based on its overpaying Claimant $14,233.88 in wage loss benefits due to Claimant’s failure to disclose income from other employment and/or provide earnings data as required by the supplemental agreement. The WCJ held that Claimant had been unjustly enriched by the overpayment and that Employer was entitled to a recoupment of benefits. Ultimately, Claimant returned to full-duty work without wage loss in 2016, her wage loss benefits for the 2011 injury ended, and $10,333.88 of the overpayment amount remained unpaid.
Claimant subsequently sustained a different work-related injury, to her low back, on January 22, 2019. Employer stipulated that it would accept the injury as a medical-only claim, notwithstanding Claimant’s undisputed wage loss, because it wanted to recoup part of the overpayment from the 2011 injury as a credit against the benefits owed for the 2019 injury. The WCJ granted the Claim Petition. On the issue of the payment of wage loss benefits for this period, the WCJ held that Employer was not entitled to the requested credit against the wage loss benefits for the 2019 injury and directed Employer to pay Claimant. Employer appealed and the Board affirmed.
Holding:
The parties all agreed, there is no provision in the Act or its regulations that expressly allows the relief Employer seeks, nor is there a provision that prohibits it, and no court has granted an offset to recoup an overpayment for one work-related injury against the benefits of a subsequent work-related injury. However, the Court has found that WCJs have implied authority under the first paragraph of Section 413(a) of the Act to impose equitable remedies, such as restitution and recoupment, to avoid double recoveries and unjust enrichment. Section 413[(a)] does not expressly provide that a WCJ or the Board has equitable powers and the Act as a whole is silent on the question of equitable remedies. Section 413(a), however, gives a WCJ broad authority to modify a notice of compensation payable, award or agreement, and a WCJ may thereby reach the question of whether a party was erroneously overpaid or underpaid. Because Section 413(a) gives a WCJ the power to decide these difficult problems, which often may be resolved only by disgorging funds from the party who has been unjustly enriched, we believe that the authority to utilize the equitable remedy of restitution is implied in the statute. Under Section 413(a), in the absence of an existing agreement, there is no recoupment for an overpayment of benefits. If there was no agreement, the Court has concluded that Section 413(a) did not provide the WCJ the power to order a recoupment for an overpayment of benefits. The authority to order recoupment through a credit against future benefits is limited to situations where the overpayment and credit related to the same, existing agreement, for the same injury. As this requirement is not present in this case, Section 413(a) does not authorize a WCJ to grant Employer the credit it seeks. The fact that no recourse may exist under the Act does not authorize this Court to act outside its role to create a remedy that the General Assembly did not provide, or to apply a remedy that does not arise under a statutory provision. There was no error in denying Employer’s request for a credit against Claimant’s WC benefits for the 2019 injury for the overpayment of benefits related to Claimant’s 2011 injury.
Affirmed.
NOTICE AND VOLUNTARY RETIREMENT
JJ White, Inc., v. Kader Yahawi (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 2, 2022
Issues:
1. Whether the Board improperly concluded that Claimant provided adequate and timely notice under the Act? 2. Whether the claimant voluntarily retired?
Background:
Claimant was injured while lifting a bucket out of a hole, immediately feeling pain in his lower left side and back. Claimant stopped working and reported the injury to his union shop steward, Ed Harkins, that same day. Claimant filed a claim petition alleging that he sustained a work injury. Employer argued that Claimant did not satisfy the notice requirements of section 313 of the Act as he only reported his injury to the shop steward, Mr. Harkins, who never reported the alleged work injury to Employer.
Holding:
The Board did not err or exceed its authority in overturning the WCJ’s determinations of credibility and the weight to be accorded evidence, as those are the prerogative of the WCJ, not the Board. The claimant carries the burden of demonstrating that timely notice of an alleged injury was given. Sections 311 and 312 of the Act provide when and in what form a claimant must give notice to an employer in order to perfect his claim.
Notice of a work-related injury is required within 120 days of the injury. Notice of a work-related injury may be given to the immediate or other superior of claimant, to the employer, or any agent of the employer regularly employed at the place of employment of the claimant. A supervisory position is not the only requirement under the Act despite Employer’s policy. The Act also allows an agent of the employer or other superior of the claimant to receive a report of an injury. The undisputed evidence demonstrated that Mr. Harkins, the shop steward, performed several functions as an agent of Employer for purposes of accepting reports of work injuries from union employees. The Court determined that Mr. Harkins acted with authority on behalf of Employer and there was no error in the Board’s conclusion that the WCJ capriciously disregarded that evidence and failed to properly apply the provisions of section 313 of the Act. Claimant provided adequate and timely notice under section 313 of the Act.
A claimant who has been forced into retirement as a result of a work-related injury may continue to receive workers’ compensation benefits. An employer may seek a suspension of those benefits where a claimant voluntarily leaves the workforce rather than being forced into retirement because of the work injury. An employer bears the burden of showing that a claimant has retired. There is no presumption that a claimant has voluntarily retired from the entire workforce merely because a claimant has accepted some type of pension benefit. There is merely an inference that the claimant has retired. The factfinder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce. If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. The WCJ’s determination that Claimant did not retire from the entire workforce was based in part on his testimony that he was unable to earn a living after his injury, and he took the annuity as a lump sum in order to live. Moreover, Claimant credibly testified that he still pays union dues and attends monthly union meetings.
Affirmed.
COURSE AND SCOPE OF EMPLOYMENT
Lemont Blackmon v. Sodexo Global Services (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: December 7, 2022
Issue:
Whether an employee injured in an accident while driving home after receiving therapy for a prior work-related injury was injured in the scope of his employment?
Background:
Claimant suffered a work-related injury to his right elbow in August 2019 while working for Employer at West Chester University. That injury resulted in no wage loss but required physical therapy, for which Employer issued a medical-only notice of compensation payable. Claimant was receiving physical therapy several times a week at a facility in Ridley Park. Claimant and Employer reached an agreement by which on days he received therapy he would start work earlier in the day at 5:00 a.m., work some hours, leave for his therapy appointment in Ridley Park, and then be free to do as he pleased for the rest of the workday until his supervisor clocked him out. Claimant would be paid for a full workday, with the understanding that the therapy facility was close to his home in Philadelphia and that to return to West Chester University’s campus would leave him with little remaining work time. On September 20, 2019, after leaving work and going to therapy, Claimant was on his way home, with a brief detour to pick up his dog from a friend’s house. After picking up his dog, Claimant was involved in a motor vehicle accident while he was still on the clock at his job but free from further work responsibilities. The accident left him with extensive injuries which prevented his return to work. Claimant filed a claim for benefits for the injuries sustained in the accident. The WCJ denied that claim because she concluded that his injuries were not work-related. The Board affirmed.
Holding:
A claimant’s injury suffered while driving to an appointment necessary for treatment as a result of a work-related injury was work-related, and thus in the course of his employment, because, but for driving to his physician for treatment of his earlier work- related injury, claimant would not have been in a position to be involved in the accident which caused his further injuries. Claimant asked the court to extend this rule to cover those, like him, who are leaving a therapy appointment necessitated by a work-related injury as an alleged special circumstance in furtherance of the business of Employer.
However, this is distinguishable in that that claimant’s trip was to physical therapy for an earlier work-related injury, and thus qualified for the “special circumstances” exception to the general “going and coming” rule that an employer is not liable for injuries that occur while the employee is traveling off premises. Claimant had finished his physical therapy appointment and, although being paid, was left to his own devices to do as he pleased. Claimant’s workday was, for all intents and purposes, finished for the day, as he had concluded any activities that could be considered a special assignment for the employer or furthering the business of the employer. Claimant had no further obligation to Employer for the rest of the day. As such, the claim was not compensable.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
Jeffrey Chamberlin v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum
Decision Decided: December 6, 2022
Issues:
Whether the IRE process violated claimant’s rights under the Pennsylvania Constitution?
Background:
Claimant suffered an injury while employed as a Youth Development Counselor Supervisor at a juvenile detention facility. Employer issued a notice of compensation payable (NCP) which acknowledged Claimant suffered a work-related injury. Employer filed a petition seeking to modify Claimant’s benefits status from total to partial disability. Employer relied on an impairment rating evaluation (IRE). Claimant filed a review petition seeking to amend the description of his work injury. The WCJ entered an order granting Employer’s petition to modify Claimant’s benefit status from total to partial disability. Moreover, the order granted Claimant’s review petition in part. The Board affirmed.
Holding:
The Court reviews workers’ compensation orders for violations of a petitioner’s constitutional rights, violations of agency practice and procedure, and other errors of law, as well as whether substantial evidence supports the findings of fact necessary to sustain the decision. The WCJ is the factfinder in workers’ compensation matters and is entitled to weigh the evidence and assess credibility of witnesses. The WCJ provided a sufficiently “reasoned decision” under Section 422(a). The WCJ supplied findings of fact and credibility determinations with explanations for her determinations. Further, the Act’s current IRE provisions do not violate the Pennsylvania Constitution.
Affirmed.
Thomas Murray v. Lycoming Supply, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Decision
Decided: December 9, 2022
Issue:
Whether the WCJ committed an error of law by reinstating benefits as of the date claimant filed his Reinstatement Petition rather than the date of his 2010 IRE?
Background:
Claimant was working as a demolition laborer for Employer and suffered a low back injury. Claimant began receiving temporary total disability (TTD) shortly after his injury. Claimant underwent an IRE in 2010 which found that Claimant had a Percentage of Impairment Rating (Impairment Rating) of 13%. As his Impairment Rating was under 50%, the Bureau of Workers’ Compensation issued a Notice of Change of Workers’ Disability Status from TTD to temporary partial disability (TPD) on August 13, 2010.
Claimant did not appeal. In January 2020, Claimant received his final payment of TPD and on February 26, 2020, Claimant filed a Reinstatement Petition. Pursuant to Section 306(a.3) of the Act, on February 17, 2020, Claimant underwent another IRE. Relying on the IRE results, Employer filed a Petition to Modify seeking to modify Claimant’s benefit status from TTD to TPD. Claimant had an Impairment Rating of 11%. The WCJ found Claimant met his burden of proving his benefits should be reinstated. The WCJ granted Claimant’s Reinstatement Petition arising from the August 4, 2010 IRE effective February 26, 2020 (the date of filing). The WCJ also granted Employer’s Petition to Modify as of February 17, 2020, the date of the latter IRE. The Board affirmed the WCJ’s decision granting Claimant’s Reinstatement Petition and Employer’s Petition to Modify on October 20, 2021. Claimant appealed.
Holding:
The WCJ and Board committed no error of law by reinstating his benefits as of the date claimant filed his Reinstatement Petition rather than the date of his 2010 IRE. Claimant did not appeal the Board’s decision to grant Employer’s Petition to Modify.
Affirmed.
Wendy Johnston v. Sealed Air Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 12, 2022
Issue:
Whether the provisions of Act 111, pertaining to IREs, is constitutional?
Background:
Claimant sustained a work-related injury while employed by Employer. Employer issued a Notice of Compensation Payable. In 2018, a WCJ approved a Stipulation of Facts expanding the nature of the injuries. In 2021, Claimant underwent an IRE, provided for in Section 306(a.3) of the WC Act (Act), which resulted in a whole-body impairment rating of 27%. Employer filed the Modification Petition, seeking to modify Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted Employer’s Modification Petition. Claimant appealed to the Board. The Board affirmed.
Holding:
The Court rejected Claimant’s arguments as to constitutionality and retroactivity, based upon its prior precedent. The Court noted that the claimant was merely preserving the arguments for presentation to the PA Supreme Court.
Affirmed.
Lauren M. Sanders v. Recordtrak, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision Filed: December 12, 2022
Issue:
Whether Act 111 is an unconstitutional delegation to the AMA and violates article II, section 1 of Pennsylvania’s Constitution?
Background:
While in the course of her employment with Employer, Claimant sustained a work- related repetitive motion injury. In 2020, claimant underwent an IRE, as provided for in Section 306(a.3) of the Act. The IRE evaluator opined multiple diagnoses, and calculated Claimant’s whole-body impairment as 25%. Consequently, Employer filed a Modification Petition seeking to change Claimant’s disability status from total to partial. Claimant opposed the Modification Petition on the grounds that Act 111 is unconstitutional. The WCJ granted Employer’s Modification Petition and the Board affirmed.
Holding:
The Court rejected Claimant’s argument and held that Act 111 is not an unconstitutional delegation to the AMA and does not violate article II, section 1 of Pennsylvania’s Constitution. Further, the court noted that, an NCP should define compensable injury for purposes of this inquiry. However, such holding does not determine the range of impairments which may be due to such injury. It is the physician-evaluator who determines the injuries at the time of the IRE, not the NCP.
Affirmed.
Donald Stevenson v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision Decided: December 12, 2022
Issue:
Whether the retroactive effect and application of Act 111 violated the federal and state constitutions?
Background:
Claimant was injured in November 2011 in the course and scope of his employment for Employer as a corrections officer. Claimant was paid benefits pursuant to a notice of temporary compensation payable and various amended notices of compensation payable. Employer requested the designation of a physician to perform an IRE. A physician was so designated, who examined Claimant on July 13, 2020, and prepared an IRE report finding that Claimant had a 20% impairment rating. Employer filed a petition to modify compensation benefits based upon the 20% impairment rating assigned. In July 2021, the WCJ issued a decision and order granting the petition to modify benefits from temporary total disability to temporary partial disability effective July 13, 2020.
Holding:
The Court previously squarely addressed whether there is a vested right in continued receipt of temporary total disability that is violated by the IRE process and concluded that there is not. The Court stated explicitly that if the employer pursued a new IRE under Act 111 following the procedures of Section 306(a.3), it would be entitled to credit for the weeks of partial disability benefits paid prior to the effective date.
Affirmed.
EMPLOYMENT RELATIONSHIP – INDEPENDENT CONTRACTOR
Manjinder S. Tiwanna, Dec., by Balwinder Kaur, Dependent v. Jatt Friends, Inc., Kaolin Mushroom Farms, Inc., Uninsured Employers Guaranty Fund, and USA Freight, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 1, 2022
Issue:
Whether the WCJ’s factual findings as to Decedent’s employment status as an independent contractor were supported by substantial evidence?
Background:
Before June 1, 2018, Decedent was driving a tractor trailer pursuant to an independent contractor agreement with Jatt. Decedent signed a notice of termination, with an effective date of May 31, 2018, which indicated that he was “voluntarily terminating his contract for driving with Jatt ….” On June 1, 2018, Decedent signed an Independent Contractor Agreement with Race, wherein Race agreed to obtain delivery jobs for Decedent, Decedent agreed to pay Race a dispatch fee, and Decedent agreed to lease a tractor trailer from Race. The agreement also specified “[i]t is expressly agreed that Decedent shall always be acting as an independent contractor during the performance of any services under the Agreement. This Agreement does not constitute, and shall under no circumstances be construed as constituting, or creating, an employer/employee relationship between Race and Decedent.” Decedent died on June 5, 2018, due to injuries he sustained from a tractor trailer accident. At the time of his death, Decedent was transporting a load of mushrooms, which Kaolin subcontracted to Race.
Claimant/Mother filed Fatal Claim Petitions against Jatt and Race. Claimant alleged that she was living with and totally dependent upon her son. Shortly thereafter, Claimant filed claim petitions for benefits from UEGF against Jatt and Race. The UEGF then filed joinder petitions, seeking to add Kaolin and USA Freight as additional employers. Due to Race and Jatt’s failure to timely file an answer to Claimant’s Fatal Claim Petitions, the WCJ deemed the factual allegations in those petitions admitted. Based upon numerous factual findings, the WCJ determined that Claimant did not sustain her burden of proving that Decedent’s death was caused by an injury he sustained during his employment with one of alleged Employers and denied Claimant’s Fatal Claim Petitions. The Board affirmed.
Holding:
The Court reviewed the considerations in determining a claimant’s employment status, noting that, while no hard and fast rule exists to determine whether a particular relationship is that of employer-employee or owner-independent contractor, certain guidelines have been established and certain factors are required to be taken into consideration. These include (1) control of manner the work is done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) nature of the work/occupation; (5) skill required for performance; (6) whether one is engaged in a distinct occupation or business; (7) which party supplies the tools/equipment; (8) whether payment is by time or by the job; (9) whether work is part of the regular business of employer; and, (10) the right to terminate employment. Control over the work to be completed and the manner in which it is to be performed are the primary factors in determining employee status. Control exists where the alleged employer possesses the right to select the employee; the right and power to discharge the employee; the power to direct the manner of performance; and the power to control the employee. Moreover, payment of wages and payroll deductions are significant factors, as is provision of workers’ compensation coverage. The existence of an employment or independent contractor agreement is another factor to consider, but it is not, by itself, dispositive.
Although Race would be violating its contract with Kaolin by having Decedent transport Kaolin’s load as an independent contractor, this does not preclude a finding that Decedent was acting as an independent contractor. Nor does Kaolin’s transportation manager’s belief that Decedent was Race’s employee. Instead, these were merely factors in determining whether Decedent was Race’s employee. The WCJ extensively analyzed and weighed the testimony and documentary evidence in this matter. Each of the WCJ’s factual findings were supported by testimony or documentary evidence that the WCJ found to be credible. Therefore, the Board did not err in determining the WCJ’s findings of fact were supported by substantial evidence and that the WCJ did not commit an error of law when it determined Decedent was an independent contractor at the time of his death.
Affirmed.
STATUTE OF LIMITATIONS
Sueanne Keim v. PMC Pinnacle Hospitals (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 12, 2022
Issue:
Whether the WCJ erroneously concluded that the payment of medical expenses under a medical-only NCP does not toll the statute of limitations under Sections 315 and 413(a) of the WC Act?
Background:
Claimant was injured on April 4, 2017, while in the course and scope of her employment. Employer issued a medical-only NTCP. The NTCP converted to a Notice of Compensation Payable (NCP). Claimant filed a Claim Petition in 2021, more than 3 years after the injury, seeking partial disability benefits from April 4, 2017 through March 31, 2021, and total disability benefits from April 1, 2021 and ongoing. On August 18, 2021, the WCJ denied and dismissed the Claim Petition, finding that Employer’s medical expense payments did not toll the statute of limitations and, therefore, the Claim Petition was time barred. The Board affirmed.
Holding:
Section 315 of the Act mandates that in cases of personal injury all claims for compensation shall be forever barred, unless, within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition. Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of three years from the time of the making of the most recent payment prior to date of filing such petition. The effect of issuing a medical-only NCP is distinct from the effect of a WCJ ruling that a claimant has suffered a loss of earning power and granting a claim petition but immediately suspending benefits. Under Section 413(a) of the Act, a reinstatement petition must be filed within three years after the date of the most recent payment of compensation made prior to the filing of such petition. The payment of medical benefits by an employer does not constitute compensation for the purposes of Section 413(a). There was no evidence presented, nor any findings of fact made, to establish that Employer intended its medical expense payments to substitute for disability compensation. Similarly, there was no evidence presented, and no findings made, that Employer misled Claimant by only paying medical benefits, that it intentionally or unintentionally deceived her, or that it somehow lulled her into a false sense of security sufficient to toll the statute of limitations. Here, by issuing the medical-only NCP, Employer made its intent expressly clear that it would pay Claimant’s medical expenses but accepted no liability for wage-loss benefits. A claimant has three years from either the date-of-injury or the last payment of compensation to file a review petition or it is untimely. Where, as here, no disability compensation was paid, the date-of-injury controls.
Affirmed.
NEW JERSEY WORKERS’ COMPENSATION CASE SUMMARIES
12/01/2022 – 12/23/2022
BURDEN OF PROOF
Dennis Coaxum v. Board of Trustees, Police and Firemen’s Retirement System
Superior Court of New Jersey, Appellate Division No. A-0568-21; 2022 WL 17726234
Decided: 12/16/2022
Background:
Dennis injured his low back on July 18, 2017 while carrying a man down a narrow flight of stairs with his partner. He was sent to the workers’ compensation doctor, who prescribed him medicine and returned him to full duty with no restrictions. After two visits, Claimant complained to his supervisor, and he then returned for a third time, when he was referred for physical therapy and injections, and put on light duty.
Light duty eventually became an issue, as he was unable to take his prescribed medication and work. He stated he was advised that he either needed to retire and apply for accidental disability retirement benefits (ADRB), or be written up for failure to be medically cleared. On February 24, 2018, Dennis applied for accidental disability retirement benefits. The Board denied the application, and the matter was transferred to the Office of Administrative Law. The Administrative Law Judge (ALJ) decided that Dennis had not proven he was totally and permanently disabled and did not prove his injury was “undesigned and unexpected.”
Holding:
The court reviewed the testimony of Dennis’s expert, Dr. Shah, and the Board’s expert, Dr. Berman, and concluded that the ALJ’s findings, and specifically credibility conclusions, were supported by the substantial evidence in the record. Since the Board did not err in determining that Dennis failed to prove he was permanently and totally disabled, the court’s review would normally end there, however, they addressed whether his injury was “undesigned and unexpected.”
The court summarizes the Moran and Brooks cases cited by Dennis, which the court then distinguishes. The court held that Dennis was performing his normal job duties at the time of the incident, as he had training to carry people in the manner he was during the incident. Further, the court stated that the record did not contain any evidence that his injury arose from anything other than ordinary strenuous work effort.
The court held that the Board’s finding that Dennis is not totally and permanently disabled and the incident was not undesigned and unexpected was supported by credible evidence and not arbitrary, capricious, or unreasonable.
Affirmed.
CAUSATION & FIDUCIARY DUTY
Holm v. Purdy
Supreme Court of New Jersey 2022 WL 17587788
Decided: 12/13/2022
Background:
The administratrix of the estate of an LLC member (Holm) who died after falling at their workplace brought action against the LLC’s insurance broker (Purdy) and asserted claims of professional negligence and breach of fiduciary duty, stemming from the allegation that the broker did not advise the LLC that they could obtain workers’ compensation coverage for the member. A jury trial ensued, and the Superior Court, Law Division, Monmouth County granted the broker’s motion for an involuntary dismissal and motion for judgment at trial. The administratrix appealed, and the Superior Court, Appellate Division affirmed in part and reversed in part, and remanded the case for new trial. The broker petitioned for certification.
Robert Friedauer and his brother Walter owned Holmdel Nurseries from 1978, eventually forming an LLC in which they were each members owning 50%. Robert’s sons Christopher and Michael worked part-time at the nursery starting as teens, then became full-time employees after college. Defendant has decades of experience as an insurance broker, specializing in commercial insurance for agriculture-related businesses. He became the insurance broker for Holmdel Nurseries in 2002. From that time, he discussed with Robert the various types of insurance available, and Robert instructed defendant to obtain policies including workers’ compensation. For a year after workers’ compensation coverage became available for LLC members, Holmdel Nurseries obtained that coverage for Robert and Walter, however, after Robert broke his wrist at work, he and his brother decided it was not cost-effective to maintain workers’ compensation insurance.
Defendant testified that every policy renewal included the form by which the LLC could elect workers’ compensation coverage. Plaintiff denies that the LLC received the notices of election. From 2002 to 2012, Holmdel Nurseries provided no workers’ compensation coverage to LLC members, but Christopher and Michael were covered as employees.
In 2012, Christopher and Michael bought Walter’s 50% interest in the nursery. The agreement was retroactive to January 1, 2012, making Michael and Christopher no longer employees, but LLC members as of that date. On July 12, 2012, defendant had his annual meeting with Holmdel Nurseries management to discuss the LLC’s insurance needs. All parties agree that during that meeting, defendant did not tell Christopher or Michael that because they were now LLC members rather than employees, they were not covered by the workers’ compensation insurance or that the LLC could elect to purchase workers’ compensation insurance that would cover them.
On February 15, 2015, Christopher was at work preparing trucks for snowplowing. Michael stated that Christopher seemed completely out of it, and Christopher told him that he had slipped and hit his head so hard he saw stars. Michael later found Christopher dead in a truck.
Plaintiff filed this action in the Law Division, asserting professional negligence, and that defendant breached his duty to act as an insurance broker of reasonable skill and diligence by failing to recommend basic insurance coverage such as workers’ compensation, disability, or life insurance. After discovery, defendant moved for summary judgment, and plaintiff counter-moved for partial summary judgment, both of which were denied.
At trial, plaintiff testified, along with Robert and Michael, who stated that if they had been aware of the availability of insurance coverage for LLC members, they would have obtained such coverage. Two experts also testified on behalf of the plaintiff. Plaintiff also sought to introduce the autopsy report to prove that the death was work-related, but the trial court excluded the report. Defendant testified on his own behalf and had his own expert testify.
The trial court held that an insurance broker owes a duty to an LLC to inform them of the availability of workers’ compensation insurance, however, it rejected plaintiff’s argument that an LLC’s broker has a duty to inform individual LLC members of their right to elect workers’ compensation coverage. The court also found no evidence that Christopher would have decided that the LLC would provide workers’ compensation insurance to its members had he been aware of its availability, and found no evidence that Christopher suffered a work-related injury, and therefore could not decide if his death would have been compensable if they had insurance. The trial court granted defendant’s motion for an involuntary dismissal and judgment at trial. Plaintiff appealed, and the Appellate Division affirmed the trial court’s denial of plaintiff’s cross-motion for partial summary judgment and reversed the trial court’s grant of defendant’s motion for involuntary dismissal and motion for judgment at trial.
Holding:
The court held that they must consider the foreseeability of harm to a potential plaintiff and then analyze whether accepted fairness and policy considerations support the imposition of a duty. There are four factors they must weigh: 1) relationship of the parties, 2) nature of the risk, 3) opportunity and ability to exercise care, and 4) public interest.
The court stated that insurance carriers and brokers have a duty to advise insureds of their coverage needs where the insurer is aware of a particular peril, but a broker is not responsible for failure to procure coverage when there is no evidence that insured requested such coverage.
The court held that the fiduciary duty of a broker is constrained to the categories of insurance coverage that the broker undertakes to obtain for the insured, or the coverage necessitated by a particular peril known to the broker, and there is no duty to advise an insured about the many varieties of insurance available.
Regarding the first factor, the relationship of the parties, the court held that defendant was the insurance broker to Holmdel Nurseries for over a decade and was charged by the company to secure workers’ compensation policies every year. They further stated that by virtue of that role, he had a statutory obligation to ensure that the LLC received the mandatory notice, and Christopher was in the category of individuals who the Legislature intended to protect. Therefore, the relationship of the parties favors the imposition of a duty in this matter.
Regarding the second factor, the court held that the risk imposed on Christopher and his dependents were significant, as the trial record shows Christopher conducted potentially dangerous tasks in his job and raises the specter that he would suffer a serious work- related injury without workers’ compensation policy. Therefore, the court held that the facts support the imposition of a duty.
With regard to the third factor, the court held that defendant had both the opportunity and the ability to tell the LLC members about the availability of workers’ compensation coverage and the requirements to obtain it, and therefore the third factor favors the imposition of a duty.
Regarding the fourth factor, the court held that an insurance broker for an LLC, who is charged by the LLC to obtain workers’ compensation coverage, has a non-waivable duty to provide notice that such coverage is available to LLC members who actively perform services on behalf of the LLC, but that the coverage is only available if the LLC elects. Furthermore, the court held that because it is foreseeable that the failure to provide such notice may harm an LLC member of their dependents, the duty may extend to the LLC members eligible for workers’ compensation coverage. The court does state that the statute precludes the imposition of liability on broker absent proof of willful, wanton, or grossly negligent act of commission or omission by the broker. The court held that because the trial court’s grant of defendant’s motions was based mostly on its conclusion that defendant owed no duty to the LLC members, they agreed with the Appellate Division that the court erred when it granted the motions.
The court then addressed the trial court’s ruling on proximate cause. The court stated that they disagreed with the trial court’s assessment of the evidence, and a reasonable juror could have concluded that all three LLC members wanted to maximize insurance coverage for Christopher, the father of young children whose work was sometimes dangerous. The court further held that in order to award death benefits to Christopher’s dependents, a workers’ compensation judge would have to find that his death resulted from an accident arising out of and in the course of his employment and they disagree with the trial court’s conclusion that plaintiff presented no evidence that Christopher died in a work-related accident and therefore it did not need to reach the question of proximate
cause. The court held that the trial court should have reached the issue whether plaintiff’s proofs on the proximate cause of Christopher’s death were sufficient to warrant denial of defendant’s motions for involuntary dismissal and judgment at trial.
Finally, the court held that because the trial court did not recognize a duty for a broker to provide notice to an LLC member of the availability of workers’ compensation coverage, the trial court did not consider whether defendant caused damage by willful, wanton, or grossly negligent act of commission or omission, and the court remands the matter to the trial court for a determination of plaintiff’s claims under the willful, wanton, or grossly negligent standard. The court affirmed as modified the judgment of the Appellate Division and remanded the matter to the trial court for further proceeding in accordance with the opinion.
Remanded.
AWARD OF FEES
Garzon v. Morris County Golf Club
Superior Court of New Jersey, Appellate Division No. A-1100-21; 2022 WL 17882435
Decided: 12/23/2022
Background:
Petitioner, Garzon, worked for the Club for 3 years, preparing and serving food. On December 15, 2016, petitioner tripped over a box in the kitchen, injuring her neck, back, and left hand. The Club provided her with temporary disability benefits from the day after the accident to December 29, 2016, when she went on a two-week vacation to Colombia. The Club resumed payments as of January 25, 2017. The adjuster for the Club’s insurance carrier questioned petitioner’s doctor on how he could have extended her disability when she had left the country, thereby delaying her treatment. The doctor responded that her vacation had no bearing on her care or his recommendations, noting that the Club was closed and unable to offer her light duty work. The adjuster subsequently advised petitioner she could no longer treat with that doctor and had to seek treatment from a different medical practice.
In February 2017, petitioner filed a claim petition. The Club’s answer denied that her injuries had arisen out of the course and scope of her employment, as well as the nature, extent, and permanency of her injuries. Petitioner then filed a motion to compel the Club to pay her temporary compensation and medical treatment. A hearing was held in March 2017, after the end of the first day, the parties resolved the issues in petitioner’s motion and agreed the Club would pay temporary disability benefits for the period of December 29, 2016 through January 24, 2017, and would continue to authorize treatment. This was approved and petitioner was paid $1,880.84.
Petitioner’s treating physician later imposed permanent work restrictions, which caused the Club to stop the temporary disability benefits. However, after a December 2018 conference before a new judge, the Club agreed to reinstate petitioner’s benefits. The Club did not immediately restore the benefits, and in January 2019, petitioner moved to enforce the order to reinstate the payments. The Club did resume making temporary disability payments.
The trial began in August 2021 to determine the nature and extent of petitioner’s disability. Affidavits were submitted by both sides regarding counsel fees, and in October 2021, the judge issued an order approving settlement of the permanency issue and granting a permanent disability award of $164,577. The judge also granted counsel fees of $32,915, equal to 20% of the award, and assessed the entire fee against the Club. In connection with the 2017 motion to compel, the judge held that petitioner was entitled to a penalty for the withholding of the temporary benefits. Instead of basing the 25% penalty on the $1,880.84, the amount withheld, the judge assumed the petitioner had not been paid for four full weeks, and awarded a penalty on that amount, or $548.58. The
judge also approximated the total paid in temporary and medical benefits to be about
$390,000 and awarded petitioner 20% of that amount in counsel fees for the motion to compel, which is $78,000.
Regarding the 2019 motion to enforce, the judge asserted a penalty equal to 25% of the amount of the $5,564.17 of withheld benefits, or $1,391.04, and awarded $12,500 in counsel fees, which was the 25 hours petitioner’s counsel asserted he had worked multiplied by counsel’s suggested hourly rate of $500. The judge also assessed an additional penalty of $5,000 to be paid into the Second Injury Fund.
The Club appealed, arguing that the counsel fee awards were excessive, arbitrary, and abuses of discretion.
Holding:
The court held that the judge’s first step when determining a reasonable amount for attorney’s fees is determining the “lodestar” which is the number of hours reasonably expended multiplied by a reasonable hourly rate. In awarding petitioner attorney fees that were 20% of the permanent disability award, the compensation judge failed to make a full analysis of the fee submission and did not engage in a reasonableness analysis.
Therefore, the attorney fee award of $32,915 in connection with the permanency award is reversed and vacated.
The judge made the same error when calculating the fee award for the 2017 motion to compel. He calculated the 20% math and did not consider what fees were actually incurred in bringing the motion and if they were reasonable. Therefore, the $78,000 fee award for the motion to compel is reversed and vacated.
Regarding the 2019 motion to enforce, the judge issued a fee award based on petitioner’s counsel’s suggested hourly rate and total numbers of hours worked. The document stated that counsel spent a total of 25 hours of work performed in 2017, 2018, and 2019, so in awarding a fee for the 2019 motion based on all 25 hours, the judge was not awarding reasonable legal fees to enforce the order, and therefore the $12,500 fee award for the motion to enforce is reversed and vacated.
Reversed and Remanded.
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