ANTHONY J. BILOTTI & ASSOCIATES, LLC
PENNSYLVANIA WORKERS’ COMPENSATION
3/1/2023 – 3/29/2023
Teresa L. Fegley, as Exec. of the Est. of Paul Sheetz v. Firestone Tire & Rubber (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023
(1) Whether Section 2102 of the MMA applies to WC carriers and overrides the requirements of the WC Act and the Board’s Regulations that mandate insurers pay for/reimburse the cost of medical treatment that is reasonable, necessary, and related to an accepted work injury? (2) Whether the Board erred by concluding that Section 2102 of the MMA precludes reimbursement for medical marijuana to a claimant using medical marijuana to treat an accepted work injury when it has been determined that such treatment is related to the work injury and is reasonable and necessary? (3) Whether reimbursement of Claimant’s medical marijuana treatment would cause the WC carrier to violate federal law?
Claimant sustained an injury during the course and scope of his employment with Employer. As a result, thereof, Claimant received medical treatment which included two back surgeries. Due to the severe pain in his back and legs, Claimant’s doctor prescribed opiates and narcotics, including OxyContin. Decades later, at the recommendation of his doctor, Claimant began taking medical marijuana in 2019, with the hope of eliminating the need for the opiates and narcotics he had been taking. Medical marijuana afforded Claimant pain relief and reduced his need for the opiates and narcotics. As a result of taking medical marijuana, Claimant weaned himself off Diazepam and OxyContin. In 2019, a UR determination declared that Claimant’s medical marijuana use was reasonable and necessary. Subsequently, Claimant filed a Penalty Petition, alleging that Employer violated the WC Act by failing to pay for his medical marijuana treatment, despite that the UR Determination declared that such treatment was reasonable and necessary. The WCJ denied the Penalty Petition, concluding that Claimant failed to prove that Employer’s refusal to pay for the medical marijuana treatment violated the WC Act.
Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.
The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court also examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within this Commonwealth. Further, the MMA contains an immunity provision protecting patients from government sanctions. Moreover, the Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. As a preliminary matter, the Court held that the Employer did not waive Section 2102 of the MMA as a defense because Employers had raised such matters as a defense below. The Court also noted that, consistent with the rules of statutory interpretation, given that Worker’s Compensation carriers are insurers under the Insurance Law, they must also be held to be insurers for purposes of the MMA, and that the provisions of the MMA apply to WC carriers. Further, the plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” While the MMA mandates that nothing in the MMA shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law, “reimbursement” would not cause the WC carrier to violate federal law, or be at risk of facing federal prosecution, because, section 841(a) of the Federal Drug Act only provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Reimbursing Claimant for his out-of-pocket expenses for his lawful use of medical marijuana as a reasonable and necessary treatment for his work injury would not require Employer’s WC carrier to do any of the above prohibited acts.
Therefore, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. In support of this holding, the Court also noted that the MMA specifically mandates that no medical marijuana patients shall be denied any rights for lawful use of medical marijuana and that the WC Act provides employees a statutory right to WC medical expenses that are reasonable and necessary to treat a work injury.
Reversed and Remanded.
CONCURRING AND DISSENTING OPINION BY JUDGE FIZZANO CANNON
In a dissenting opinion, Judge Cannon, joined by Judge McCullough, concurred in the majority’s conclusion that Employer did not waive its ability to assert a defense of illegality. However, the dissent asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA, relating to insurers, provides that nothing in the act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.
Therefore, the plain language of the MMA does not require reimbursement for medical marijuana prescribed to a claimant to treat a work injury. The MMA does not expressly address “reimbursement” of medical marijuana costs, but rather, provides that the MMA cannot be construed to require an insurer to provide “coverage” of such costs. “Coverage” and “reimbursement” are two sides of the same coin and it makes no sense for Claimant to argue that reimbursement may be required where coverage may not. As for the federal Controlled Substances Act’s provision that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, an insurer reimbursing for medical marijuana costs under state law could be subject to federal prosecution, as either an aider/abettor or an accessory after the fact. The provider distributes and/or dispenses medical marijuana and necessarily violates federal criminal law by doing so. Further, the Court has previously held that, where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.
Edward Appel v. GWC Warranty Corp. (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023
Whether the Board erred by concluding that, based on the plain language of the Medical Marijuana Act (MMA), an insurer or employer cannot be required to pay for medical marijuana?
Claimant sustained a work-related herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease. Employer accepted Claimant’s injury via a Stipulation of Facts approved in a 2015 WCJ Decision. Claimant received extensive treatment for his work injury, including two lower back surgeries. Claimant continued to experience chronic low back pain and symptoms in his legs for which his doctor prescribed opioids. Claimant received a medical marijuana card and used medical marijuana while he was weaning himself off the opioids. The Claimant filed the Review Medical Petition seeking a determination that his use of medical marijuana was causally related to his work injury and an order directing Employer to reimburse him for the cost thereof. The WCJ partially denied the Review Medical Petition. The WCJ concluded that Claimant met his burden of proving that his use of medical marijuana was related to the accepted work injury, but that Claimant failed to prove that Employer must reimburse him for his out-of-pocket medical marijuana expenses pursuant to Section 2102 of the MMA, which does not require an insurer or health plan to provide coverage for medical marijuana. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.
The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides, that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court then examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within Pennsylvania. Further, the MMA contains an immunity provision protecting patients from government sanctions. The Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. The MMA provides that nothing in the MMA shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. While a plain reading of the statute does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either. Specifically, Section 2102 of the MMA does not prohibit an insurer or health plan from reimbursing payment for medical marijuana. The plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” Thus, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. The General Assembly intended that covered patients have access to the latest medical treatments. Any other interpretation would lead to an unintended, absurd result. Thus, because Section 2102 of the MMA does not prohibit insurers from covering medical marijuana, the WC Act mandates employers to reimburse claimants for out-of-pocket costs of medical treatment which has been found to be reasonable and necessary for their work-related injury. The WCJ concluded that the medical marijuana use was causally related to the work injury, therefore, the Employer was required to reimburse Claimant for his out-of-pocket costs under the WC Act.
Finally, since Employer is not prescribing marijuana, but only reimbursing Claimant for his lawful use thereof, Employer is not in violation of the Federal Drug Act.
DISSENTING OPINION BY JUDGE FIZZANO CANNON
In a dissenting opinion, Judge Cannon, joined by Judge McCullough, asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA legalized medical marijuana for the first time and in a limited manner; in doing so, it made clear that it was not to be construed to require insurance coverage of medical marijuana. This makes sense, since medical marijuana has not yet been approved by the FDA as safe and effective for use in medical treatment, and its use is not legal under federal law. The legislature, not the courts, must effect any change in the MMA’s stated policy and the balance struck regarding insurance coverage. Therefore, this Court must affirm the Board’s holding that the MMA cannot be read to mandate reimbursement for prescribed medical marijuana provided to WC claimants. The provider necessarily violates federal criminal law by distributing or dispensing medical marijuana. Where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.
IMPAIRMENT RATING EVALUATIONS
Charles McCloud v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum
Opinion Decided: March 29, 2023
Whether the Claimant’s TTD should have been reinstated as of the date of the original impairment rating evaluation (IRE) in 2012?
In 2003, Claimant suffered a work-related injury in the course and scope of his employment with the City of Philadelphia (Employer). Employer issued an amended Notice of Compensation Payable accepting the work injury. In 2012, Claimant underwent an IRE that found Claimant had a whole-body impairment of three percent. Thereafter, Employer filed a Petition to Modify Compensation Benefits, seeking to modify Claimant’s TTD status to partial disability status based upon the IRE. In 2014, the WCJ granted Employer’s petition pursuant to an agreement of the parties. Following Protz II, in which the Pennsylvania Supreme Court declared the IRE provision found in Section 306(a.2) of the Workers’ Compensation Act (Act) was an unconstitutional delegation of legislative power, Claimant filed a Reinstatement Petition seeking reinstatement to TTD status as of August 27, 2012, the date of the IRE. The WCJ granted Claimant’s Reinstatement Petition but, consistent with this Court’s decision in Whitfield, reinstated Claimant to TTD status as of November 26, 2019, the date Claimant filed his Reinstatement Petition. The Claimant appealed to the Board, and the Board affirmed.
In Whitfield, the Court held that claimants who file a reinstatement petition to have their disability status reinstated to TTD following Protz are only entitled to reinstatement as of the date of filing the reinstatement petition. Claimant falls into this category and his date of reinstatement is controlled by Whitfield. Claimant’s numerous arguments as to why he should be reinstated as of the date of the IRE are not novel and have been previously rejected by the Court. The Court has repeatedly declined to give full retroactive effect to Protz in circumstances, such as this, where the claimant was not actively litigating the change in their disability status at the time Protz was decided. Claimant’s disability status was properly reinstated to TTD as of the date he filed his Reinstatement Petition.
Deborah Reber v. R.E. Shenker/Little Lexington Farms (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 3, 2023
Whether Claimant is entitled to reinstatement of her total disability benefits retroactive to the date of her IRE? Whether the WCJ erred in applying Whitfield rather than the stricter evidentiary burden required by this Court in Rawlins?
Claimant sustained a work-related head injury and was awarded TTD benefits. In May 2010, Claimant underwent an Impairment Rating Evaluation (IRE). The IRE yielded a 36% impairment rating which fell below the statutory threshold under former Section 306(a.2) of the Act. Thereafter, Employer filed a notice of change to disability status (Notice of Change), which documented a change in Claimant’s disability status from “total” to temporary “partial” disability (TPD) based on the IRE results. Claimant did not directly challenge the IRE’s validity or the change to her disability status. Several years after Claimant’s change to TPD status, this Court issued its decision in Protz I, which did not strike former Section 306(a.2) in its entirety but remanded the matter to the Board with instructions that any IRE must adhere to the Fourth Edition of the Guides, which was in effect at the time the General Assembly enacted former Section 306(a.2). In March 2016, prior to the expiration of her 500 weeks of TPD benefits, Claimant filed a petition challenging her IRE as unconstitutional, because it had been conducted pursuant to the Sixth Edition of the Guides and sought reinstatement of TTD benefits as of her IRE date. While Claimant’s petition was pending, the Pa. Supreme Court issued its decision in Protz II, which struck former Section 306(a.2) from the Act in its entirety. In February 2018, the WCJ granted Claimant’s petition, reinstating her TTD benefits as of the date she filed for reinstatement. The WCJ concluded that because Claimant did not challenge the constitutionality of her IRE until after the decision in Protz I, she was only eligible for reinstatement as of the date she filed her petition, not the date of her IRE. In February 2019, the Board remanded to the WCJ to allow the parties an opportunity to present evidence and argument. The WCJ granted Claimant’s reinstatement petition as of the date that she filed for reinstatement. The WCJ found that Claimant satisfied her burden of proof under Whitfield through her own credible testimony that the previous work-related head injury was serious and created ongoing issues for daily living which prevented return to her pre-injury position.
The retroactive effect of the Protz decisions is settled. Here, Claimant did not challenge the constitutionality of her IRE initially, nor did she commence this litigation until after Protz I was decided. Thus, the WCJ correctly reinstated Claimant’s benefits as of the date she filed for reinstatement. Following an unconstitutional IRE, a claimant may establish that she is entitled to reinstatement to total disability status through credible testimony of her ongoing injury. In Rawlins, this Court distinguished Whitfield based on a stipulation entered between the parties. The claimant specifically agreed to a modification of his benefit status. The Rawlins distinction is inapplicable here because the Notice of Change does not constitute a stipulation. Claimant did not consent to the change in her disability status but, at most, simply declined to pursue a legal challenge to the modification, a perfectly reasonable decision considering the prevailing law at the time. Accordingly, the WCJ properly applied the Whitfield evidentiary burden. The WCJ properly reinstated Claimant’s benefits as of the date that she petitioned for reinstatement. Further, Claimant did not agree to the modification of her disability status; therefore, the WCJ properly required Claimant to establish her entitlement to reinstatement of her benefit status by introducing credible testimony of her ongoing injury.
David Smuck v. Dana Holding Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 22, 2023
Whether the Board erred as a matter of law in holding that Act 111 is to be applied retroactively to cases wherein the cause of action accrued/work injury occurred prior to the enactment of Act 111?
Claimant sustained a work-related injury in 2000. Employer issued a Notice of Compensation Payable and began paying Claimant temporary total disability (TTD) benefits. In 2020, Claimant underwent an IRE, which demonstrated a 10% impairment rating based on the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (6th edition AMA Guides). Employer filed its Modification Petition on June 4, 2020, requesting Claimant’s disability status be changed from TTD to temporary partial disability (TPD) benefits as of the IRE date. The WCJ concluded Employer met its burden of proof under Act 111 and granted Employer’s Modification Petition, modifying Claimant’s benefits from TTD to TPD effective the IRE date. The Board affirmed.
In response to our Supreme Court’s decision in Protz, in which the Court held the IRE provisions contained in Section 306(a.2) of the Act violated the nondelegation doctrine of the Pennsylvania Constitution, the General Assembly enacted Act 111 on October 14, 2018. While the IRE process remains substantially the same as it was before, Act 111 requires a physician use the 6th edition AMA Guides when performing an IRE and permits modification to partial disability status if a claimant has a whole-body impairment of less than 35%. The Court has previously considered and rejected arguments like Claimant’s regarding the retroactive application of Act 111. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial. The application of Act 111 did not automatically change Claimant’s disability status or otherwise deprive him of vested rights under the Act. Claimant had no vested right in his benefits as calculated at the time of his injury because there are reasonable expectations under the Act that benefits may change over time. Thus, Claimant’s argument that Act 111 is not applicable to his case because his injury occurred before Act 111’s enactment lacks merit.
MODIFICATION OF BENEFITS
Salvatore Taibi v. Borough of Slatington & Emp. Mut. Cas. Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided March 3, 2023
Whether the WCJ erred in modifying claimant’s wage loss benefits, as the market research associate position failed to consider Claimant’s need for a cane, and as the position was only available for a short period of time?
Claimant suffered a work injury to his right knee and lower back in 2012, while working as a police sergeant for the Borough of Slatington (Employer), which Employer accepted through issuance of a Notice of Compensation Payable (NCP). Based on the opinions from independent medical examinations (IME) of Claimant in 2018 and 2019, that Claimant could return to work in a sedentary capacity, Employer issued a Notice of Ability to Return to Work. Thereafter, Employer filed a petition to modify Claimant’s wage loss benefits (Modification Petition), based on the availability of work within Claimant’s physical restrictions. The WCJ modified Claimant’s workers’ compensation wage loss benefits based on Claimant’s ability to return to work and the availability of a position within Claimant’s physical restrictions. The Board affirmed.
The court was only concerned with whether the market research associate position with Solomon was not actually available, given Claimant’s need to walk or stand with the aid of a cane, as Claimant did not otherwise argue that he could not perform the duties of that position. At no point did employer’s witnesses, who were found to be credible, testify that the duties of market research associate could not be performed while using a cane.
The WCJ may not have explicitly found that Claimant could perform the duties of a market research associate while using his cane. However, based on the sedentary nature of the job and Claimant’s ability to perform those duties while sitting, such a finding was implicit. Further, there was evidence presented that the job with Solomon was available beyond the initial training period during which his wages would be funded by Employer’s workers’ compensation insurer. The Employer witnesses credibly testified that Solomon would pay Claimant’s wages after the training period, Claimant’s employment would be ongoing, and the market research associate position was a permanent one. Therefore, Employer presented substantial evidence to sustain its burden of demonstrating that Claimant’s earning power had increased, based on the availability of a job within Claimant’s physical, intellectual, and vocational abilities.
TIMELINESS OF NOTICE OF AN UNINSURED CLAIM
Walter Swierbinski v. Scranton Restaurant Supply and UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion.
Decided: March 20, 2023
Whether the Board erred in concluding that the UEGF was not liable for Claimant’s benefits because Claimant failed to timely notify the UEGF of his work injury, where Employer paid Claimant wages in lieu of workers’ compensation?
On October 10, 2017, Claimant suffered a work injury to his left wrist, right elbow, and right shoulder after falling down a flight of stairs while in the course and scope of his work as a restaurant equipment repairman. Claimant notified Employer of his work injury that day. He returned to work in a light duty capacity for a few weeks in January or February of 2018. Employer paid Claimant’s regular wages through June 2018, even though he wasn’t working. Claimant first became aware that Employer did not have workers’ compensation insurance in November 2017. Claimant filed a claim petition against Employer in 2019, seeking total disability benefits from October 10, 2017, and ongoing. On July 24, 2019, Claimant filed a Notice of Claim Against Uninsured Employer (Notice). Thereafter, on August 28, 2019, Claimant filed a claim petition against the Fund. The Fund filed an answer denying liability for Claimant’s work injury on the basis that Claimant failed to timely notify the Fund of his work injury. Counsel for the Fund acknowledged that Employer paid Claimant wages in lieu of compensation but asserted that Employer’s actions did not bind the Fund with respect to paying Claimant’s workers’ compensation benefits. Employer went out of business in early 2019 and had filed for bankruptcy. The WCJ granted the claim petition filed against the Fund. The WCJ found that, because Employer paid Claimant wages in lieu of compensation, the Fund was estopped from denying liability for Claimant’s work injury. The Fund appealed to the Board. The Board reversed, noting that Section 1603(b) of the Act barred the payment of compensation by the Fund if notice was not provided within 45 days. The Board held that amended Section 1603(b) applied retroactively unless a claimant had been paid compensation “under the Act or an award by the WCJ.” The Board reasoned that Employer’s payment of wages in lieu of workers’ compensation did not constitute compensation paid under the Act or pursuant to an award by a WCJ, in part because Employer had not formally accepted liability for Claimant’s work injury. Accordingly, the Board held that Claimant was required to notify the Fund within 45 days of the date he knew that Employer was uninsured, which occurred in November 2017. The Board reversed the decision of the WCJ to the extent it imposed liability upon the UEGF for the payment of Claimant’s workers’ compensation benefits. The Board’s order otherwise modified the WCJ’s decision to reflect that Employer was solely liable for payment of Claimant’s workers’ compensation benefits.
Per Section 4(2) of Act 132, the amendment to Section 1603(b) applies “retroactively to claims existing as of October 24, 2018, for which compensation has not been paid or awarded.” An employer voluntarily paying an injured employee wages in lieu of workers’ compensation benefits, and who failed to file a Notice of Compensation Denial, could not later deny that the employee’s injury was work related. Payments in lieu of compensation qualify as compensation paid or awarded under Section 4(2) of Act 132.
An employer effectively admits liability under the Act by paying wages in lieu of compensation. Further, payments made in lieu of compensation act to toll the statutory period for filing a claim petition under Section 315 of the Act, provided payments are not made for services rendered, but to compensate a claimant’s lack of earning power, “just as if they had been formal payments rendered under the Act.” The informality by which Employer tendered its payments in lieu of compensation is irrelevant under the applicable statutory provisions and case law. Employer continued to pay Claimant’s wages until June 2018, including periods during which Claimant suffered wage loss due to his work injury. These payments constitute compensation “paid or awarded” under Section 4(2) of Act 132. Claimant’s receipt of payments in lieu of compensation constitutes compensation “paid or awarded” under Section 4(2) of Act 132. The Board erred in concluding otherwise, and the Court reversed the Board’s order to the extent it concluded that Claimant’s claim petition against the Fund was barred by retroactive application of the amendment to Section 1603(b) of the Act and, based on that conclusion, reversed the WCJ’s decision to grant Claimant’s claim petition against the Fund. The Court affirmed that part of the Board’s order that granted the claim petition filed by Claimant against Scranton Restaurant Supply (Employer). Employer is primarily liable for payment of Claimant’s workers’ compensation benefits, including any reasonable and necessary medical expenses that are causally related to Claimant’s October 10, 2017 work injury.
The Fund is secondarily liable for payment of Claimant’s workers’ compensation benefits, including any reasonable and necessary medical expenses that are causally related to Claimant’s work injury, pursuant to the applicable provisions of the Workers’ Compensation Act.
Reversed in part and affirmed in part.
COURSE AND SCOPE OF EMPLOYMENT
William Broomall v. Alpha Sintered Metals, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 3, 2023
Whether Claimant’s left shoulder injury, which occurred at home, upon returning from therapy for his accepted right shoulder work injury, was causally related to that accepted injury?
Claimant injured his right shoulder while pulling on a wrench. Employer issued a Notice of Compensation Payable (NCP) for medical treatment only. As the result of the incident Claimant attended physical therapy. While Claimant was returning home from physical therapy, as he was getting out of his car, he slipped and fell on his icy driveway, sustaining an injury to his left shoulder. Claimant underwent surgery on his left shoulder. Claimant filed a review petition, seeking to have the left shoulder injury included as part of the original work injury. The WCJ denied and dismissed Claimant’s review petition on the ground that Claimant’s fall at home, following a physical therapy appointment, was not causally related to Claimant’s acknowledged right shoulder work injury. Claimant appealed to the Board, which affirmed the decision of the WCJ.
When an injured employee develops further physical or psychological difficulties, an employer is responsible not only for the direct and immediate consequences of a work- related injury, but also for injuries that are causally related to the accepted work injury. A claimant who seeks to amend a notice of compensation payable to include a new and different injury has the burden of proving that the original work injury caused the additional injury. A “but for” test has been used in certain instances to establish causation, in relation to the original injury, when a claimant sustains separate injuries from a subsequent dissociated event that he otherwise would not have sustained if it was not for a previously incurred work injury. Here, the Claimant did not sustain his left shoulder injury while driving directly to his physical therapy session. Travel to the appointment is necessary to attend an appointment. However, this Claimant was not furthering Employer’s interests at the time he fell because he was home. Claimant’s injuries occurred after Claimant had finished his physical therapy appointment, left the
facility, completed his return trip, and was standing outside of his house on his own snow and ice-covered driveway. All activity related to his therapy appointment had ended. The injury Claimant sustained at home was not causally related to the accepted work injury
Medical Revenue Associates v. Sue Ellen Kanefsky (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 22, 2023
Whether the WCJ abused its discretion on awarding a penalty as Claimant’s most recent penalty petition, should have been dismissed?
Claimant, a medical biller, sustained a disabling work-related injury when she fell on black ice in Employer’s parking lot in 2015. She filed a claim petition in 2017, which Employer contested. A WCJ granted her claim petition in 2019. The WCJ also granted Claimant’s penalty petition based on Employer’s failure to timely file responsive documents with the Bureau of Workers’ Compensation (Bureau) when it had actual notice that Claimant had been injured. Shortly thereafter, in 2019, Employer’s insurer drafted a third-party settlement agreement relating to Claimant’s $650,000 resolution of a third-party claim arising from the 2015 incident. The agreement, which was never finalized because Claimant did not sign it, did not include an accrued lien amount based on wage benefit payments already made by Employer. The agreement indicated that after deduction of attorneys’ fees and litigation expenses from the third-party recovery, $370,988.66 would remain against which Employer could secure a subrogation interest. Employer’s calculations indicated that it would be responsible for 42% of Claimant’s future benefits until its subrogation lien, the amount of which was unspecified in the document, was fully recovered. The parties agreed that Employer could refrain from payment of benefits based on the 2019 WCJ decision until after a voluntary mediation concluded. The mediation in early March 2019 was not successful and Claimant filed a second penalty petition on alleging that Employer failed to pay benefits in accordance with the 2019 WCJ decision. Employer began making payments to Claimant but unilaterally deducted amounts representing its subrogation interest. Employer subsequently filed petitions formally asserting its subrogation interest without indicating a specific amount that it had expended or sought to recover. In 2019, the WCJ issued an interlocutory order which directed Employer to pay Claimant’s due and outstanding benefits, but deferred payment of the penalty until the pending petitions were resolved. Claimant subsequently filed a third penalty petition, alleging that Employer still had not paid Claimant all the past benefits due and had wrongly reduced Claimant’s ongoing benefits unilaterally. In 2020, the WCJ issued a decision resolving Employer’s subrogation petitions and Claimant’s first and second penalty petitions for nonpayment. The WCJ denied Employer’s subrogation petitions, ordered Employer to pay past due benefits as well as ongoing benefits, both without a subrogation deduction, and granted Claimant’s first and second penalty petitions for nonpayment. Employer appealed this decision to the Board and requested supersedeas. The Board issued a supersedeas order in 2020 stating that Employer could defer payment of any outstanding penalties pending the Board’s merits decision but denying Employer’s request in all other respects.
Employer began paying Claimant’s benefits without subrogation deductions but did not pay Claimant any of the amounts it previously deducted. While Employer’s appeal was pending before the Board, Claimant filed another penalty petition. Employer argued that Claimant’s most recent 2020 penalty petition was precluded because there was no “new” misconduct alleged against Employer. In a 2021 decision, which underlies this appeal, the WCJ concluded that Claimant had successfully asserted new misconduct and imposed a 50% penalty against Employer. On June 3, 2021, just after the 2021 WCJ decision was issued, the Board issued its decision on Employer’s appeal of the WCJ’s 2020 decision.
The Board concluded that the WCJ had no basis to deny Employer’s petitions asserting subrogation rights and reversed the WCJ in that respect and remanded to the WCJ to determine the amount of Employer’s subrogation lien. The Board also vacated the 2020 WCJ’s award of penalties, directing the WCJ on remand to recalculate any outstanding penalties. On November 17, 2021, the Board issued its decision resolving Employer’s appeal of the 2021 WCJ decision, concerning Claimant’s most recent 2020 penalty petition. The Board affirmed, agreeing that Employer failed to comply with the Board’s 2020 supersedeas order.
There is no exception for subrogation in the law requiring employers to pay benefits in the absence of an agreement or order allowing them to evade that obligation. As such, an employer generally may not engage in “self-help” to reduce or withhold benefits payments. Noncompliance in this regard may, or may not, warrant a penalty, depending upon the facts. An employer’s decision to unilaterally reduce a claimant’s benefit payments to satisfy its subrogation lien technically violates the Act and may be subject to a penalty. The Courts have consistently treated the employer’s subrogation calculations as at least relevant to evaluating its overall conduct. An employer may be able to avoid a penalty, or have a penalty reversed, if a WCJ ultimately comes to the same conclusion as the employer in terms of the amount and terms of recoupment. However, where an employer unilaterally reduces payments and makes the correct calculations but commits additional misconduct, such as failing to properly assert subrogation rights so that the WCJ may properly calculate amounts due to the claimant, a penalty is more likely to be upheld. The matter is fact-sensitive and within the WCJ’s discretion. The WCJ, in the decision here under review, granted Claimant’s third penalty petition for nonpayment.
While, correct indemnity payments had resumed, the Employer did not pay Claimant the amounts it had previously deducted from her benefits payments, in the apparent belief that its subrogation claim and right to reduce payments would ultimately be vindicated. This was contrary to the Board’s 2020 supersedeas order. At the time the Board issued its 2020 supersedeas order, Employer had been ordered by the WCJ, in three previous decisions, to pay Claimant the full amount due without subrogation deductions. Rather than paying upfront and seeking reimbursement from the Supersedeas Fund after the fact, Employer assumed the risk that if it did not pay Claimant back for its previous deductions, it would be subject to a penalty. The imposition of a penalty is always within the WCJ’s discretion, and in the context of an employer’s unilateral subrogation deductions, the Court has upheld penalties where the WCJ determined some additional misconduct on the employer’s part, even if the employer’s calculations were ultimately correct. Here, the most recent WCJ order found that Employer violated the Board’s 2020 supersedeas order by failing to pay Claimant the back due amounts Employer had deducted from Claimant’s benefits, which had also been ordered in the previous WCJ opinions. Employer’s conduct here was egregious considering its disobeying repeated orders specifically directing it to repay the deducted amounts. The WCJ therefore did not abuse discretion by imposing the penalty.
NEW JERSEY WORKERS’ COMPENSATION
03/01/2023 – 03/29/2023
TERMINATION’S EFFECT ON ELIGIBILITY FOR BENEFITS
Judy Thorpe v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-0689-20; 2023 WL 2395067
Thorpe began working for the Juvenile Justice Commission (JJC) in April 2005. Following some incidents, in January 2008 the JJC directed Thorpe to undergo a fitness for duty evaluation. She refused to participate, and she was removed from employment for that reason in August 2008. Thorpe then pursued a series of legal actions following her removal, including her union filing a grievance, and an action in the Law Division for discrimination and unlawful retaliation, both of which upheld her termination. In 2018, Thorpe filed an application with the Board for ordinary disability benefits. The Board determined that her alleged disability was not the reason she stopped working in August 2008, and instead the record shows that she was not permitted to apply for disability retirement because she had been involuntarily removed from her employment. The Board determined that Thorpe was not eligible to apply for ordinary disability retirement benefits. She appealed, and an August 2020 decision concluded that because the JJC removed Thorpe from employment on disciplinary grounds, she was not eligible to apply for pension benefits. Thorpe appealed. Thorpe argues that the JJC should not have been permitted to require her to submit to a fitness for duty exam, and alternatively that she left her position because of an alleged disability.
The court stated that Thorpe’s arguments on appeal lack sufficient merit to warrant a written opinion. The court affirms for the reasons stated in the Board’s August 20, 2020 decision. The court held that there was no basis for disturbing the Board’s well-reasoned determination that Thorpe was not eligible for ordinary disability benefits. They stated that the record established that the JJC removed Thorpe from employment, and she was not successful in her challenges to that decision. The court also held that Thorpe did not leave her employment because of an alleged disability.
Faye Brown v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-0021-21; 2023 WL 2618718
Brown worked as a Family Services Specialist II for the New Jersey Department of Children and Families in the Division of Child Protection and Permanency (DCPP). While serving as a DCPP family specialist, petitioner had five accidents resulting in injury; a knee injury in 2013 requiring surgery, a subsequent shoulder injury, another knee injury in 2014, a back injury in 2017, and a fall in 2018 when she injured her knees, hips, and shoulder. Her job duties included trips to the office and court, carrying large client files, transportation of children to appointments, making home visits to client families, supervision of visits, carrying out child removals, finding placement homes for children, physical removal of children’s belongings, transportation of children for evaluation, and transportation of parents to treatment facilities. Petitioner applied for accidental disability retirement benefits. The Board denied her application and petitioner appealed, now seeking ordinary disability benefits. An Administrative Law Judge (ALJ) heard the matter on September 1, 2020. Petitioner testified, as did Dr. David Weiss as an expert on her behalf, and Dr. Arnold Berman as an expert on behalf of the Board. The ALJ’s opinion found Dr. Berman presented a more persuasive opinion as to Petitioner’s permanency and disability and opined that petitioner’s subjective complaints did not cause her to be permanently and totally unable to perform her job duties. The Board adopted this decision as final. Petitioner appealed, arguing that the Board’s final decision was arbitrary, capricious, and unreasonable, and she met her burden of proving she is totally and permanently disabled.
The court stated that they would consider two issues: “[c]ould the Board’s finding that petitioner was not totally and permanently disabled have been reached in sufficient credible evidence in the record? If not, did petitioner show by a preponderance of the credible evidence that she was totally and permanently disabled?” The court stated that in reaching its conclusions, the Board gave greater weight to Dr. Berman’s opinions than Dr. Weiss’s opinion, however, neither physician treated the petitioner, and instead relied on her voluminous medical history and her subjective complaints. Dr. Berman also premised his opinion that petitioner could work on the premise that her job was sedentary. The court states that the record is full of evidence that shows petitioner’s job was anything but sedentary. The court holds that based on the fact that Dr. Berman’s opinion that petitioner could work was based on a flawed assumption, there was insufficient credible evidence in the record to support the Board’s final decision. The court further concluded that the Board was arbitrary, capricious, and unreasonable in denying ordinary disability benefits. The court stated that the record shows there are no further issues of fact to be developed on remand that could shed further light on petitioner’s disability, and therefore the decision of the Board is reversed, and the court directs it to enter a finding of ordinary disability benefits for the petitioner.
IRREVOCABLE RESIGNATION’S EFFECT ON ELIGIBILITY FOR BENEFITS
Christopher Slimm v. Board of Trustees, Police and Firemen’s Retirement System
Superior Court of New Jersey, Appellate Division No. A-3183-20; 2023 WL 2604113
Slimm worked as a police officer for Winslow Township. In October 2018, he applied for accidental disability retirement benefits, alleging he suffered from PTSD following an incident where a suspect opened fire during a vehicle pursuit. Slimm refused to return to work after being ordered to in December 2018, and a disciplinary action was served on Slimm charging him with several offenses including failure to return to work. On January 29, 2019, Slimm and the Township entered into a written settlement, wherein the Township would dismiss the disciplinary action in return for Slimm’s resignation and agreement to not seek re-hire or reinstatement. The Board advised Slimm that it would not process his application for accidental disability retirement benefits, stating because he left his employment based on the voluntary settlement agreement, he was not eligible for a disability pension. Slimm appealed, and the Board sent the matter to an Administrative Law Judge (ALJ) for consideration. The Board filed a motion for summary decision because the facts were not in dispute and the question presented was solely one of law. The ALJ granted the Board’s motion, and the Board adopted the ALJ’s decision. Slimm followed with this appeal, arguing that the Board erred by failing to consider his application for accidental disability retirement benefits.
The court analogizes the instant case to the case of Cardinale. In Cardinale, the appellant voluntarily and irrevocably resigned from his position as a police officer after being suspended for a positive drug test. This court held that when a PFRS member voluntarily and irrevocably resigns from active service, they are ineligible for disability retirement benefits and his claimed disability was irrelevant because an officer who irrevocably resigns cannot legally be returned to that position if he ever recovers from his disability, and thus is not eligible to apply for benefits. In this case, it is undisputed that Slimm irrevocably resigned from his position as a police officer, which automatically made him ineligible for disability retirement benefits. The court held that Slimm’s argument that he resigned due to his disability does not require a different result for two reasons. First, an irrevocable resignation automatically made him ineligible for retirement benefits. Second, even assuming a resignation based on a disability would make him eligible to apply for benefits, he did not sustain his burden of proving his resignation was based on his alleged disability, and the evidence including the settlement document he signed, establish it was to avoid litigating the pending disciplinary charges. Finally, the court held that there is no statutory basis for Slimm’s argument that he could satisfy NJSA 43:16A-8(2) by agreeing to waive his right to disability pension benefits if he were to recover from his disability, and the court rejects that argument.
Ralph Nunez v. Middlesex County College
Superior Court of New Jersey, Appellate Division No. A-0484-21; 2023 WL 2592906
Plaintiff began worked at Middlesex County College (College) beginning in 1996. On September 1, 2017, plaintiff reported a work-related injury to his left shoulder and was on leave until April 11, 2018. On April 19, the College lodged a disciplinary complaint against him for working elsewhere while on workers’ compensation, theft, falsification of records, possession of a controlled dangerous substance, and violations of the public trust. A hearing was held, and plaintiff was ultimately terminated. Plaintiff answered no on his employment application in 1996 where it asked if he had ever been convicted of a crime. He was convicted of conspiracy to possess CDS in 1997, however, nothing in the College’s policies or the CNA required an employee to self- report a criminal conviction. Surveillance was conducted of plaintiff for seventeen days in September 2017 after his work injury. Sixteen of those days showed no involvement in work-related activity, but on the seventeenth day, plaintiff was observed arriving at a private residence that appeared to be under renovation, retrieving something from his car, and entering the residence. Plaintiff filed a complaint alleging that the College violated New Jersey’s Law Against Discrimination (LAD) and the anti-retaliation provision of the Workers’ Compensation Act (WCA). The Law Division judge found that the termination was not motivated by retaliation, instead it was motivated by a finding by the College that their employee engaged in fraud. He granted the College’s motion for summary judgment and dismissed plaintiff’s complaint. Plaintiff appealed and argues that the judge failed to conduct any analysis and substituted his own opinion for that of the trier of fact. Plaintiff contends that applying proper summary judgment standards and relevant precedent, he did establish a prima facie case of discrimination under the LAD and WCA.
This court outlines the requirements to establish prima facia cases of discriminatory discharge, disability discrimination, and retaliation, and held that the motion record contains sufficient evidence of a prima facie claim under all three LAD causes of action, though his failure to accommodate claim is limited. For the purposes of defeating summary judgment, the court held that plaintiff produced sufficient evidence on the failure to accommodate claim limited to the period between when he was able to return to light duty, and when he did return to work without restrictions. The College’s argument is that plaintiff was terminated for legitimate non-discriminatory reasons namely that he falsified his employment applications and worked elsewhere while on medical leave. The court held that providing plaintiff with the favorable evidence and inferences in the motion record, he carried his burden for purposes of defeating summary judgment.The court held that plaintiff had not been convicted of a crime when he applied for a position at the College in 1996, so his answer on the application was truthful, and the College has not demonstrated that plaintiff was obligated to notify it of his later convictions. Additionally, the court held that there are disputed material facts as to whether plaintiff was working at another location while on leave.The court reversed the order granting the College summary judgment on plaintiff’s LAD claims and remanded the matter for trial on plaintiff’s allegations of disability discrimination, failure to accommodate, and retaliation. The court affirmed the dismissal of plaintiff’s LAD discrimination claim based on perceived disability.
Affirmed in part, Reversed in part.
Assembly Bill No. 1474/S5ll
New Jersey governor Phil Murphy signed Assembly Bill A1474/S511 into law on February 6, 2023. This bill addresses temporary workers and establishes employment protections for those workers.
This bill defines temporary laborers as a person who contracts for employment in a designated classification placement with a temporary help service firm.
Designated classification placement means an assignment of a temporary laborer by a temporary help service firm to perform work in any of the following occupational categories as designated by the Bureau of Labor statistics of the United States Department of Labor:
• Other Protective Service Workers
• Food Preparation and Serving related Occupations
• Building and Grounds Cleaning and Maintenance Occupations
• Personal Care and Service Occupations
• Construction Laborers
• Helpers, Construction Trades
• Installation, Maintenance, and Repair Occupations
• Production Occupations
• Transportation and Material Moving Occupations
• Any successor categories as the Bureau of Labor Statistics may designate
Temporary help service firm is defined as any person or entity that operates a business which consists of employing individuals directly or indirectly for the purpose of assigning the employed individuals to assist the firm’s customers in handling temporary, excess, or special workloads, and who, in addition to the payment of wages or salaries to the employed individuals, pays federal social security taxes and State and federal unemployment insurance; carries workers’ compensation insurance as required by State law; and sustains responsibility for the actions of the employed individuals while they render services to the firm’s customers.
Requirements for Records
This bill requires a temporary help service firm to provide the temporary laborer a statement in English and in the language identified by the employee as their primary language containing the following information:
• the name of the temporary laborer
• the name, address, and phone number of the temporary help service firm, or the contact information of the agent facilitating the placement; its workers’ compensation carrier; the worksite employer or third party client; and the Department of Labor and Workforce Development
• the name and nature of the work to be performed
• the wages offered
• the name and address of the assigned worksite of each temporary laborer
• the terms of transportation offered to the temporary laborer (if applicable)
• a description of the position and whether it requires any special clothing, protective equipment or training
• whether a meal or equipment is provided
• the schedule and length of the assignment
The temporary help service firm is also required to keep records relating to sending one or more persons to work as temporary laborers, including:
• the name, address, and phone number of the third party client, including each worksite
• for each laborer: the name and address, specific location sent to work, type of work performed, number of hours worked, hourly rate of pay, and the date sent
• the name and title of the individual(s) at each third party client’s place of business responsible for the transaction
• any specific qualification of a temporary laborer
• copies of all contracts with the third part client and copies of all invoices
• copies of all employment notices
• the amount of any deductions taken from the temporary laborer’s compensation for food, equipment, withheld income tax, withheld Social Security deductions, and all other deductions
• verification of the actual cost of any equipment or meal charged to the temporary laborer
• the race, ethnicity, and gender of each temporary laborer or applicant
• any additional information required by the commissioner
The temporary help services firm also must provide temporary laborers with a detailed itemized statement on their paycheck stub or a form approved by the Commissioner listing the contact information for each third party client where the laborer worked, the number of hours worked at each third-party client, the rate of pay including overtime or bonuses, the total earnings for the pay period, the amount of each deduction, and any additional information required by the commissioner.
Rules Regarding Pay and Transportation
A temporary help service firm or third-party client, or contractor or agents of either, are prohibited from charging a fee to a temporary laborer to transport them to or from the designated work site.
A temporary staffing firm must hold the daily wages of the temporary laborer and make weekly, bi-weekly, or semi-monthly payments at the request of the temporary laborer.
A temporary services firm cannot charge a temporary laborer for cashing a check issued by the temporary help service form. Additionally, the total amount deducted for meals and equipment cannot reduce the temporary laborer’s earnings to fall below the state or federal minimum wage, whichever is greater. A temporary laborer ego is contracted by a temporary help services firm to work at a third-party worksite who is not utilized by the third-party client shall be paid as minimum of 4 hours of pay at the agreed upon rate.
A temporary help service firm cannot restrict the right of a temporary laborer to accept a permanent position with a third party client, restrict the right of the third party client to offer employment to a temporary laborer, or restrict the right of a temporary laborer to accept a permanent position. For any other employment.
This bill requires temporary staffing firms to pay temporary laborers assigned to work for a third-party client the same average rate of pay and equivalent benefits as a permanent employee performing the same or similar work of the third-party client, the performance of which requires equal skill, effort, and responsibility, and performed under the same working conditions.
It is a violation for a temporary help services firm to retaliate against a temporary laborer for exercising any rights granted under this bill. The termination or disciplinary action by a temporary help services firm against a temporary laborer within 90 days of the person’s protected rights under this bill shall raise a rebuttable presumption of having done so in retaliation for the exercise of their rights, and such a retaliation will subject the temporary help services firm to civil penalties.
A temporary laborer alleging retaliation the relief afforded under this bill is the greater of all legal or equitable relief available, or liquidated damages equal to $20,000 per incident of retaliation, as well as reinstatement, attorney’s fees and costs.
This bill also provides to individuals a right of civil action in Superior Court if they are aggrieved by a violation of these rights.
The right of an aggrieved person to bring an action under this section terminates upon the passing of six years from the final date of employment by the temporary help service firm or the third party client or upon the passing of six years from the date of termination of the contract between the temporary help service firm and the third party client.
4866-4952-3546, v. 1