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PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES

5/1/2023 – 5/31/2023

SUBROGATION – POLICE OFFICER

Christopher Alpini v. WCAB (Tinicum Township)*
Supreme Court of Pennsylvania – Published Opinion
Decided: May 16, 2023

 

Issues:

Whether an employer that paid Heart & Lung Act (HLA) benefits is entitled to subrogation from a claim in which the employee was injured and asserted motor vehicle negligence, and Dram Shop Act-based claims?

Background:

While working for Employer as a police officer, Claimant sustained work-related injuries when an intoxicated driver (Driver) struck Claimant’s patrol car with his vehicle. Employer accepted liability for the work injury.  Employer, however, paid HLA benefits to Claimant, and Claimant signed over his workers’ compensation wage loss benefits to Employer as required by the HLA.  Claimant and his wife filed a civil action against the third-party tortfeasors responsible for Claimant’s work-related injuries.  Claimant asserted a cause of action against Driver for negligence and separate causes of action against the Tavern Owners for violations of the Dram Shop Act.  Claimant and his wife settled their claims against Driver and Tavern Owners.  Thereafter, Employer filed a modification petition, seeking subrogation from Claimant’s third-party recovery relative to Tavern Owners only.  A workers’ compensation judge (WCJ) granted Employer’s modification petition, and both Employer and Claimant appealed to the Board. The Board affirmed the WCJ’s decision but remanded the matter to the WCJ to determine the method by which Employer would be permitted to recoup its subrogation lien.  In the remand decision, the WCJ upheld the right to subrogation from the Dram shop recovery.  The Board affirmed.  A three-judge panel of the Commonwealth Court affirmed the Board’s order.

Holding:

It was undisputed that Employer paid HLA benefits to Claimant, and that Claimant signed over his workers’ compensation wage loss benefits to Employer. It was also undisputed that Section 1720 precludes an employer from subrogating its payment of HLA benefits against a claimant’s third-party recovery in an action arising out of the maintenance or use of a motor vehicle.  In 1993 the General Assembly enacted Act 44.  Section 25(b) of Act 44 repealed the provisions of the MVFRL as they related to workers’ compensation benefits, thereby reinstating an employer’s right of subrogation with respect to workers’ compensation benefits in actions arising out of motor vehicle accidents.  However, the PA Supreme court subsequently held that Section 25(b) of Act 44 did not impact any anti-subrogation mandates pertaining to HLA benefits, and the MVFRL continues to preclude an employer from subrogating its payment of HLA benefits.  Further, the PA Supreme Court has already ruled that for purposes of the MVFRL, HLA benefits subsume workers’ compensation (WC) benefits, and thus barring WC subrogation. Claimant and his wife filed a single proceeding against both Tavern Owners and Driver. It is that proceeding, as a whole, and not the individual causes of action that Claimant and his wife asserted against Tavern Owners for violations of the Dram Shop Act, that constitute the “action” for purposes of Section 1720.  Additionally, this action originated, stemmed, and/or resulted from the motor vehicle collision involving Driver’s vehicle and Claimant’s patrol car.  The Court therefore concluded that the “action” through which Claimant asserted his Dram Shop Act claims against Tavern Owners “arose out of the maintenance or use of a motor vehicle” and, therefore, Section 1720 precluded Employer from subrogating against Claimant’s settlement of such claims.  Thus, the Employer was precluded from subrogating its payment of HLA benefits against Claimant’s third-party settlement of his Dram Shop Act claims with Tavern Owners because the action that Claimant and his wife filed against Tavern Owners “arose out of the maintenance or use of a motor vehicle.”  The court noted that employers are barred from subrogating in this context regardless of whether they are self-insured or insured by a third-party insurer, thereby eradicating any such distinction that had been observed in prior cases.

Reversed.

JUSTICE DOUGHERTY FILED A CONCURRING OPINION IN WHICH JUSTICE DONOHUE JOINED.

The concurrence fully joined the majority opinion’s statutory construction analysis and the holding.  The concurrence wrote separately only to elaborate on why Section 319 of the Workers’ Compensation Act does not permit the Township to subrogate against claimant’s third-party tort recovery, regardless of whether they are self-insured or insured by a third-party insurer.

 

 

JUSTICE WECHT, DISSENTED, and CHIEF JUSTICE TODD JOINED THIS DISSENT

The dissent felt that a critical distinction was that the Township was not self-insured for workers’ compensation. The Township’s insurer sent workers’ compensation payments to Claimant, who “received or collected” them, and then turned them over to the Township as required by the HLA. The payment of workers’ compensation benefits was not merely a legal fiction.  Instead, it was a meaningful transfer of funds, by which the Township’s insurer incurred a loss.

 

*              This is a highly significant case, as it not only mandates a consideration of the legal proceedings “as a whole” when determining whether the cause of “action” arose out of the “use of a motor vehicle,” but more importantly, eradicates any distinction that may have previously existed between self-insured and insured municipalities when looking at subrogation rights in such a context.

 

 

EXCLUSIVITY

 

Elite Care, Rx, LLC v. Premier Comp Solutions, LLC, et al.
Superior Court of Pennsylvania – Published Opinion
Decided: May 23, 2023

Issue:

Whether, whenever the issues raised have, as their ultimate basis, injuries compensable under the WC Act, must they be decided by a workers’ compensation judge or a fee-review Hearing Officer, rather than the Court of Common Pleas?

Background:

Insurers offer workers’ compensation insurance to employers to cover the costs of treatment and medication under the Workers’ Compensation Act for employees who suffer work-related injuries. The employees may choose to fill their prescriptions through Patient Direct Rx, a home-delivery pharmacy. After Patient Direct Rx fills the prescriptions, certain providers purchase the claims arising from these prescriptions i.e., the right to bill and collect from the insurance carrier, from Patient Rx for fair-market value. The Providers are then legally entitled to collect payment for the prescriptions from the insurance carrier and bear the risk of collection. Elite Care (a separate entity) serves as billing agent for the Providers and ensures their accounts receivable are properly paid. Elite Care contends that, when this lawsuit began, Insurers owed $548,035.28 in prescription fees for 110 different employees and that figure continues to accrue as more bills are being improperly denied. Elite Care believed that its “exclusive remedy” was through an Application for Fee Review with the Bureau of Workers’ Compensation. When the Medical Fee Review Section began ruling in favor of Elite Care, Insurers appealed those rulings to a Fee Review Hearing Officer and argued that the Fee Review Section lacked jurisdiction over this issue of whether Elite Care was an agent of these providers.  The Hearing Officer issued opinions and orders holding that the Fee Review Section lacked subject-matter jurisdiction and advised that Elite Care may wish to pursue other remedies, which may be available outside of the fee-review process.  Elite Care filed the instant civil action.  The trial court determined this case was not a workers’ compensation matter, but rather a claim for damages based on allegations of conspiracy and fraud, and that there was subject matter jurisdiction. Insurers filed a timely Petition for Permission to Appeal the interim order, which the appellate court granted.  A three-judge panel of the Court unanimously affirmed the trial court’s decision.  The Insurers were then granted en banc review.

Holding:

Insurers attack the trial court’s subject-matter jurisdiction based upon the Workers’ Compensation Act arguing that the Bureau has exclusive jurisdiction over this matter, because the prescriptions at issue treat work-related injuries.  The Superior Court determined that, in the Armour Pharmacy case, the Commonwealth Court improperly created jurisdiction in the Bureau even though the legislature had not.  The Superior Court held that the Commonwealth Court lacked the power to graft an extra-statutory scheme onto the WCA for the benefit of the putative provider. In attempting to effectuate due process, the Armour Pharmacy Court legislated from the bench. Therefore, this Court declined to follow Armour Pharmacy, in so far as it stands for the proposition that Elite Care may or should have sought redress within the Bureau.  Thus, the Workers’ Compensation Act does not provide for an administrative proceeding by or against putative providers or their billing agents in the Bureau. Such entities have no standing there, because the WCA does not confer it upon them. That statute has not divested the original jurisdiction of the courts of common pleas over matters such as the instant lawsuit.  Elite Care is a “person” interested in certain contracts with the Providers, and, therefore, it may request declaratory relief under the Declaratory Judgment Act.  The court of common pleas is the court of record for such an action to declare rights, status, and other legal relations whether further relief is or could be claimed. Additionally, Elite Care has filed claims of fraud, civil conspiracy, and unjust enrichment. Those claims fall within the exclusive, original jurisdiction of the Court of Common Pleas. Therefore, the trial court correctly ruled that it has subject-matter jurisdiction over the common-law causes of action in this case and the statutory action for declaratory judgment.

Affirmed.

CONCURRING OPINION

The concurrence believed that the result was correct but argued that the matter should have been disposed of based upon the Court’s precedent, without a consideration of whether the Commonwealth Court’s decision in Armour Pharmacy was correct.

DISSENTING OPINION

The dissent argued that the Court should have reversed the Trial Court as the exclusivity provision of the Workers’ Compensation Act (“WCA”) makes the WCA the worker’s exclusive remedy against his employer for an injury sustained in the course and scope of employment.

 

 

SPECIFIC LOSS AND FATAL CLAIMS

 

Kristina Steets v. Celebration Fireworks, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: May 5, 2023

Issue:

Whether specific loss benefits are payable following an injured worker’s death resulting from a work injury?

Background:

While working for Employer, an explosion occurred when Claimant inserted a fuse into a fireworks display causing her traumatic injuries. Employer filed a Notice of Compensation Payable accepting liability for Claimant’s injuries, and paid Claimant temporary total disability benefits. Claimant filed the Claim and Review Petitions seeking to define the nature and extent of her injuries, alleging therein that the loss of use injury was an injury separate and apart from the brain injury. Employer opposed both Petitions.  The WCJ granted the Claim and Review Petitions and amended Claimant’s work injuries.  The WCJ found that Claimant lost the use of her arms for all practical intents and purposes, and that the impairment was permanent. The WCJ declared that once Claimant’s total disability benefits ceased, Claimant would be entitled to specific loss benefits.  Employer appealed to the Board, which affirmed.  Employer appealed to the Commonwealth Court, which affirmed the Board’s order. (Steets 1). Thereafter, Claimant died because of complications from her work-related injuries. Employer ceased payment of total disability benefits upon Claimant’s death. Claimant’s estate filed the Claim, Review, and Penalty Petitions, seeking payment of Claimant’s funeral expenses and specific loss benefits.  The WCJ granted the Claim Petition and ordered Employer to pay Claimant’s funeral expenses.  The Estate appealed to the Board, which affirmed the WCJ’s decision.

Holding:

Because the General Assembly conditioned payment of specific loss benefits on a death by cause other than the work injury it intended to exclude death by the work injury.  Based on Section 306(g) of the Act and applicable precedent, when an employee dies due to a work injury while collecting total disability benefits and before specific loss benefits are payable, the only specific loss payments due are reasonable funeral expenses to be paid to the funeral home.  Here, Claimant was receiving total disability benefits, and was awarded specific loss benefits that would commence after her total disability ceased.  Claimant’s work-related injuries caused her death. She had no dependents with rights to either her total disability or specific loss benefits when she died. Under such circumstances, Employer’s only statutory obligation was to pay $7,000.00 in funeral expenses to the funeral home, which it did.  Section 306(g) of the Act provides that specific loss benefits can be paid to the same category of dependent persons listed in Section 307 of the Act, but only where the employee should die from some other cause than the injury.  There is nothing in the Act that requires an employer to pay specific loss benefits in a case where the injured worker died because of the work injury that caused the specific loss.  There is nothing in the language of the Act or in the case law interpreting the Act that supports the argument that the right to the specific loss benefit became vested when it was awarded by the WCJ in Steets I, or that any vested right passed from Claimant to her estate because the specific loss benefits were awarded prior to Claimant’s death. Claimant had no dependents and Employer is not obligated to pay the specific loss benefits.  Whether the worker dies of the work-related injury or some other cause, a benefit or advantage is preserved for the statutory dependents. The Act’s more generous treatment of dependents is not irrational and may reflect an effort to balance the cost of the WC program with the protection of those most vulnerable to the harm occasioned by work-related injuries.

Affirmed.

DISSENTING OPINION BY JUDGE CEISLER

The basis for the dissent was based upon the belief that Section 410 of the Workers’ Compensation Act authorizes the payment of specific loss benefits following the work-related death of a claimant.

 

 

SETTING ASIDE AN NCP – EDI ERROR

 

Jeffrey Ware v. Trustees of the University of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 15, 2023

Issues:

Whether the WCJ erred as a matter of law by granting Employer’s Review Petition to set aside the NCPs?

Background:

Decedent was employed by Employer as a researcher. On November 15, 2010, Decedent filed a Claim Petition alleging that repeated exposure to radiation in connection with his job caused gliosarcoma and brain tumors necessitating surgery. Decedent alleged that his last date of exposure was October 5, 2010, and his last date of employment was October 8, 2010.  Decedent died on October 23, 2011, during litigation of the Claim Petition. Claimant then filed a Fatal Claim Petition alleging that Decedent died of cancer caused by work-related radiation exposure and seeking benefits for herself and her two children with Decedent.  On June 4, 2012, Independence Blue Cross filed a Review Medical Petition requesting to intervene in the Claim proceeding and asserting a subrogation lien for Decedent’s medical treatment in the amount of $316,610.00.  On September 20, 2016, a Notice of Compensation Payable (NCP) was issued that recognized an October 5, 2010, injury described as “multiple head injury” and “occupational disease injury” attributable to repetitive exposure to radiation in connection with Decedent’s job. An amended NCP was issued a few days later, correcting the claimant’s date of birth.  On October 7, 2016, Employer filed a Review Petition requesting that the WCJ set aside the NCP and Amended NCP as materially incorrect.  Employer alleged that it had always denied all allegations of the Claim Petition and Fatal Claim Petition, and it was continuing to do so. Claimant filed a Penalty Petition alleging that Employer violated the Act by failing to pay benefits in accordance with the NCP and Amended NCP.  The WCJ granted Employer’s Review Petition and denied Claimant’s Penalty Petition, concluding that Employer proved the NCP and Amended NCP were not an admission of liability that Decedent sustained a work-related injury or that his death was work-related, and were not intended to accept the Claims. Rather, the NCP and Amended NCP resulted from an attempt to pay a legal bill and alter Decedent’s birth date through a newly implemented electronic system which had improperly coded the claim as compensable and that under the circumstances, the NCP and Amended NCP were void ab initio and stricken.  The WCJ denied the Claim Petition and Fatal Claim Petition, concluding that Employer successfully rebutted the statutory presumption of relationship.  The WCJ also dismissed IBC’s Petition seeking subrogation for the medical expenses it paid.  The Board affirmed.

Holding:

Employer provided substantial evidence the NCPs were materially incorrect at the time they were issued and that their very issuance was an error. The WCJ heard evidence about the computer systems the Bureau of Workers’ Compensation (Bureau) used and about the transition from one system to another. Electronic Data Interchange (EDI) is the electronic way of submitting claim information to the Bureau.  The manager of the EDI section of the claims management division of the Bureau, testified about the transition from the old system to the newer Workers’ Compensation Automation and Integration System (WCAIS) and that Decedent’s claim was always erroneously coded as compensable in the Bureau’s computer systems.  A senior account claims representative for the carrier testified he was dumbfounded when he changed Decedent’s birth date in the PMA system, and it generated a request to the Bureau and that he did not intend to produce new forms or to make any determination.  Two additional witnesses for Employer credibly explained they engaged EDI only to pay a legal bill and change a birth date, they had no intent to accept or acknowledge the Decedent’s claim as compensable, and the NCP was issued unintentionally.  Substantial evidence exists to support a finding the NCPs were materially incorrect when they were issued.   Further, the WCJ found, and the Board agreed, no obligation to pay ever existed as the NCPs were void ab initio, thus there was no violation.

Affirmed.

 

 

RES JUDICATA AND COLLATERAL ESTOPPEL

 

Pablo Munoz v. Jermacans Style, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 19, 2023

Issue:

Whether the WCJ erred by dismissing the Petitions based on technical res judicata ?

Background:

Claimant sustained a work-related injury which Employer accepted. Employer filed a Termination Petition seeking to terminate benefits following an independent medical examination (IME) of Claimant. The first WCJ held a hearing on the Termination Petition. Claimant did not file an answer and did not appear or otherwise defend against the allegations. At the hearing, the first WCJ accepted Employer’s medical report and, based on this evidence alone, determined that Claimant had fully recovered from his work injury effective March 20, 2019. Claimant did not file an appeal.  Thereafter, Claimant filed a reinstatement petition and a penalty petition alleging that his benefits should be reinstated on the grounds that the Termination Petition was improperly granted and that the finding of termination was not supported by substantial, competent evidence.  These Petitions were assigned to a second WCJ.  By decision dated January 17, 2020, second WCJ denied these Petitions, concluding that first WCJ’s order terminating Claimant’s benefits was final and binding.  The second WCJ concluded that Claimant was barred by res judicata from asserting that the Termination Petition was improperly granted.  Claimant appealed to the Board, which affirmed.  The Commonwealth Court quashed the subsequent appeal as untimely filed.  Thereafter, Claimant filed the Instant Petitions, alleging that the order terminating his benefits was not supported by substantial evidence and is void ab initio on the basis of hearsay as the attorney for Employer never took the deposition of the IME doctor.  A third WCJ held a hearing wherein Employer interposed a motion to dismiss, asserting res judicata.  The third WCJ denied and dismissed the Instant Petitions based on res judicata. Claimant appealed to the Board, which affirmed.

Holding:

Technical res judicata and collateral estoppel are both encompassed within the parent doctrine of res judicata, which prevents the relitigating of claims and issues in subsequent proceedings.  When a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded. For technical res judicata to apply, there must be: (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued.  Contrary to Claimant’s assertions, Claimant had the opportunity to litigate these issues.  However, by failing to answer the Termination Petition, appear at the hearing on the Termination Petition, or appeal the first WCJ’s order, Claimant did not avail himself of this opportunity.  Res judicata also applies to claims that “should have been litigated.”

Affirmed.

 

 

IMPAIRMENT RATING EVALUATIONS

 

Jay T. Tedesco v. Kane Freight Lines, Inc. (WCAB)
Unpublished Disposition – Unpublished Memorandum Opinion
Decided: May 19, 2023

Issues:

Whether Act 111 is unconstitutional? Whether the Board should have remanded the case to the WCJ to correct the apparent clerical error rather than doing so itself?

Background:

On March 31, 2015, Claimant sustained a disabling work-related injury while operating a broken pallet jack. Employer accepted the injury as a “lower back strain.”  The parties later stipulated to expand the description of injury.  After litigation of a review petition, the WCJ added an L4-5 disc herniation, resolved to a disc disruption with chronic right L4 radiculopathy to the description of injury.  Employer filed a modification petition seeking to modify Claimant’s benefits to temporary partial disability (TPD) status based on a July 11, 2019, IRE with a 32% impairment rating.  When the WCJ set out the case background in a 2020 decision, he made a clerical error. It is undisputed that Claimant was injured on March 31, 2015 and began receiving weekly benefits of $951.00 on an uninterrupted basis.  Also, in the prior 2018 decision, the WCJ described Claimant’s injury as “L4-5 disc herniation, resolved to a disc disruption with chronic right L4 radiculopathy.” However, the 2020 decision included an incorrect reference to reinstatement, an incorrect benefits rate, a date prior to Claimant’s actual date of injury, and attribution of cervical issues, which are not part of Claimant’s condition. The Board affirmed, concluding that Claimant’s July 2019 IRE was constitutionally legitimate and that the WCJ did not err in modifying Claimant’s benefit status to TPD based on the IRE. The Board also modified the WCJ’s decision to correct the clerical errors.

Holding:

Because prior cases dealing with the constitutionality of Act 111 are dispositive and binding authorities on this issue, Claimant’s argument that it is unconstitutional was meritless.  Section 413 of the Act provides that a notice of compensation payable or an agreement for compensation may be modified to correct a material typographical, clerical, or factual error. This has been judicially extended to allow correction of WCJ decisions, which may be done on a party’s petition or sua sponte by either the WCJ or the Board.  Section 413 does not apply where the alleged error involves a change in the WCJ’s factual or legal analysis or requires additional factual findings or conclusions of law.  Here, the error in the WCJ’s decision was obvious, and the WCJ’s listing of the description of injury was part of the case history; it was not the subject of dispute, not part of the ultimate disposition by the WCJ, and did not require additional fact-finding or analysis to correct. The Board did not err in making the necessary correction rather than remanding to the WCJ. Therefore, Claimant’s argument is meritless.  Claimant also has not established that the IRE was defective or that testimony concerning the IRE was incompetent. As such, it was for the WCJ to evaluate and weigh the evidence and credit the testimony.  Claimant did not show that the WCJ’s crediting of employer’s expert’s testimony was unsupported by substantial evidence or amounted to arbitrary or capricious disregard of evidence.

Affirmed.

 

Jennifer Leissner v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 17, 2023

Issue:

Whether Act 111 is unconstitutional?

Background:

In January 2013, Claimant sustained a work-related injury and was awarded disability benefits. In September 2020, she underwent an IRE which assigned Claimant a 6% impairment rating pursuant to the Sixth Edition AMA Guides to the Evaluation of Permanent Impairment (Guides) (second printing April 2009). Employer filed a modification petition based on the IRE results.  The WCJ granted Employer’s modification petition, which modified Claimant’s disability benefits from total to partial as of the IRE date.   The Board affirmed.

Holding:

Claimant sustained a work-related injury prior to the enactment of Act 111. Claimant’s arguments that Act 111 is a substantive amendment, not retroactive, and effects a vested right have already been rejected in prior decisions of the court.

Affirmed.

 

Joanne Hardik v. Community Health Systems (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision.
Decided: May 17, 2023

 Issue:

Whether the retroactive application of Act 111 to a pre-Act 111 injury is unconstitutional?

Background:

On July 11, 2013, Claimant suffered a work-related injury.  On March 12, 2021, Employer filed a modification petition based upon a February 25, 2021 IRE.  Claimant did not present any testimony and stated that she would only be challenging the constitutionality of Act 111. The WCJ held that Employer established that Claimant had reached MMI and had a whole-body impairment of 27%. Thus, the WCJ granted Employer’s petition, modifying Claimant’s benefit to partial disability status effective February 25, 2021. The Board affirmed.

Holding:

Claimant sustained a work-related injury prior to the enactment of Act 111. Claimant’s arguments that Act 111 is a substantive amendment, not retroactive, and effects a vested right have already been rejected in prior decisions of the court.

Affirmed.

 

Catherine Nadolsky v. UPMC Altoona Regional Health System (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision.
Decision: May 17, 2023

Issues:

Whether Act 111’s designation of the Sixth Edition of the Guides in assessing whole body impairment fails to remediate the delegation of powers deemed unconstitutional by the Pennsylvania Supreme Court in Protz II?

Background:

In April 2017, Claimant sustained a work-related injury in the form of a head contusion, which UPMC Altoona Regional Health System (Employer) accepted by means of a notice of compensation payable.  In September 2019, a physician conducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Second Printing (Guides), which yielded a whole-body impairment rating of 5%.  Employer filed a notice changing Claimant’s disability status to partial disability, effective April 20, 2019. Claimant thereafter filed a review petition challenging her change in disability status. The WCJ denied Claimant’s petition on the basis that Claimant failed to meet her burden of proving that her impairment rating was equal to or greater than 35%, further stating that he lacked the authority to address Claimant’s constitutional challenge to the IRE provisions of the Workers’ Compensation Act.  Claimant appealed to the Board, which affirmed.

Holding:

Act 111’s designation of the Sixth Edition of the Guides for use in conducting IREs does not fail to remediate the delegation of legislative authority deemed unconstitutional by the Protz II Court.  The non-delegation doctrine does not prevent the General Assembly from adopting as its own particular set of standards which already are in existence at the time of adoption. The non-delegation doctrine merely prohibits the General Assembly from incorporating, sight unseen, subsequent modifications to such standards without also providing adequate criteria to guide and restrain the exercise of the delegated authority.  When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will become the law of this Commonwealth. It is not delegating its authority to legislate.  Thus, the private status of the AMA and any individual contributors to the Guides is immaterial to Claimant’s constitutional claim, because no delegation of legislative discretion occurred when the General Assembly adopted an existing set of standards. Every delegation of legislative authority to a private party is not automatically unconstitutional.

Affirmed.

 

 

UTILIZATION REVIEW

 

Glen Owens v. Penn Tech Machinery Corp. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 30, 2023

Issue:

Whether the WCJ’s denial of the Platelet Rich Plasma (PRP) Injections aspect of Claimant’s Utilization Review (UR) petition was supported by substantial evidence of record?

Background:

Claimant sustained a work-related lumbar injury. In 2017, the parties settled Claimant’s wage losses and Employer agreed to remain responsible for reasonable and necessary medical expenses for Claimant’s injury.   In January 2020, Employer requested a UR of treatment provided to Claimant by Treating Doctor.  The Reviewing Doctor’s report stated that he reviewed Treating Doctor’s records as well as those from additional treating providers.   The Claimant reported ongoing pain and “issues” with the steroids, so Treating Doctor recommended platelet rich plasma (PRP) injections.   Treating Doctor requested to speak with Reviewing Doctor concerning the UR, but there was no response.  Claimant did not provide a statement for Reviewing Doctor to review as part of his evaluation.  Reviewing Doctor concluded, among other things, that PRP injections would not be reasonable and necessary.  Claimant filed a petition to review Reviewing Doctor’s UR concerning Treating Doctor.  The WCJ issued a decision and order crediting Reviewing Doctor’s conclusion that the PRP treatment proposed by Treating Doctor was not reasonable and necessary. Claimant’s testimony did not establish “significant relief” from the treatment and PRP lacks the support of peer-reviewed and evidence-based literature.  Claimant appealed to the Board, which affirmed the WCJ.

Holding:

Determinations concerning the weight and credibility of the UR report, as with any other evidence, are for the WCJ as factfinder.  The employer bears the burden of proof throughout the UR process to establish that the challenged medical treatment is not reasonable or necessary, no matter which party prevailed at the UR level.  Claimant has not shown with precedential authority or record references that the WCJ’s acceptance of the UR report and rejection of Treating Doctor’s report was otherwise arbitrary, capricious, or unsupported by record evidence. Therefore, the WCJ did not err, and the Board did not err in affirming.  To the extent Claimant believes that a conversation between Treating Doctor and Reviewing Doctor would have changed the result of Reviewing Doctor’s report or the outcome of this UR litigation, Claimant cannot fault Reviewing Doctor, Employer, or even the WCJ for the fact that it never happened. Claimant’s argument is therefore meritless.  Reviewing Doctor’s UR report was completed in February 2020 and limited to records through the end of January 2020, at which time Treating Doctor had recommended but not yet treated Claimant with PRP.  However, the Act specifically contemplates prospective UR consideration. Therefore, Reviewing Doctor addressed PRP generally and opined that while it had shown “promising results,” it was still too under-documented and experimental to be reasonable and necessary.  Although Reviewing Doctor did not have the benefit of Claimant’s testimony and Treating Doctor’s report that the treatment had been palliative, the WCJ was within her discretion to agree with Reviewing Doctor about the unproven nature of PRP and to conclude that the benefits Claimant received were insufficient to approve the treatment.  Claimant’s argument is therefore meritless.  Claimant did not establish that Reviewing Doctor’s UR report finding Claimant’s PRP treatment unreasonable and unnecessary was invalid, that the WCJ erred in crediting Reviewing Doctor’s report and denying that part of Claimant’s UR petition, or that the Board erred in affirming the WCJ’s decision and order.

Affirmed.

 

 

MENTAL INJURY AND NOTICE

 

Felicia Gonzalez v. Department of Military and Veterans Affairs (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 18, 2023

Issues:

Whether the WCJ and Board erred in determining Claimant did not give timely notice of a work-related mental injury?  Whether the WCJ and Board erred in concluding that Claimant did not prove a mental injury due to objective abnormal working conditions?

Background:

On February 28, 2018, Claimant submitted a Claim Petition alleging that on October 28, 2015, while employed by the Employer, she suffered from peripheral neuropathy as well as psychological stress from work environment.  Claimant alleged that notice of her work-related mental injury was provided on several occasions to Employer with the first notice being provided on May 19, 2015 and then again on September 25, 2015.  The WCJ determined that although Claimant’s testimony was credible, it was not corroborated to establish objective abnormal working conditions. The WCJ determined that claimant’s expert’s testimony was not competent to support a finding that Claimant suffered a mental injury because his opinions relied on Claimant’s subjective reaction to the work incidents.  The WCJ further determined that claimant’s expert clearly testified that Claimant’s disability was based upon her fibromyalgia condition.  The WCJ concluded that Claimant did not provide timely notice to Employer of a work-related injury in the nature of a psychological injury. The WCJ accordingly denied Claimant’s Claim Petition.  The Board affirmed.

Holding:

Claimant’s Claim Petition was filed on February 28, 2018. The alleged incident which caused Claimant’s mental injury is asserted to have occurred on October 28, 2015; however, Claimant is alleging that notice was provided to Employer on May 19, 2015, and September 25, 2015.  In May 2015, Claimant had filed a formal complaint regarding co-employer harassment prior to the date of her alleged work-related mental injury. The WCJ found employer’s testimony credible that Claimant did not provide notice of a work-related mental injury, as she failed to report that she had a stress-related or psychological condition because of the alleged work incidents with the co-employee.  The WCJ specifically determined that Claimant did not present any note from a physician and did not indicate herself that she was unable to continue working because of any stress-related or psychological condition. She continued to work. Additionally, the WCJ found that from May 2015 to August 2015, Claimant told employer that she was fine. After a September 25, 2015 incident, the WCJ further found that employer did not receive any documentation from a physician or notice from Claimant indicating that she was unable to perform her job duties. The WCJ also found that on October 22, 2015, after a conversation with Claimant, her employer, Claimant was asked if she would like a different job but did not request a transfer at that time. During this October 22, 2015 conversation, employer testified this was the first time she found out about Claimant’s issues with her feet; however, Claimant did not indicate to employer that the problem she was having with her feet was caused or worsened by her work activity.  Moreover, the WCJ found that the Claimant clearly testified that she avoided reporting a psychological work injury.  The WCJ’s findings are supported by substantial evidence.

Affirmed.

 

 

NOTICE OF COMPENSATION PAYABLE – AMENDED

 

Jeffrey D. Moretti v. County of Bucks (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 24, 2023

Issue:

Whether the WCJ erred in finding that the NTCP was properly amended by the issuance of a medical-only NCP because the latter form was not labeled “amended” as required by Section 121.7a(c) of the Bureau’s regulations?

Background:

Claimant worked as a prison guard for Employer for 20 years. While on duty, Claimant slipped on ice and fell to the ground, suffering an injury. Employer subsequently issued a notice of temporary compensation payable (NTCP) defining the injury as a soft tissue strain or tear, without identifying the specific part of the body injured.  Claimant soon returned to his pre-injury position as a prison guard, with some restrictions. Thereafter, Employer issued a medical-only notice of compensation payable (NCP), which again listed the injury as a soft tissue strain or tear, and Claimant stopped receiving indemnity benefits. The medical-only NCP was issued within 90 days of the NTCP, as required by Section 121.7a of the Bureau regulations.  The medical-only NCP did not specify that it was an amended form, and Employer did not file either a notice of denial or notice stopping temporary compensation.  A few months later, while leaving the prison property at the end of his workday, Claimant was involved in a physical altercation with a uniformed, on-duty police officer. Criminal charges were filed against Claimant as a result of this incident.  Employer terminated Claimant’s employment. Almost two years later, Claimant filed a penalty petition and a review petition alleging that Employer violated the Act by failing to pay medical bills and asserting that the description of his injury should be amended.  Claimant also filed a petition to reinstate compensation benefits asserting that his total disability recurred due to his employment being terminated and a worsening of his work-related condition.  Employer filed a petition for termination alleging that Claimant had fully recovered from his work injury based upon 2020 independent medical examinations.  The WCJ granted the review in part and denied the penalty petition. The WCJ determined that Claimant’s loss of earnings was not related to his work injury or a worsening thereof but was due to the termination of his employment for bad faith conduct and denied the reinstatement petition.  Finally, the WCJ granted the termination petition.  The Board affirmed the decision of the WCJ.

Holding:

The NTCP was properly amended and stopped and did not convert to an NCP by operation of law.  Section 121.7a of the Bureau’s regulations applies to NTCPs and the need to identify an amended NTCP.  Here, Employer did not issue a second or amended NTCP, but rather a medical-only NCP.  Section 121.7a does not address NCPs, and the Bureau’s regulations do not contemplate labeling an NCP as amended in this context.  The medical-only NCP issued by Employer properly informed Claimant that while Employer was now acknowledging his injury, it did so only as to compensation for medical treatment and Claimant could establish rights to future compensation by filing a reinstatement petition.  The WCJ did not err.

Affirmed.

 

 

JUDICIAL DISCRETION

 

Marie Louise Boulin v. Brandywine Senior Care, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 9, 2023

Issues:

Whether the WCJ’s factual findings and credibility determinations are based upon substantial evidence?

Background:

In August 2018, Claimant sustained work-related injuries to her right ankle, shoulder, and mid/lower back while employed as a nurse’s aide.  As of January 31, 2020, Claimant remained disabled from a heel bone fracture but had fully recovered from her other injuries.  The WCJ granted Employer’s termination petition, concluding that Claimant had fully recovered from her heel bone fracture.  Claimant appealed to the Board, which affirmed the WCJ’s decision.

Holding:

Despite raising four issues in her statement of questions, Claimant presented her argument under a single heading. Further, Claimant presented no legal authority to support her claims, which were nearly indecipherable. The Court affirmed the Board’s decision to affirm the WCJ’s decision to grant Employer’s termination petition. The Court held that Claimant’s presentation of her appeal hindered its meaningful appellate review.  Thus, her claims were held to have been waived.  Nevertheless, Claimant’s arguments were meritless as the WCJ’s findings were supported by substantial evidence, and the Court was bound by the WCJ’s credibility and evidentiary weight determinations.

Affirmed.

CONCURRING AND DISSENTING OPINION BY PRESIDENT JUDGE COHN JUBELIRER

The dissent agreed with the Majority’s affirmance of the Board’s decision upholding the Workers’ Compensation Judge’s granting of the termination petition.  However, the dissent disagreed with the Majority’s finding that under the circumstances herein, Claimant, proceeding pro se, waived the claims she presented for the Court’s review because the nature of Claimant’s issues is clear from the record.

 

 

Donald Patterson v. Transfer VFD (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 17, 2023

Issues:

Whether the Board erred in stating that Claimant had not alleged any unpaid medical expenses and should have remanded to clarify Employer’s responsibility to pay Claimant’s medical expenses?

Background:

While working for Employer as a volunteer firefighter, Claimant suffered an injury responding to an emergency call.  Claimant filed a claim petition, seeking total disability benefits and medical benefits. Employer responded with a termination petition, asserting that Claimant had fully recovered from any work-related injury. While litigating his petition, Claimant documented $7,905.41 in medical bills covered by his medical insurer through a lien statement issued by Equian LLC.  Medical experts from both Claimant and Employer agreed that Claimant had fully recovered from his injuries as of December 13, 2017.  The WCJ granted Claimant’s petition as to medical benefits and granted Employer’s termination petition. The WCJ ordered Employer to reimburse Equian for the $7,905.41 in medical bills. Otherwise, the WCJ awarded no disability benefits, costs, or fees.  Claimant timely appealed to the Board, seeking a remand for clarification that Employer was responsible for the payment of all reasonable, necessary, and causally related medical expenses through December 12, 2017. The Board simply affirmed.

Holding:

The Act obligates employers to pay reasonable and necessary medical services causally related to treatment for a work injury. To seek payment of medical expenses, a claimant must submit evidence of medical bills while the record remains open. An employer is not liable to pay medical bills submitted by a claimant after the record is closed.  Here, Claimant sought reimbursement of those medical bills paid on his behalf by Equian, totaling $7,905.41. The WCJ directed Employer to reimburse Equian. Claimant did not submit any additional evidence of medical expenses, either paid or unpaid. Thus, Employer’s financial obligation is limited to the $7,905.41 lien. A remand for the WCJ to amend the operative language in his decision was unnecessary.

Affirmed.

 

  

Robert Mullen v. Northampton Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 17, 2023

Issues:

Whether the WCJ erred in erred in finding that Claimant’s hearing loss was not caused by work-related exposure to noise?

Background:

Claimant worked for the Township’s parks and recreation maintenance department for approximately 12 years. Claimant filed a claim petition on May 21, 2019, alleging that he suffered from occupational hearing loss caused by exposure to noise throughout his employment with the Township. Employer denied that Claimant’s hearing loss was work related.  In a decision circulated on October 26, 2020, the WCJ credited Claimant’s testimony to the extent he suffered from a severe hearing impairment. The WCJ rejected Claimant’s testimony that his hearing loss was caused by exposure to occupational noise while employed by the Township.  While the WCJ found that Claimant suffered severe binaural hearing loss, he also found that Claimant failed to meet his burden of proving that his hearing loss was work related and denied the claim petition.

Holding:

The WCJ thoroughly explained the evidence that formed the basis for his findings of fact as well as his rationale for finding the Township’s witnesses more credible than Claimant’s. Accordingly, the WCJ did not err in denying his claim petition after finding that Claimant’s hearing loss was not related to his employment with the Township.  Further, Claimant failed to raise before the Board any issue regarding the propriety of holding a hearing by telephone or to suggest that he was somehow prejudiced by such a hearing, the issue is waived.

Affirmed.

 

 

MEDICAL FEE REVIEW

 

Harburg Medical Sales Company v. SWIF (Fee Review Hearing Office)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 23, 2023

Issue:

Whether Harburg is a health care provider under the Act?

Background:

Leroy Harrison (Harrison) was injured in the course and scope of his employment with Optimal Energy Inc. Harburg filed the Applications to determine the appropriateness of payments SWIF made for durable medical equipment supplies it provided to Harrison.  SWIF orally made a Motion to Dismiss arguing that Harburg was not a health care provider within the meaning of Section 109 of the Workers’ Compensation Act (Act), and, therefore, lacked standing to invoke the Bureau’s fee review process.

Holding:

Because the issue has been previously litigated and decided by this Court, the Court had to determine whether res judicata or collateral estoppel applies herein to determine whether the Bureau erred in granting SWIF’s Motion to Dismiss.  Res judicata bars actions on a claim, or any part of a claim, which was the subject of a prior action, or could have been raised in that action.  Here, res judicata did not apply because SWIF was not a party to the prior action. However, all five collateral estoppel elements were met: (1) the issue in both actions was whether Harburg is a health care provider under the Act; (2) the prior action resulted in a final judgment on the merits; (3) Harburg was a party to the prior action; (4) Harburg had a full and fair opportunity to litigate the issue; and (5) the resolution of the issue was essential to the judgment in the prior action. Because collateral estoppel applies, re-litigation of whether Harburg is a health care provider under the Act is barred. Accordingly, the Bureau properly granted SWIF’s Motion to Dismiss.

Affirmed.