PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
6/1/2023 – 6/30/2023
TERMINATION PETITION
Monifa Holmes v. Bayada Home Health Care, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 29, 2023
Issue:
Whether the WCJ relied on substantial evidence in finding that there was a full recovery?
Background:
Claimant injured her left shoulder while in the course and scope of her employment as a nurse for Employer. Employer issued a Temporary Notice of Compensation Payable (TNCP) accepting Claimant’s injury in the nature of a left bicep strain. Claimant’s injury was redefined in the WCJ’s 2017 decision as a status post debridement of a superior labrum from anterior to posterior (SLAP) lesion and biceps tendonesis. In 2020, Employer filed its Termination Petition alleging that Claimant had fully recovered from all work-related injuries as of the IME date. The WCJ issued a decision in which she found Claimant’s testimony as to ongoing disability neither credible nor persuasive and found employer’s expert more credible and persuasive than claimant’s expert. The WCJ found as fact that Claimant was fully recovered from this work-related injury effective the date of the IME.
Holding:
Claimant took issue with the WCJ’s use of the term “EMG” in place of the term “FCE.” The Court however found that such was merely a typographical error, based upon an examination of the decision as a whole. The WCJ was clearly aware of the correct procedure upon which the expert relied and the WCJ’s error in this regard was harmless. The WCJ was free to accept as credible deposition testimony and reports that Claimant only sustained a work-related injury in the nature of “a status post debridement of a SLAP lesion and biceps tenodesis,” and that any resolved left rotator tendinitis was not attributable to her work-related injury. The limited description of Claimant’s work-related injury as found in the WCJ’s 2017 decision and 2021 decision, not relating any resolved left rotator tendinitis to her work-related injury, is amply supported by 2017 deposition testimony and reports. In addition, the later IME opinion that Claimant had sustained a left biceps strain and SLAP lesion of the left shoulder as a result of her work injury, consistent with the WCJ’s 2017 decision, and that she had fully recovered from all of the work-related injuries at the time of the IME, is likewise supported by substantial, competent evidence.
Affirmed
Derek Everage v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 23, 2023
Issue:
Whether Employer met its burden of proving, in a subsequent termination petition, that Claimant fully recovered from his work-related injury?
Background:
Claimant was diagnosed with an abdomen/groin strain, for which he underwent right inguinal hernia surgery repair. Employer issued a Notice of Temporary Compensation Payable, pursuant to which it paid Claimant total disability benefits. Claimant later returned to full-duty work with Employer and felt a pop in his lower abdomen and pain like he experienced with his initial work injury. Claimant was diagnosed with inguinal hernia repair status post-surgery and related back pain resulting from his initial work injury and was disabled from his time-of-injury job. Claimant filed a Reinstatement Petition. Employer filed a Termination Petition. The WCJ denied Employer’s Termination Petition on the basis that Employer failed to prove that Claimant was fully recovered from his work injury and dismissed Claimant’s Reinstatement Petition as moot. In 2020, based on a new IME, Employer filed a new Termination Petition. The WCJ granted the Termination Petition. Claimant appealed to the Board which affirmed the WCJ.
Holding:
Where there have been prior petitions to terminate benefits, the employer must demonstrate a change in physical condition since the last disability determination. The evidence necessary to prove a change since a prior adjudication is different in each case. By accepting the employer’s medical evidence of full recovery as credible, a WCJ could properly make a finding that the employer has met the standard of a change in the claimant’s condition. The WCJ’s finding may be based upon a review of evidence that pre-dates the prior adjudication plus a post-adjudication examination. It is not necessary for the employer to demonstrate that a claimant’s diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment. A change sufficient to satisfy the requirement exists if there is a lack of objective findings to substantiate a claimant’s continuing complaints. Although the WCJ did not reference the standard or make a specific finding that Claimant’s condition changed since the last adjudication, by accepting Employer’s medical evidence of Claimant’s full recovery as credible, the WCJ properly made a finding that Employer met the standard of a change in Claimant’s condition.
Affirmed.
AVERAGE WEEKLY WAGE CALCULATION
Anthony L. Barnes v. School District of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 26, 2023
Issue:
Whether the Board and the WCJ erred as a matter of law in reducing Claimant’s total disability benefits by the amount of his AWW at a concurrent employer as of the date the WCJ found that he had recovered fully from another First Injury?
Background:
This case involved the payment of benefits pursuant to the WC Act for two work-related injuries sustained by Claimant while working at two separate, but concurrent, employments. In 2018, Claimant was employed by both Employer and Comhar. Claimant was first injured on February 21, 2018, during his employment with Comhar as a home health aide (First Injury). On February 26, 2018 Claimant sustained a second injury while working for Employer as a food service manager (Second Injury). Claimant thereafter began receiving compensation benefits through Employer. WCJ granted a Claim Petition against Comhar for the period from February 22, 2018, through February 11, 2019. With regard to Claimant’s First Injury, the WCJ found that Claimant sustained the First Injury on February 21, 2018, but also found that the First Injury was fully resolved as of February 12, 2019. Regarding the Second Injury, the WCJ found that Claimant sustained an aggravation of the First Injury, which continued. Specifically, the second injury occurred on February 26, 2018 while employed with Employer and was an aggravation of the lumbar strain and sprain injury he sustained in the first injury thereby temporarily totally disabling Claimant from his job duties with Comhar beginning February 26, 2018 and Employer beginning February 27, 2018. The WCJ awarded workers’ compensation benefits based on Claimant’s average weekly wages from both Comhar and Employer and suspended Comhar’s payment of benefits for the period between February 22, 2018 and February 12, 2019. The WCJ further reduced Claimant’s benefits based on the average weekly wage for just the employment with Employer, effective February 12, 2019, based on the finding that he had recovered fully from the First Injury as of that date. Claimant appealed the WCJ’s reduction of his workers’ compensation benefit amount to the Board. The Board affirmed.
Holding:
Where a claimant holds more than one job at the time of a work-related injury, the AWW must be calculated based on the wages from all of his or her jobs, whether the claimant is disabled from the other jobs or not. Where the claimant is not disabled from the other jobs, however, it is proper to place the claimant on partial disability, reducing the total disability benefit by the wages earned from the jobs from which the claimant is not disabled. The WCJ and the Board erred in subtracting Claimant’s Comhar wages from his workers’ compensation average weekly wage and benefit rate beginning February 12, 2019. Although Claimant sustained the First Injury while employed at Comhar, Claimant intended to return to work at Comhar on February 26, 2018. He was prevented from doing so not because of the First Injury, but because of the Second Injury, which he sustained while working for Employer. The controlling factor is whether Claimant remains disabled from his jobs at both employers. It is undisputed in the record that Claimant’s disability from both Comhar and Employer was caused by the Second Injury. It also is undisputed that the Second Injury, which includes an aggravation of the First Injury, continues. The WCJ accordingly concluded that only Employer is responsible for payment of disability benefits beginning February 26, 2018. Claimant’s “recovery” from the First Injury is irrelevant to the calculation of workers’ compensation benefits to be paid by Employer. It was not the First Injury, but its later aggravation in the Second Injury, that rendered Claimant disabled from both employers. For that reason, his disability benefits should not have been reduced for any wages previously earned at Comhar; that reduction would not reflect the “economic reality” of Claimant’s earning experience. Claimant should be paid for loss of wages from both employments.
Reversed
UNCONSTITUTIONAL DELEGATION
City of Philadelphia v. Joseph Healey (WCAB)
Commonwealth Court of Pennsylvania – Reported En Banc Opinion
Decided: June 21, 2023
Issue:
Whether a claim made pursuant to Section 108(r) of the Workers’ Compensation Act can be based on a carcinogen that was designated as Group 1 by the International Agency for Research on Cancer (IARC) after Act 46 became law on July 7, 2011, thus constituting an unconstitutional delegation of the General Assembly’s legislative authority?
Background:
Employer hired Claimant as a firefighter in 2003. In June 2016, Claimant underwent medical testing which revealed a mass on his kidney. Claimant was diagnosed with clear cell renal carcinoma. On May 31, 2019, Claimant filed the Claim Petition asserting that his employment as a firefighter, fighting house, residential, and car fires, for 13 years exposed him to pressure treated wood, diesel fuel emissions, inorganic arsenic, and soot, plus diesel fuel emissions at firehouses and firegrounds from the fire apparatus which caused his kidney cancer. Employer issued a Notice of Compensation Denial, indicating that Claimant did not sustain a work-related injury or disease. Employer agreed to Claimant’s allegations as averred in his Claim Petition but contested causation. Claimant’s expert opined that Claimant’s exposure to arsenic, asbestos, diesel fumes and TCE was the major occupational risk factor for developing kidney cancer. When Act 46 was enacted in 2011, TCE was listed in Group 2a as a substance “probably carcinogenic to humans.” However, in 2014, based on new data that TCE exposure caused kidney cancer, IARC reclassified TCE as a Group 1 carcinogen. The WCJ granted the Claim Petition finding credible the expert testimony that Claimant’s clear cell renal carcinoma was caused by his cumulative exposures to asbestos, arsenic, TCE, PAHs, diesel fuel emissions, and soot over 13 years. Employer appealed to the Board, which affirmed.
Holding:
Based on the evidence the WCJ found credible, TCE was among the dangerous substances to which Claimant was exposed as a firefighter and the cumulative exposure to all of the chemicals over 13 years caused his kidney cancer. In addition, Claimant’s evidence established that he was diagnosed with a type of cancer caused by exposure to a known Group 1 carcinogen. Claimant did not have to prove that his TCE exposure actually caused his cancer. Accordingly, there existed substantial record evidence for the WCJ to award Claimant workers’ compensation benefits under Section 108(r) of the Act. Unlike Protz, in Section 108(r) of the Act, the General Assembly merely established the IARC’s Group 1 listings as the evidentiary standard for claimants’ statutory presumption that weeds out workers’ compensation claims for cancer with no known link to Group 1 carcinogens. A claimant does not automatically receive workers’ compensation benefits merely because the IARC listed it as a Group 1 carcinogen. A claimant still has the burden to prove that he was exposed to such a substance and that the substance has been linked to his type of cancer. Accordingly, despite that TCE was not listed as a Group 1 carcinogen when Act 46 was enacted, Claimant’s medical expert testified that medical studies and documentation evidenced TCE’s known link to kidney cancer. Neither the Board nor the Court may reweigh the evidence or the WCJ’s credibility determinations and the WCJ’s findings will not be disturbed if they are supported by substantial, competent evidence. Viewing the evidence in Claimant’s favor, substantial evidence supported the WCJ’s conclusion that Claimant proved his entitlement to workers’ compensation benefits.
Affirmed.
ENTITLEMENT TO WAGE LOSS
Intertek USA, Inc. v. Amol Hate (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 14, 2023
Issue:
Whether the WCJ and the Board erred as a matter of law by failing to limit the benefits owed to Claimant based upon his termination for cause and ability to work in a light duty capacity?
Background:
Claimant worked in Employer’s petroleum inspection division. His duties included inspecting products coming into and leaving refineries. He collected samples by climbing a 40- to 60-foot tank and using his arms to dip and fill a glass bottle. In October 2019, Claimant started to have pain in his right shoulder. He began treating for the injury and missing time from work. In July 2020, Claimant was driving from Pennsylvania to Maryland for work, and he stopped to get a coffee at a convenience store. During that stop, another vehicle struck Claimant’s car in the parking lot. Claimant reported the accident to his Employer. On July 15, 2020, Claimant was advised to have shoulder surgery. On July 16, 2020, Claimant informed Employer he would be out of work for three to four months for surgery. On that same day, Employer terminated Claimant’s employment because of the July 2020 car accident. Claimant filed a Claim Petition alleging he sustained a right shoulder injury due to cumulative trauma from his work with Employer. He sought ongoing total disability benefits beginning July 16, 2020, the day Employer terminated his employment. Employer issued a Notice of Compensation Denial (NCD). The WCJ granted Claimant’s Claim Petition. The WCJ found Claimant was entitled to ongoing indemnity benefits, except that the WCJ found Claimant was not entitled to indemnity benefits from July 16, 2020, through the date of his surgery, because Claimant was fired for cause. The Board affirmed the WCJ.
Holding:
The WCJ credited Claimant’s testimony of his inability to lift anything with his right hand because of the pain in his shoulder. The WCJ found Claimant’s “injury of repetitive trauma” resulted in disability as of the date of his surgery. The WCJ did not find Claimant eligible for benefits as of July 16, 2020, because from the date of his termination until his surgery, Claimant’s loss of earning power was due to his termination, not a disability. However, after his surgery, Claimant was fully disabled and unable to perform his previous job. The WCJ relied upon substantial evidence to find Claimant suffered an injury of repetitive trauma, the injury was related to his work with Employer, the injury ultimately resulted in disability, and the disability continued. Further, because Claimant’s disability continued, the WCJ and Board did not commit an error of law by failing to limit Claimant’s indemnity payments based upon his termination for cause or his clearance to perform light-duty work.
Affirmed.
RES JUDICATA AND COLLATERAL ESTOPPEL
Dave Scavello v. Wal-Mart Associates, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 26, 2023
Issue:
Whether the Board erred in affirming the WCJ’s conclusion that res judicata barred the Petitions?
Background:
On March 16, 2016, Claimant, while working for Employer, sustained a work-related injury to his right hand/wrist in the nature of a contusion. Employer accepted liability for Claimant’s work-related injury by issuing a medical-only notice of compensation payable (MO-NCP), which described the accepted work-related injury as a right-hand contusion. On August 18, 2016, Employer filed a termination petition, alleging that Claimant had fully recovered from his work-related injury. Thereafter, on September 8, 2016, Claimant filed a review petition, seeking to amend the description of his work-related injury. The WCJ denied both the termination petition and the review petition. Claimant did not appeal the denial of his review petition to the Board, but Employer appealed the denial of the termination petition. The Board reversed noting that the credited medical evidence did not support a finding that Claimant had not fully recovered from his right-hand contusion. Claimant appealed, arguing the Board erred in reversing the denial of the termination petition and suggesting the WCJ erred in denying the review petition. The Commonwealth Court disagreed. The Court affirmed the Board’s reversal on the Termination and indicated the denial of the review petition had not been appealed to the Board and, therefore, that petition was not before the Court. On August 7, 2020, Claimant filed a Reinstatement Petition, a Review Petition, and a Medical Review Petition, pro se. Citing the well-known principles of technical res judicata and collateral estoppel, which prevent the re-litigation of claims and issues previously and finally decided against a party, the WCJ held the Petitions were barred by the doctrine of res judicata. The Board affirmed.
Holding:
The doctrine of res judicata encompasses both technical res judicata and collateral estoppel. The subject matter and ultimate issues, which are the nature and extent of Claimant’s 2016 work injury and whether Claimant suffered a wage loss from his concurrent employment, were the same in both the old and new proceedings. Further, the resolution of these issues was necessary to the final judgment in the earlier litigation. Finally, Claimant did not appeal the earlier Decision. This Court’s affirmance of the Board’s order in the earlier litigation is the final judgment on the issue of whether Claimant was fully recovered.
Affirmed
IMPAIRMENT RATING EVALUATIONS
Mark Burkett v. Jimi Enterprises, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 26, 2023
Issue:
Whether the provisions of Act 111, relating to Impairment Ratings, are Unconstitutional?
Background:
Claimant sustained a work-related injury in the nature of a neck strain while in the course and scope of his employment. Employer paid Claimant more than 104 weeks of temporary total disability (TTD) benefits for the injury. In 2012, Employer had Claimant undergo an IRE under the former Section 306(a.2) of the Act, which resulted in a WCJ decision granting a modification of Claimant’s benefits to partial disability as of March 15, 2012. On June 28, 2017, Claimant filed a Petition to Review Compensation Benefits (Review Petition) seeking a change in his disability status from partial to total disability based on the Pennsylvania Supreme Court’s opinion in Protz. In 2020, Claimant submitted to an IRE and thereafter, Employer filed the instant Modification Petition seeking to reduce Claimant’s status to partial disability. Ultimately, the WCJ concluded that Employer met its burden of proof under its petition to establish that Claimant has less than a 35% rating for whole-person impairment under the AMA Guides, 6th Edition (second printing April 2009). As a result, the WCJ also concluded that indemnity benefits are modified from total disability to partial disability status as of January 8, 2020. The WCJ issued an order granting Employer’s Modification Petition; modified Claimant’s benefits to be partial in nature as of January 8, 2020; and granted Employer a credit for previous period of partial disability toward the 500 total weeks of partial disability entitlement. Claimant appealed the WCJ’s decision to the Board. The Board rejected Claimant’s constitutional claims, and Claimant filed this appeal.
Holding:
The plain language of the law establishes a mechanism by which employers/insurers may receive credit for weeks of compensation previously paid. Pursuant thereto, an employer/insurer will receive credit towards this 104 weeks for any weeks of total disability benefits that were previously paid prior to Act 111’s enactment. Second, any weeks of partial disability previously paid will count towards the 500-week cap on such benefits. The Court has previously held that it is not unconstitutional.
Affirmed