PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
10/1/2023 – 10/31/2023
JUDICIAL DISCRETION
Marie Dennis v. Inglis House (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: October 12, 2023
Issues:
Whether the WCJ’s limited description of Claimant’s injuries and recovery therefrom, was in error and whether the WCJ erred in not awarding any wage loss?
Background:
Claimant filed a claim petition asserting that she was injured in the course of her employment. Claimant alleged that she sustained injuries to her neck, right arm, right shoulder, and right hand/wrist. She sought partial disability benefits from January 14, 2020, through March 26, 2020, and total disability benefits from March 27, 2020, ongoing. The WCJ rejected Claimant’s testimony that she could not work and that she could not do light-duty work on and after March 24, 2020, or any work after August 13, 2020. Based upon credibility determinations relating to the various experts, the WCJ determined that Claimant met her burden of proving that she sustained a work injury on January 14, 2020. The WCJ suspended Claimant’s benefits for the period between January 14, 2020 and July 17, 2020. The WCJ determined that Claimant was fully recovered from her cervical sprain of her right hand and wrist pain as of July 6, 2020 and terminated Claimant’s benefits as of that date. The Board affirmed.
Holding:
In a claim petition, the claimant has the burden of proving all the elements necessary to support an award, including the existence of a work-related injury resulting in disability and its duration. Where the evidence supports a finding of disability for a closed period, the WCJ may so limit benefits. Also, where the Board remands a matter to the WCJ, the aggrieved party cannot appeal the Board’s adjudication to this Court. Once the WCJ issues the remand decision, the aggrieved party can appeal the Board’s initial adjudication to the Commonwealth Court. As a threshold matter, the Court addressed Employer’s contention that a substantial portion of Claimant’s appeal has been waived. The Court rejected Employer’s contention that Claimant waived those issues in her current appeal that were raised to the Board prior to its remand as incorporation of those issues by reference was sufficient. Claimant’s contention that the Board erred in affirming the WCJ’s limited description of her injuries and recovery therefrom was without merit. Claimant simply challenges the WCJ’s credibility determinations and assignment of weight to the evidence, both of which are squarely within the WCJ’s province. The WCJ’s findings are supported by the substantial evidence of record and cannot be disturbed. As to Claimant’s argument that the Board erred by affirming the WCJ’s denial of any wage loss benefits for Claimant’s injuries, Claimant waived this issue because she did not raise it at the earliest opportunity, i.e., in her original appeal to the Board, after the WCJ’s initial decision. The general and conclusory statements in the initial, pre-remand appeal, did not sufficiently bring to the attention of the Board the specific wage loss error asserted by Claimant. It was only in the second appeal, post-remand, that Claimant enunciated a more specific attack on the WCJ’s decision.
Affirmed.
Ronald Cantwell v. Gunite Specialists, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 16, 2023
Issue:
Whether the denial of the claim petition was supported by substantial record evidence?
Background:
Employer issued a medical-only Notice of Temporary Compensation Payable (NTCP). Later Employer rescinded the NTCP when it issued a Notice Stopping Temporary Compensation (NSTC) and a Notice of Compensation Denial (NCD) asserting that Claimant had not actually sustained a work-related injury. Claimant then filed a claim petition asserting that he sustained a disabling work-related lower back injury while working for Employer. The WCJ did not credit Claimant’s evidence. The WCJ also stated that even though employer’s expert assigned Claimant a strain injury, that diagnosis was also based on Claimant’s unreliable reporting of the asserted incident. The WCJ also credited employer’s testimony as uncontested and supported by documentation of Claimant’s attendance and disciplinary issues. The WCJ denied the claim petition. The Board affirmed.
Holding:
The WCJ is the fact finder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Neither the Board nor the Court may reweigh the evidence or the WCJ’s credibility determinations. When a WCJ finds, as he did here, a claimant’s testimony non-credible as to the occurrence of a work-related incident or injury, that determination will not be disturbed on appeal so long as it is supported by record evidence, is presented in a reasoned decision, and is neither arbitrary nor capricious. The WCJ’s order denying Claimant’s claim petition was supported by substantial record evidence and the WCJ’s opinion in support of the order was sufficiently reasoned.
Affirmed
Tisho Ann John v. 10400 Roosevelt Operating LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 31, 2023
Issue:
Whether the WCJ’s decision was well reasoned and supported by substantial, competent record evidence?
Background:
Claimant filed a Claim Petition alleging that she was injured in the course of her employment as a licensed practical nurse with Employer. The WCJ denied Claimant’s Claim Petition. Claimant appealed to the Board and the Board affirmed.
Holding:
The critical inquiry is whether there is evidence to support the findings actually made, based upon a review of the entire record. If the record contains such evidence, the findings must be upheld even though the record contains conflicting evidence. The WCJ cannot simply ignore uncontroverted evidence but, rather, must adequately explain the reasons why the WCJ has rejected such evidence. While the WCJ did not doubt Claimant suffered an incident on the date alleged, Claimant’s testimony regarding the specifics of its occurrence was found to be not credible. Claimant’s testimony was inconsistent with the purported mechanism of injury. The claimant’s medical expert’s testimony was rejected in favor of the Employer’s expert. Substantial evidence supported the WCJ’s decision.
Affirmed.
COURSE AND SCOPE OF EMPOYMENT
Robert Lewis v. Lehigh Asphalt Paving (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: October 19, 2023
Issue:
Whether the Board erred in affirming the WCJ’s determination that Claimant’s injury did not occur in the course and scope of his employment where Claimant was injured as he stepped from a work area into a work vehicle?
Background:
Claimant worked in the equipment yard of Employer’s facility. Throughout the course of the day, Claimant began to feel pain and weakness in his left calf and ankle. At the end, after punching out, Claimant returned to the work truck he was driving and hurriedly attempted to get into the cab of the vehicle. As he pushed off with his left foot to step up into the cab of the truck, Claimant felt a popping sensation in his lower leg, which was a tear of his Achilles tendon. Employer issued a Notice of Denial for Claimant’s injury, indicating that the injury did not occur within the scope of Claimant’s employment. Claimant filed the Claim Petition. The WCJ issued a Decision that granted the Claim Petition. The Board remanded the matter. The Board observed that, while Claimant appeared to have been on Employer’s premises at a reasonable time after the end of his work shift, a finding of fact was required regarding whether the evidence established that Claimant’s injury had been caused by a condition of Employer’s premises or by the operation of the business or affairs thereon. The WCJ determined that Claimant’s injury had not been caused by a condition of Employer’s premises and that Claimant had not been engaged in the business of Employer when injured. The WCJ denied the Claim Petition. The Board affirmed.
Holding:
Here, Claimant was not actually engaged in furtherance of Employer’s business or affairs; he had punched out and was entering a vehicle following his shift to go home. Therefore, to be entitled to compensation, Claimant must prove that he was entitled to compensation under the Slaugenhaupt test. The first two prongs of the Slaugenhaupt test are satisfied here; there is no dispute that Claimant was on Employer’s premises, where he was required to be during his scheduled shift that had concluded a mere 15 minutes before the occurrence of Claimant’s injury. Thus, the only question is the satisfaction of the third prong of the Slaugenhaupt test – whether Claimant sustained his injury due to a condition of the premises or operation of the business. The third prong of the Slaugenhaupt test is not satisfied in this case. Claimant testified that, after punching out for the day, he felt a popping sensation as he pushed off the ground with his leg in a hurried attempt to get into the cab of his vehicle. It was not the ground, but rather this step up into the vehicle that caused Claimant’s leg injury. Neither party attributed his injury to any condition of Employer’s premises. Further, when an employee is on his employer’s property and is injured after having ended his shift, compensation for the injury must satisfy the requirements of the Slaugenhaupt test, and the Claimant’s status as a traveling or stationary employee is immaterial to his entitlement to compensation for an injury sustained while leaving Employer’s premises following his completed shift.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
Howard Dunetz v. Charles H. Sacks D.M.D., P.C. (WCAB)
Commonwealth Court of Pennsylvania – En Banc Published Opinion
Decided: October 26, 2023
Issue:
Whether the Board erred in affirming the WCJ’s decision to reinstate total disability benefits as of the date of the claimant’s reinstatement petition, rather than as of the date his benefits were originally modified based on the results of a pre-Protz IRE?
Background:
In May 2007, Claimant sustained a work-related injury for which he received total disability benefits. Employer, via a Notice of Change in 2011, changed the status of Claimant’s benefits from total to partial disability as of December 2, 2010, the date of the IRE that found Claimant had an eight percent whole-person impairment rating. Claimant did not contest the Notice of Change or otherwise challenge the 2010 Modification. On June 12, 2020, Claimant filed the Reinstatement Petition, alleging that the 2010 Modification was unconstitutional following Protz and requested reinstatement to total disability as of the date of the original IRE modification. The WCJ reinstated Claimant’s workers’ compensation benefits from partial disability to total disability from June 12, 2020, the date of Claimant’s Reinstatement Petition, until December 15, 2020, the date Employer obtained an Impairment Rating Evaluation (IRE) of Claimant reflecting a 17% whole-body impairment. The WCJ also modified Claimant’s benefits from total disability to partial disability as of the date of the IRE, granted Employer a credit for payments of partial disability benefits it had paid Claimant prior to December 15, 2020, and found that Claimant was no longer entitled to wage loss benefits after December 15, 2020, because he had already received the 500 weeks of partial disability benefits permitted by the Workers’ Compensation Act. Claimant asserted that his case was an extraordinary circumstance that warranted application of the equitable balancing test in Dana Holding, and that Protz should be fully retroactive as to him. The Board affirmed.
Holding:
As for the equitable balancing test, the Supreme Court’s statements reflected a restrained recognition of such a test as a possibility, rather than a certitude. In support of his claims that his is an extraordinary case, that a balancing test should apply, and that his interests should prevail, Claimant cited the severity of his injury, which has left him unable to return to work for more than 500 weeks, and his financial need for the continuation of his indemnity benefits as the basis for the “extraordinary” nature of his case. However, this is no different than that of many other claimants who also face the cessation of their WC indemnity benefits under these or similar circumstances. Additionally, Employer’s interests must be balanced against Claimant’s unfortunate, but not extraordinary, interests. Those interests include reliance not only on the previously presumed valid IRE provisions but also on the final, unappealed decision on the IRE modifying Claimant’s benefits status. Further, employers may also have forgone other avenues of relief. The Board properly applied the precedent regarding the applicability of Protz to cases, where the request for reinstatement was asserted in a reinstatement petition, and the equitable balancing test referenced in Dana Holding would not apply. There was no error in its upholding the WCJ’s decision reinstating Claimant’s benefits as of the date of the Reinstatement Petition, rather than the date of the initial IRE. Additionally, because the Board properly applied the precedent regarding Act 111’s applicability to claimants whose injuries arose prior to Act 111’s enactment and authorization to employers to obtain a credit for past partial disability benefits paid, there was similarly no error in its upholding the WCJ’s decision granting Employer a credit for the partial disability benefits it had already paid.
Affirmed.
Joseph Perlis v. City of Wilkes-Barre (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: October 6, 2023
Issue:
Whether the retroactive application of Act 111 to permit Employer to take a credit for temporary partial disability (TPD) payments it made pursuant to the 2015 IRE is unconstitutional?
Background:
Claimant sustained a work-related injury in 2012. In 2015, Employer issued a Notice of Change of Disability Status, in which it changed Claimant’s disability status from temporary total disability (TTD) to temporary partial disability (TPD) based on an impairment rating evaluation (IRE). Subsequently, by Decision and in 2017, a WCJ granted two review petitions filed by Claimant and amended the description of Claimant’s injury. In 2021, Employer filed the Modification Petition, although Claimant had continued to receive TPD after the 2017 decision, pursuant to newly enacted Section 306(a.3),3 to formally modify Claimant’s benefit status to TPD based on a new IRE performed using the Sixth Edition, second printing of the AMA Guides. Claimant soon thereafter filed a Reinstatement Petition, in which he requested that his benefit status be reinstated to TTD because the 2015 IRE was conducted pursuant to former Section 306(a.2), which was held to be unconstitutional in Protz II. The WCJ granted Employer’s Modification Petition, denied Claimant’s Reinstatement Petition, and modified Claimant’s benefit status to TPD as of September 2, 2021. In denying Claimant’s Reinstatement Petition, the WCJ specifically noted that the benefits received by Claimant from 2015 through September 1, 2021 are TPD benefits for purposes of calculating Employer’s credit entitlement against the 500-week cap on such benefits pursuant to Section 3(2) of Act 111. Claimant appealed to the Board, which affirmed the WCJ.
Holding:
As a preliminary matter the Court found that, although Claimant did not raise or brief before the WCJ or the Board the question of whether Act 111 may constitutionality be applied to his injury, he is challenging the validity of at least a portion of Act 111, and could therefore raise the issue on appeal, as he raised the issue in his petition for review. The question of whether Act 111 may be applied retroactively to injuries that occurred before its effective date to permit employers to take a credit against partial disability payments made pursuant to IREs performed under the now-repealed Section 306(a.2) has been raised and contrary to Claimant’s arguments, the Court has squarely concluded that the credit provisions contained in Act 111 apply retroactively to provide employers with credit for payments of TTD and TPD made prior to Act 111’s effective date.
Affirmed
YELLOW FRIEGHT ISSUES
Mercy Catholic Medical Center v. Debra Ryan (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 16, 2023
Issue:
Whether the WCJ’s findings of fact that Claimant’s claimed injuries were not well pleaded was supported by substantial evidence?
Background:
Claimant filed a WC claim alleging both physical disability and an aggravation of previously existing anxiety and depression. The WCJ circulated a Decision denying the claim petition, in part. The WCJ granted Claimant’s motion to deem all well-pleaded factual averments of the claim petition admitted because of Employer’s failure to file a timely answer, pursuant to a Yellow Freight motion. However, the WCJ determined that the injuries Claimant asserted in the claim petition, including aggravation of her preexisting anxiety and depression, were not well pleaded, thus allowing Employer to offer evidence refuting Claimant’s alleged injuries. The WCJ denied the claim petition as to aggravation of Claimant’s preexisting anxiety and depression. Claimant appealed to the Board. The Board reversed the WCJ’s determination that Claimant’s averments in the claim petition regarding aggravation of her preexisting anxiety and depression were not well pleaded. Therefore, the Board concluded that Employer’s untimely answer constituted a deemed admission of the aggravation of Claimant’s preexisting anxiety and depression and that the WCJ should have granted the claim petition as to a resulting disability and employer’s expert’s testimony was incompetent because his opinion that Claimant did not suffer an aggravation of her preexisting anxiety and depression contravened Employer’s deemed admission as found by the Board.
Holding:
Failure of an employer to timely file an answer is not the equivalent of a default judgment. The claimant still bears the burden of proving all elements necessary to support an award of compensation. Therefore, any evidence introduced before the WCJ regarding facts that were not well-pleaded in the claim petition may be rebutted by evidence presented by the defendant. Whether an injury is causally related to employment requires a legal determination, as such, it cannot be established by default based on an employer’s late answer to a claim petition. Further, the claimant is entitled only to a rebuttable presumption that her disability continues after the last date that the employer should have filed an answer. Here, the description of injury in the claim petition stated simply “Right shoulder. And aggravation of preexisting anxiety and depression.” Therefore, the claim petition did not present a well-pleaded averment regarding the alleged aggravation of Claimant’s preexisting anxiety and depression. There was a complete absence of explanation of this alleged injury. The vagueness of the averment is illustrated by Claimant’s failure even to indicate whether the alleged aggravation arose from the shoulder injury itself or from Claimant’s emotional discomfort with the light-duty job Employer offered her thereafter. Accordingly, Employer did not lose its ability to contest that issue. The Board’s order reversing the WCJ’s denial of that part of the claim petition relating to aggravation of Claimant’s preexisting anxiety and depression was reversed.
Reversed.
FIREFIGHTER CANCER CLAIM
Nicholas Caruccio v. Shrewsbury Borough (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 3, 2023
Issue:
Whether the WCJ unduly increased Claimant’s burden of proof as a firefighter-claimant, which was merely to establish that his exposure to a Group 1 carcinogen “possibly” caused Claimant’s cancer?
Background:
Claimant worked for Employer as a volunteer firefighter from 1987 to present, eventually achieving rank of fire department President. In December 2018, Claimant was diagnosed with chronic lymphocytic leukemia (CLL). On May 4, 2020, Claimant filed a claim petition, seeking disability benefits. Claimant alleged that he sustained CLL due to his exposure to carcinogens as a firefighter. The WCJ credited Employer’s expert’s opinion and rejected claimant’s expert’s opinion to the extent they conflicted with each other. The WCJ specifically noted the testimony that there are no IARC Group 1 carcinogens linked to the development of CLL. Claimant appealed to the Board, which affirmed the WCJ’s decision.
Holding:
First, the claimant, as a firefighter, must demonstrate that he has cancer which was caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen by the IARC. Next, the claimant is entitled to an evidentiary presumption of compensability, provided that the claimant meets the threshold requirements of section 301(f) of the Act. Finally, if the claimant can establish an occupational disease as defined by Section 108(r) and the evidentiary presumption of compensation as defined by Section 301(f), the burden of proof shifts to the employer, which can rebut the presumption with substantial competent evidence that shows that the firefighter’s cancer was not caused by the occupation of firefighting. The general causation requirement serves a gatekeeping function: it recognizes that different types of cancers have different etiologies, and it weeds out claims for compensation for cancers with no known link to Group 1 carcinogens. The provision requires merely credible evidence of a general causative link between the claimant’s type of cancer and a Group 1 carcinogen. However, there is no requirement that a factfinder credit a firefighter-claimant’s evidence of general causation. Claimant was unable to establish Section 108(r) general causation because he failed to demonstrate that his exposure to several IARC Group 1 carcinogens possibly caused his CLL. Employer’s expert concluded that there was no scientific evidence demonstrating a link between Claimant’s workplace exposures to IARC Group 1 carcinogens and Claimant’s particular cancer and Claimant’s expert’s testimony was rejected. The WCJ considered the evidence and made a reasoned decision to credit one expert opinion over another. This decision was neither arbitrary nor capricious and is supported by substantial evidence of record.
Affirmed.
PROHIBITED SELF-REFERRALS
Bernice Bennett v. Jeld Wen, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 6, 2023
Issues:
Whether the Board usurped the jurisdiction of the Hearing Office by granting a de novo hearing and allowing appeals nunc pro tunc of unappealed decisions of the Bureau? Whether the Board erred in reversing the WCJ’s assessment of penalties?
Background:
Claimant sustained a work-related injury in 2010. By a C&R Agreement approved by the WCJ on October 19, 2017 the parties resolved the wage loss and specific loss claims relative to Claimant’s work injury. The C&R Agreement indicated that Employer reserved the right to either continue administering Claimant’s medical benefits in accordance with the Act or to fund a CMS-approved MSA. Later Claimant’s doctor prescribed a compound cream. When Carrier did not issue payment, Pharmacy filed Fee Review Applications with the Medical Fee Review Section of the Bureau. Ultimately, 12 administrative determinations were issued ordering payment of the bills with interest, which Employer did not appeal. Employer made no payments to Pharmacy for those dates of service. Eventually, Claimant filed the Penalty Petition. The WCJ issued a July 2020 Decision finding that Claimant had met her burden of proving that Employer violated the Act. The Board granted Employer’s Petition for Hearing. The Board concluded that a de novo hearing under Section 425 was warranted to address the issue of a prohibited self-referral and to allow for submission of Hearing Officer Torrey’s Fee Review Decision into evidence. The Board concluded that while Claimant had established that there were unpaid bills, Employer consistently defended its actions, arguing that the bills were not payable because of the relationship between prescriber and Pharmacy and asserting that its attempts to obtain the information of that relationship were consistently rebuffed. The Board held that while any penalty would be paid to Claimant, the WCJ directed Employer to pay Pharmacy tens of thousands of dollars, allowing for the potential that prescriber and Pharmacy would reap a financial benefit from Claimant’s Penalty Petition. Any penalty award to Claimant is tied to the potential improper conduct of her physician and pharmacy. The Board concluded that, if the improper conduct was confirmed, it would decline to allow financial benefit from it. In the interest of justice, the Board vacated the WCJ’s grant of the Penalty Petition and award of unreasonable contest fees and ordered a de novo hearing before the Board, after which the Board would decide the issue of the Penalty Petition. After the de novo hearing, the Board affirmed that, Employer established that it had not violated the Act, and the Board denied and dismissed the Penalty Petition.
Holding:
The Board did not abuse its discretion or err in granting the Section 425 de novo hearing under these highly unusual circumstances, or in relying on the evidence presented therein that confirmed the unpaid bills were the result of a prohibited self-referral for which no claim for payment could be made under Section 306(f.1)(3)(iii), we affirm the Board’s denial of the Penalty Petition and Claimant’s request for unreasonable contest attorneys’ fees.
Affirmed.
RES JUDICATA AND COLLATERAL ESTOPPEL
Soan D. Frias v. Amazon.com (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 18, 2023
Issue:
Whether res judicata and collateral estoppel barred litigation of the Review Petition where a Stipulation of Facts included express language reserving the right to further litigation of the injury description?
Background:
In 2019, Claimant sustained an injury to his lower back during the course and scope of his employment. Claimant filed Claim and Penalty Petitions. In 2020, the parties agreed to resolve the pending Claim and Penalty Petitions through a Stipulation. The Stipulation was approved by Decision & Order. Through the Stipulation, the parties agreed that Claimant had sustained a work-related injury in the nature of a lumbar strain/sprain. The Stipulation reserved Claimant’s right to file additional petitions in the future, including but not limited to a Review Petition to amend the injury description to demonstrate that the work injury consisted of additional injuries. Later in 2020, Employer filed a Termination Petition alleging that Claimant fully recovered from his work injury as of the date of a 2020 IME and could return to work without restrictions. Claimant filed a Review Petition, alleging that the description of the work injury was incorrect and did not recognize his work-related lumbar disc protrusion with radiculopathy and spondylosis, as previously diagnosed by its medical expert. The WCJ circulated a Decision & Order granting the termination of benefits and denying the Review Petition. Relying on Weney v Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc, the WCJ then went on to say that “even if” Claimant’s evidence was credible, the Review Petition would nevertheless fail pursuant to res judicata as the Stipulation approved in the 2020 Decision resolved a Claim Petition in which Claimant offered expert medical testimony regarding the description of his work injury, similar to that raised in the current Review Petition. The WCJ found that, even though the Stipulation reserved the parties’ rights to file additional petitions in the future, including a Review Petition to amend the injury description “whether the expanded diagnoses were present at the time of the Stipulation or arose later,” where parties stipulate to a description of injury, and the claimant knew of additional injuries not included in the Stipulation, the subsequent Review Petition to add the previously known injuries was barred by technical res judicata and collateral estoppel. The description of the injury remained unchanged and should have been litigated if the parties still disagreed. There was nothing new in this litigation regarding Claimant’s allegation of his work injury. Claimant appealed to the Board. The Board affirmed.
Holding:
The Court questioned whether the issue presented is one that was properly before the Court as the WCJ did not find the Review Petition was barred by res judicata. The WCJ’s discussion of the significance of the Stipulation and res judicata was in the alternative, after he had found that Claimant failed to meet his burden on the Review Petition based on the WCJ’s credibility determinations. The WCJ only addressed the question of the res judicata effect on the Stipulation in the alternative if, hypothetically, claimant’s medical expert’s testimony had been found credible. Before the Board, Claimant did not question the WCJ’s credibility determinations or challenge the WCJ’s actual basis for denying the Review Petition. Instead, he raised an issue that had been addressed by the WCJ in a hypothetical, and which did not ultimately serve as the basis for the WCJ’s disposition and denial of the Review Petition. Perpetuating the error, the Board, in turn, addressed only that hypothetical issue. On appeal to this Court, Claimant continues to raise the issue of whether the WCJ erred by finding res judicata barred litigation of the Review Petition and misconstrued the effect of the parties’ Stipulation. However, because Claimant did not challenge the dispositive issue of whether he failed to meet his burden in the Review Petition, there was nothing further for the Court to review.
Affirmed.
PENNSYLVANIA LEGISLATIVE UPDATES
There are presently pending before the Pennsylvania General Assembly, a number of Bills which seek to amend the Pennsylvania Worker’s Compensation Act in various ways. When these Bills are proposed by Pa House members, they go through the House’s Labor and Industry Committee. When, and if, the Bill is passed by the House, it must go through the Pa Senate for additional review. As of this date, two of the proposed Bills have passed the House, and are under review by the Pa. Senate’s Labor and Industry Committee. They are summarized below. At last check the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration or consideration.
Regular Session 2023-2024
House Bill 760
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.
Subject: Direct Deposit for Workers’ Compensation
This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
House Bill 930
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation. Expanding Workers’ Compensation for Permanent Disfigurement
Subject: Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
10/01/2023 – 10/31/2023
ACCIDENTS WITHIN THE COURSE OF EMPLOYMENT
Mario Pozadas v. Capital Iron Associates, LLC; Hartford Underwriters Insurance Company
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
No. A-0162-22; 2023 WL 7119507
Decided: 10/30/2023
Issues:
(1) Whether the Judge erred in denying Hartford’s Motion to Dismiss the insurance carrier for lack of coverage? (2) Whether the petitioner was within the course and scope of his employment at the time of his accident?
Background:
Petitioner is the employee and owner of Capital Iron Associates, a structural steel company that makes estimates for welding projects and then produces and installs the material. Petitioner’s work is about sixty percent travelling to and from projects. Petitioner regularly decides the vehicle and route he will use to get to the projects. Petitioner obtained an insurance policy from Hartford, which provided workers’ compensation coverage for the petitioner. The policy was effective October 13, 2015 through October 13, 2016. The policy expired on October 13, 2016. The petitioner emailed the insurance broker on October 14, 2016 and agreed to call her later that day to finalize changes to the policy. One of those changes included excluding himself from coverage.
On that same day, October 14, 2026, the petitioner received a call and met with a client about a project. After meeting with the client, the petitioner dropped off his company truck at his shop and used a friend’s motorcycle to travel from the shop to the project to prepare an estimate. The petitioner chose to take a longer route to the project to enjoy the nice weather, rather than taking a direct route. The Judge found that the petitioner was back on a work-related mission before the accident.
Petitioner filed a workers’ compensation claim alleging injuries arising from the accident. Hartford filed an answer denying coverage and filed a Motion to Dismiss for lack of coverage. Petitioner argued that the nonrenewal did not comply with statutory notice requirements. Harford sought to withdraw its Motion to Dismiss and file a new motion in order to determine the Petitioner’s coverage. Hartford was unable to provide specified witnesses at trial and the Judge found that this denied Petitioner a speedy and efficient resolution of his claim. The Judge also rejected Hartford’s effort to withdraw the motion and file a new motion. The Judge additionally denied the original Motion to Dismiss, holding that coverage was in effect at the time of the accident. A second Judge found that the petitioner was within the course and scope of his employment at the time of the accident and that his injuries were compensable.
Holding:
On appeal, Hartford argues that the Judge’s decision regarding dismissing the Motion to Dismiss for lack of coverage, violated their due process rights. The Court declined to consider the due process issue as it was not raised in the workers’ compensation court.
The Court considered the definition of scope of employment in N.J.S.A. 34:15-36. The Court noted that personal errands while travelling to or from a job site are outside the scope of employment. Here, there was no evidence the petitioner performed a personal errand. It was the petitioner’s intention to go to the job site and prepare an estimate. The record supports the Judge’s factual finding that the claim is compensable.
Affirmed.