PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
12/1/2023 – 12/31/2023
EMPLOYER AND CO-EMPLOYEE IMMUNITY FROM LAWSUITS
John Brown v. George Gaydos, t/d/b/a Gaydos Construction
Superior Court of Pennsylvania – Published Opinion
Decided: December 7, 2023
Issue:
Whether the Court erroneously concluded that Defendant construction company was immune from third-party liability as Plaintiff’s co-employee?
Background:
In 2007 or 2008, Gaydos began doing general construction work as a sole proprietor using the name Gaydos Construction. For the business, Gaydos purchased various trucks and tools. On April 9, 2016, Gaydos and his cousin, Raymond, signed a partnership agreement to operate a business under the name ACS. All concrete and masonry jobs were bid and performed by ACS. The construction equipment and tools were owned by Gaydos, including a skid loader. Gaydos and Raymond agreed that each of them would furnish any equipment or tools they owned individually that were needed to perform the work on ACS’s jobs. They agreed that ACS would not own those tools and equipment and would not compensate either of them for use of those tools and equipment. Plaintiff began working as an ACS employee on September 1, 2016. On that day, the skid loader owned by Gaydos was at the site. As Plaintiff attempted to enter the skid loader, the arm of the skid loader caught his body, seriously injuring him. He thereafter made a claim for workers’ compensation benefits from ACS. The workers’ compensation claim was not disputed. Plaintiff initiated the civil action against Gaydos, alleging his negligence in improperly maintaining the skid loader and failing to supervise or train Plaintiff on its use. Gaydos filed a motion for summary judgment asserting that Plaintiff’s claims were barred by the WC Act.
Holding:
In exchange for receiving workers’ compensation benefits without having to prove negligence, employees may not sue their employers in tort for injuries they incurred in the course of their employment. Nevertheless, the courts of this Commonwealth have recognized the “dual capacity” doctrine, where an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as an employer. This doctrine is inapplicable when the employee’s compensable injury occurred while he was actually engaged in the performance of his job. Gaydos held an ownership interest in ACS and had the ability to direct ACS employees, including Plaintiff, with respect to the work to be performed and the equipment that could be used for each task. However, as an LLC, ACS was a distinct legal entity and, therefore, Gaydos was not personally responsible for ACS’s legal obligations, such as maintaining workers’ compensation insurance for its employees. Plaintiff filed his workers’ compensation claim against ACS rather than Gaydos. As Gaydos did not directly employ Plaintiff and did not exert exclusive control over ACS, there remained a genuine issue of material fact as to whether Gaydos was Plaintiff’s “master” under the WC Act. The trial court erred by granting summary judgment in favor of Gaydos on the basis of the employer immunity. The trial court also erred in granting summary judgment on the alternative basis that Gaydos was Plaintiff’s co-employee at the time of the accident, and, therefore, entitled to immunity. The mere fact that both parties held positions of employment with the same employer at the time of the accident is not sufficient to show that they were in the same employ at the time of the accident. Rather, the act or omission must occur while both employees are in the course of their performance of duties for the employer. There is a genuine issue of material fact as to whether Gaydos was acting in furtherance of his duties as an employee/co-owner of ACS at the time of Plaintiff’s injury.
Reversed and Remanded.
FILING A TERMINATION PETITION WHILE AN APPEAL IS PENDING
Joseph Marvelli v. U.S. Foods, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 21, 2023
Issue:
Whether the WCJ erred by addressing Employer’s Termination Petition while Claimant’s appeal of the injury description, as determined by another WCJ was still pending before the Board?
Background:
Claimant experienced sudden pain in his neck, shoulders, and upper back. Employer accepted liability for the injury through a medical-only Notice of Compensation Payable (NCP), which described the injury as a strain or tear of the shoulder. Claimant submitted Claim, Reinstatement, and Review Petitions, in which he alleged that the injury description should be expanded to include injuries to his neck and back, including lumbar radiculopathy. Employer filed a Review Petition of its own, in which it sought to amend the injury description from a shoulder injury to a strain of the cervical spine, consistent with the results of an IME of Claimant. The WCJ amended the description of the work injury to a “cervical spine strain with strain of the surrounding paravertebral area.” On appeal to the Board, Claimant argued that his proposed amendment of the injury description was erroneously rejected. While Claimant’s appeal of first WCJ decision was pending before the Board, Employer filed a Termination Petition, in which it alleged that Claimant was fully recovered from his work injury as of March 15, 2019. The WCJ dismissed it on the basis that the injury description was not settled and currently on appeal to the Board. The Board vacated the WCJ’s dismissal of the Termination Petition and remanded for a decision on its merits. On remand, the WCJ granted the Termination Petition.
Holding:
Employer was not barred from filing its Termination Petition while his appeal was pending before the Board. Bechtel Power Corporation holds that when an appeal is pending, a party may not file a petition that would essentially relitigate issues identical to those to be reviewed on appeal. However, the prohibition of a subsequent petition applies when both the issues and facts in the two petitions are identical. Alternately, when the petitions are based on different sets of facts, there is no re-litigation of issues that have already been decided and a party is not barred from filing a subsequent petition while the previous petition is on appeal. Employer’s Termination Petition did not seek to relitigate any factual findings settled by the previous litigation. Further, it was based on a different set of facts from those underlying Claimant’s Claim, Reinstatement, and Review Petitions. Most notably, Employer’s Termination Petition did not challenge the injury description as it was already determined by first WCJ.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
Craig A. Davis v. XPO LTL Solutions (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 22, 2023
Issue:
Whether the WCJ erred in reinstating Claimant’s benefits as of the date he filed his Reinstatement Petition?
Background:
In 2013 Claimant sustained a lower back injury during the course and scope of his employment as a dock worker with Employer. Employer requested an IRE, which determined that Claimant had a 6% impairment rating under the 6th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) and 10% impairment based on the 4th Edition of the AMA Guides. Employer filed a Notice of Change, modifying Claimant’s disability status from total to partial as of the date of the IRE. Claimant did not contest the Notice of Change at the time of its filing. On February 4, 2021, before the 500 weeks of his partial disability expired, Claimant filed a Reinstatement Petition seeking a reinstatement of his TTD benefits effective the date of the IRE. The WCJ granted the reinstatement of Claimant’s benefits back to TTD status as of the date Claimant filed the Reinstatement Petition. The Board affirmed.
Holding:
Claimant did not challenge the decision modifying benefits. Claimant did not file his Reinstatement Petition seeking reinstatement in the instant case until February 4, 2021. Therefore, the WCJ correctly reinstated Claimant’s total disability status as of the date he filed his Reinstatement Petition, rather the date of the IRE.
Affirmed
JUDICIAL DISCRETION
Lorraine Majette v. Allentown School District (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 22, 2023
Issue:
Whether the WCJ failed to consider and appropriately weigh her evidence, and is the decision supported by substantial evidence?
Background:
Claimant was a special education teacher with Employer. Claimant filed the Claim Petition alleging that during her morning duty two boys fighting in the hallway struck Claimant in her back and she was slammed into a wall. Claimant sought ongoing full disability benefits beginning that date. The WCJ found Claimant met her burden of proving she sustained a compensable work injury on February 19, 2019. The WCJ did not include shoulder injuries or rotator cuff tears in the description of Claimant’s injury. The WCJ further found Claimant fully recovered from her back injuries as of January 9, 2020 and suspended her wage loss benefits on that date. The Board affirmed the WCJ Decision, concluding the WCJ did not err when she found Claimant did not sustain a work-related injury to her shoulders.
Holding:
After considering Claimant’s testimony and the medical evidence presented, the WCJ found Claimant suffered a work injury, albeit not the full extent she alleged in her Claim Petition. The WCJ made reasonable credibility determinations and weighed the evidence, which a WCJ has authority to do in workers’ compensation cases. Ultimately, Claimant did not meet her burden of proving the incident at work caused a shoulder injury. Substantial evidence supports the WCJ’s findings, and the Board did not err when it affirmed the WCJ Order.
Affirmed.
George Roscoe v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 20, 2023
Issue:
Whether the WCJ improperly admitted and credited the amended IRE report?
Background:
On March 20, 2003, Claimant suffered a right knee fracture. Since then, his disability status has alternated between total and partial. In 2012, the parties resolved a petition for modification via stipulation that changed Claimant’s disability status from total disability to partial disability. The 2012 modification was deemed effective as of August 15, 2011. On August 12, 2020, Claimant filed a petition seeking to reinstate total disability because he alleged that the IRE conducted in 2011 was unconstitutional. On February 8, 2021, this petition was granted, and Claimant’s total disability status and benefits were reinstated as of August 12, 2020. An IRE on August 12, 2021 concluded that Claimant was 3% impaired. During her testimony, the IRE doctor noted an error she had made in her initial report. That same day, October 1, 2021, she issued an amended IRE report correcting the error, opining a 4% impairment. The WCJ granted Employer’s modification petition and modified Claimant’s benefits to temporary partial disability as of October 1, 2021.
Holding:
The amended IRE report was not inadmissible and could be credited by the WCJ. The admission of evidence is within the sound discretion of the WCJ. A WCJ’s determination regarding the admission of evidence will not be overturned without a showing of an abuse of that discretion. The WCJ acted within her discretion in admitting the amended IRE report.
Affirmed.
ALLEGED ATTORNEY NEGLIGENCE
Kelly A. Finck v. Union County Commissioners (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 18, 2023
Issues:
Whether Claimant’s counsel was ineffective by failing to present additional evidence?
Background:
On October 30, 2016, Claimant allegedly slipped and fell on a wet floor while working as a cook, injuring her hip. Claimant filed her first claim petition on February 10, 2017. Thereafter, Employer offered Claimant a light-duty, part-time position as a receptionist, and Claimant worked in that capacity from August 24 until October 10, 2017. Prior to returning to light-duty work, Claimant’s husband was convicted of an election-related offense and sentenced to a period of incarceration. The light-duty position Claimant was assigned was located just outside the election board’s office, and, as a result, Claimant had frequent contact with individuals she blamed for her husband’s arrest. On April 11, 2018, Claimant filed a second claim petition alleging anxiety disorder and panic attacks caused by actions of other County employees. The WCJ denied and dismissed both claim petitions. The Board affirmed.
Holding:
While the effective assistance of counsel is not constitutionally mandated in the workers’ compensation context, proven incompetency may constitute cause shown for a rehearing under Section 426 of the Act. However, an attorney’s mere misjudgment about a strategic choice, which was a conscious and deliberate decision, will not be sufficient to warrant a reversal of the Board’s discretionary decision to deny a rehearing. For attorney incompetence to amount to “cause shown” in this context, the claimant must satisfy two elements: (i) objective incompetence on the part of counsel, and (ii) manifest injustice to the claimant flowing from that objective incompetence. Here, Claimant’s counsel reasonably could have concluded that further evidence in an already evidence-rich case could divert the WCJ’s attention from the most important issues. Counsel could have reasonably concluded that further cross-examination, too, would detract from the overall message of Claimant’s case, unduly burden the witnesses, and prejudice Claimant’s case. And finally, counsel could have reasonably concluded that the “gossiping” of which Claimant complained was not sufficiently egregious or prejudicial to Claimant’s case to distract from the issues to which counsel wanted to direct the WCJ’s attention. Further, the record belies any suggestion of incompetence. Therefore, the claimant has failed to meet the standard.
Affirmed.
OFFSETS – SEVERENCE BENEFITS
Warminster Township v. Sean Murray (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 20, 2023
Issue:
Whether the Board’s conclusion that Employer was not entitled to a credit for severance benefits that Claimant received under his separation agreement was correct?
Background:
Claimant worked as a skilled laborer in Employer’s public works department for 13 years. Claimant went on paid leave in March 2019 due to an ongoing injury to his right knee. Claimant never returned to work and ultimately signed a separation agreement on December 6, 2019, resigning his position and releasing Employer from liability for various legal claims in exchange for one year’s salary.
Holding:
The Court affirmed the Board’s order in part and reversed in part. The Court reversed to the extent the Board concluded Employer was not entitled to a credit for net severance benefits Claimant received under his separation agreement and remanded to the Board with instructions to further remand to the WCJ for calculation of the correct credit, consistent. Employer should have received a credit for payments made to Claimant under the separation agreement, which fell squarely within the definition of a “severance benefit.” Claimant’s separation agreement provided he would receive one year’s salary, totaling $48,422.40, “subject to all required withholdings and deductions, with the exception of any deductions for pension and health insurance.”
Reversed and Remanded.
MENTAL/MENTAL INJURIES
Erin Smith v. Warwick School District, et al (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 20, 2023
Issue:
Whether the Board erred in concluding Claimant failed to establish the existence of an abnormal working condition?
Background:
On April 20, 2017, Claimant filed a Claim Petition alleging that on April 23, 2014, while working as a teacher, she experienced disabling psychological injuries because “Employer intentionally, recklessly, and/or negligently falsely accused the Claimant of child abuse.” The WCJ found Employer’s discipline of Claimant for her actions regarding a student was “unusual.” Further, the WCJ found Claimant met her burden of proving a psychological injury, “adjustment disorder with mixed anxiety and depressed mood,” and it resulted from her experiences during April and May 2014. The WCJ granted Claimant’s Claim Petition and awarded her benefits. Both the School District and Claimant appealed the WCJ decision to the Board. The Board disagreed with the WCJ’s conclusion that Claimant established the existence of an “abnormal working condition.”
Holding:
In this mental/mental case, Claimant must prove she suffered the injury caused by her employment and that an abnormal working condition caused the mental injury. Psychological injury cases are highly fact-specific and must be considered in the context of specific employment. The WCJ found an abnormal working condition existed because the particular discipline Employer meted out, a five-day suspension without pay, was unusual given the lack of evidence to support it. However, as the Board indicated, not agreeing on the ultimate decision by the administration, obtained through the proper procedures, does not create an abnormal working condition. The WCJ credited Employer’s witnesses who testified the events were not highly unusual or extraordinary, including that it was not unusual for complaints of suspected child abuse being made to authorities, nor was it unusual for a school district to investigate allegations of suspected child abuse and it was not unusual for a school district to discipline an employee for deficiencies in performance, for an employee or union to file a grievance, for an arbitrator to partially grant and partially deny a grievance, for a school district to remove a teacher from a classroom and place her in an administrative office during an investigation, nor was it unusual for a school district to change the assignment of a teacher. Additionally, an independent consultant, testified the circumstances Claimant encountered were not unusual. This type of situation was not completely out of the ordinary for a teacher to potentially experience, and the investigation was done with professionalism and through the proper procedures. Disagreeing with the result of a proper investigation does not transform that investigation into an abnormal working condition. This Court did conclude abnormal working conditions existed when an employer accused its office manager of embezzlement and threatened her with jail, despite knowing the accusation was false. Miller v. Workers’ Comp. Appeal Bd. (New Wilmington Fam. Prac.). This Court also held abnormal working conditions existed when an employer falsely accused an office clerk of committing a wrongful act, intimidated her, and threatened to terminate her employment, all despite knowing the accusation was false. U.S. Airways v. Workers’ Comp. Unlike in the present case, in Miller and U.S. Airways, employers knowingly made false accusations and participated in other intimidating or aggressive actions. In the case of Claimant, someone filed a complaint with the authorities and Employer investigated it with professionalism and with proper procedures. The Board did not err in reversing the WCJ when the Board held Claimant failed to establish the existence of an abnormal working condition in her “mental/mental” claim for workers’ compensation benefits.
Affirmed.
CONCURRENT EMPLOYMENT
Resources for Human Development, Inc., et al v. Sherry Dixon (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: December 20, 2023
Issue:
Whether the WCJ’s decision increasing Claimant’s AWW to include her concurrent employment for Public Partnerships was erroneous?
Background:
Claimant, a home health aide, sustained a work-related injury when a patient fell onto her. Employer accepted an injury in the nature of a multiple trunk strain or tear. The NTCP listed Claimant’s weekly compensation rate as $468.00 based on an AWW of $520.00. Claimant filed the Review Petition, alleging that her AWW did not include wages from her concurrent employment as a private duty home health aide with Public Partnerships. The WCJ found Claimant had concurrent employment. The Board affirmed.
Holding:
The WCJ correctly distinguished that the law does not require Claimant to have been working for Public Partnerships on her actual day of injury to receive a higher AWW, and that Claimant’s longstanding and ongoing employment with Public Partnerships constituted concurrent employment. Claimant was concurrently employed at the time of her injury. The employment relationship remained sufficiently intact so as to constitute concurrent employment for purposes of Section 309(e). Further, substantial evidence supported the WCJ’s findings, and the conclusions were consistent with Section 306(e) and precedent.
Affirmed.
EMPLOYMENT RELATIONSHIP – BORROWED SERVANT
Anthony Mason v. NE Architectural Products et al.
Superior Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 21, 2023
Issue:
Whether the trial court erred in ruling that Plaintiff was Daron’s borrowed employee as a matter of law?
Background:
Mason (Plaintiff) instituted a negligence action following a work-related injury he suffered while working at defendant Daron’s manufacturing plant. Approximately a month prior to the injury, Plaintiff went to Express Services, Inc. (Express), a temporary employment agency, in search of employment. When Plaintiff arrived at Daron for work, one of Daron’s supervisors gave him a tour of the facility, and provided him with hearing protection, eyewear, and gloves. Daron had a “brief” discussion with Plaintiff concerning his job responsibilities. The accident occurred when Plaintiff stopped the conveyer belt after noticing “a brick was angled improperly” as it entered the palletizer. Plaintiff initiated this negligence action against Daron and Daron thereafter filed an answer and new matter, and later, a motion for summary judgement, asserting it was statutorily immune from liability as Plaintiff ‘s employer. The trial court granted Daron’s motion and entered judgment in its favor.
Holding:
The trial court found Daron was immune from liability under the WCA because Plaintiff was his “borrowed employee,” as Plaintiff passed under the Daron’s right of control with regard not only to the work to be done but also to the manner of performing it. The Court found no error here. There was no contract between Express and Daron and, therefore, no explicit language describing the relationship between the parties. Daron directed Plaintiff as to the manor of his work and trained him how to do it. The focus is on whether Daron had the right to control not only the work to be done but also the manner of performing it, regardless of whether Daron “actually exercised” that control. Accordingly, the trial court did not err or abuse its discretion when it determined, as a matter of law, that Plaintiff was Daron’s “borrowed employee” at the time of his accident, and that, therefore, Daron is immune from civil liability under the WCA.
Affirmed.
MEDICAL FEE REVIEWS
Pennsylvania L.C.B. v. 3B Pain Management (Bureau of WC Fee Review H.O.)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 4, 2023
Issue:
Whether the Hearing Officer erred by ruling that Employer was liable for payment of Claimant’s medical and chiropractic treatment?
Background:
Claimant fell in the parking lot outside Employer’s store. Claimant filed a claim petition alleging that he sustained an injury in the course and scope of his employment. The WCJ granted the Claim Petition, describing Claimant’s injury as a “meniscal tear of the right knee and chondromalacia of the femoral and tibial condyle of the right knee.” Provider administered chiropractic treatment to Claimant. This treatment consisted of spinal manipulation relating to low back pain, manipulation of Claimant’s knees and his right hip for pain, low level laser treatment on his right knee, and therapeutic massage for unidentified muscle spasms. Provider billed Employer’s TPA for this treatment as it related to Claimant’s work injury. TPA denied payment for a large part of these invoices on the basis that the procedure codes were not valid reimbursable codes and/or were invalid for reimbursement under the Act. Provider filed a fee review application and the Bureau’s Fee Review Section determined that the amount owed for each invoice was $0. Provider contested the fee review determinations, and the Hearing Office assigned the Hearing Officer to conduct hearings. At the hearings, TPA argued that Provider’s invoices were for treatments to Claimant’s right knee, left knee, left hip, and back, which were not related to Claimant’s accepted work injury. Provider asserted that, because TPA’s denials were based on a lack of causal relationship between the treatment and the work injury, TPA was required to seek utilization review. The Hearing Officer determined that Provider was entitled to reimbursement for all of the treatment it provided to Claimant because Employer/TPA had neither sought UR of Provider’s treatment, nor filed a review petition related to said treatment. Employer appealed to this Court.
Holding:
The fee review process is limited to the timeliness of the employer’s payment (or denial) and the correct amount of reimbursement owed to the provider. The fee review process presupposes that liability has been established. Once liability for a work injury has been established, the employer may file a modification petition to change the scope of the accepted injury, or it can seek UR. A claimant may be under treatment for an array of medical problems, only some of which relate to the work injury. It is for the UR organization to sort this out. If the treatment was prescribed for a medical problem that is not work-related, a fortiori it is not reasonable or necessary for treatment of the accepted work injury. Here, Employer’s claim that the disputed treatment was not related to Claimant’s work injury was just another way of stating that it was not a reasonable or necessary ‘procedure’ for treating Claimant’s ‘diagnosis.’ Employer was obligated to seek UR to dispute liability for Claimant’s treatment.
Affirmed.
ORDER THAT OPINION BE REPORTED
Bernice Bennett v. Jeld Wen, Inc. (WCAB)
On December 15, 2023, upon consideration of Respondent Jeld-Wen, Inc.’s Motion for Publication of Memorandum Opinion (Motion), the Court granted the Motion. The Memorandum Opinion, filed October 6, 2023, will be designated an opinion and will be reported.
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.
PENNSYLVANIA LEGISLATIVE REVIEW
As noted previously, 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. We are monitoring these bills. As of December 31, 2023, 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
12/01/2023 – 12/31/2023
EMPLOYMENT STATUS AND SCHOOL
Soto v. Hoosier Care, Inc.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-0507-22; 2023 WL 8539408
Decided: 12/11/2023
Background:
Soto was injured while working for Hoosier. Soto filed a claim petition alleging injuries to her neck, head, back, and shoulder. The claim was settled and approved by a workers’ compensation judge. The agreement acknowledged Soto’s “re-opener” rights, which allow her two years to seek additional medical care as well as an increase in permanent or temporary disability.
Following her injury, Soto worked for different agencies and began taking classes at a college. Ultimately, Soto was out of work after the agency she worked for closed and she received unemployment benefits while remaining a full-time college student.
Soto filed an application for a review or modification of her compensation award a year after her award, alleging she suffered additional pain and had worsened range of motion in her neck and shoulder. Soto was evaluated again by her medical expert who determined she had additional issues with her spine and that her work injury was a material contributing factor.
Hoosier provided medical benefits but declined to provide temporary disability benefits. A WCJ ordered temporary disability benefits and found that Soto was both working and going to college; specifically finding that Soto did not voluntarily leave the workforce. Hoosier moved for reconsideration, which the WCJ denied.
Holding:
On Appeal, Hoosier argued that Soto did not meet her burden of proof “because she was unemployed at the time of her application and failed to prove that she would have been working ‘but for the work related injury.’”
The Court found that the argument is without merit. Soto became unemployed because her employer went out of business. She continued to search for employment and collect unemployment benefits at the time of her application. “[C]ollege attendance alone is not dispositive of her employment status.” The WCJ found that Soto’s testimony that she continued to work and seek employment while also attending school was credible. The record supports that she would have been working if not for the disability.
This case is distinguishable from Tamecki v. Johns-Manville Products Corporation. In that case, a college student was injured during a temporary summer position and received temporary disability benefits until his return to school. Here, Soto testified that her college status did not change her involuntary employment status.
Additionally, Soto established through her medical examiner that her injuries worsened and that the worsened injuries were causally related to her work injury.
Affirmed.
INTENTIONAL WRONG EXCEPTION
Hueman v. Hueman
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-1593-21; 2023 WL 8539709
Decided: 12/11/2023
Background:
A company agreed to perform masonry work as a contractor for a home construction project. The contractor, Wayne, would often hire his cousin, Glen, to help him with masonry jobs and he would be paid in cash with his employment never formally reported. Glen agreed to help with the masonry job and would mix the mortar using a mortar mix which Wayne had modified. Glen used the mixer several times without issue before suffering an injury to the eye when he attempted to start the mixer. The injury resulted in the removal of his eye and the need for a prosthetic.
Glen filed a claim petition. He additionally sued for negligence, which Wayne argued was barred by the Workers’ Compensation Act. Glen testified that although he never received instruction on how to use the mixer, he had experience with it from working on other masonry jobs. He also testified that Wayne had indicated to him that he had insurance. Wayne testified that at the time of the incident, he was unaware of his statutory requirement to have workers’ compensation insurance as he mostly worked by himself. He additionally testified that the modification to the mixer was a common practice in the industry. Wayne’s medical expert concluded that “Glen’s injuries were not ‘attributable to an intentional act’ by the defendants” because the modification was a “long-standing industry practice” and there was not a substantial certainty that the modification would cause the injuries.
Wayne moved for summary judgment arguing that Glen’s claims were barred by the Workers Compensation Act because Glen was an employee, and the modification was not an intentional wrong. Glen alleged the claims were not barred by the Act because Wayne failed to obtain required workers’ compensation insurance and Glen was a casual employee. The court granted Wayne’s motion for summary judgment and dismissed Glen’s complaint with prejudice. The court determined that Glen was Wayne’s employee.
The court found that Wayne’s failure to have workers’ compensation insurance “was not dispositive to permit plaintiff to assert a third-party negligence claim” because it was not an exception to the workers’ compensation bar. The Uninsured Employers’ Fund was intended for situations like this.
Holding:
On Appeal, Glen claims the Fund does not compensate Glen adequately because it does not allow for permanent disability recovery. They additionally argue that there is an issue of material fact as to whether Wayne knew the modification could result in Glen’s injury.
The Court stated that the legislature anticipated situations where employers failed to or refused to compensate their employees under the statute. The Legislature created the Fund and there is also the ability to bring civil and criminal suits.
To demonstrate an intention harm, the employee “must satisfy a two-prong test involving the employer’s conduct and ‘the context in which that conduct takes place.’” To prove the conduct prong, “the employee must ‘establish the employer knew that its actions were substantially certain to result in injury or death to the employee.’” To prove the context prong, “the employee must demonstrate ‘the resulting injury and the circumstances of its infliction were more than a fact of life of industrial employment and plainly beyond anything Legislature intended the WCA to immunize.’”
Here, the Court did not find that Wayne’s actions satisfy the high bar to apply the intentional wrong exception. There is no evidence that Wayne knew the modified mixer would result in injury. In addition, the modification was common practice in the industry.
Affirmed.
Rodriguez v. Shelbourne Spring, LLC, Green Power Developers, LLC, Unity Construction, Rocco A. Dimichino, Sundance Electrical Co., LLC, SF Johnson Electric, Inc., Facility Solutions Group, Johnson Controls Security Solutions, LLC, Managed Business Communications, Inc., SIR Electric, LLC v. Hartford Underwriters Insurance Company
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2079-22; 2023 WL 8868415
Decided: 12/22/2023
Background:
Dionicio Rodriguez (Rodriguez) received benefits under the Workers’ Compensation Act from his Employer SIR Electric, LLC (SIR) after being injured at work. Then Rodriguez filed an action against SIR alleging his injuries were caused by SIR’s negligence, recklessness, and intentional misconduct. SIR wanted defense coverage for the tort claims from Hartford under its employer’s liability insurance policy. The coverage included employer’s liability and workers’ compensation insurance. Hartford denied coverage and asserted it had no duty to defend based on its Employer’s Liability EII exclusion. SIR then filed a third party complaint that Hartford had a duty to defend the negligence claims. Hartford filed a motion to dismiss, which was granted.
Holding:
On Appeal, SIR argued that even though Rodriguez received workers’ compensation benefits, Hartford had a duty to defend the tort lawsuit. SIR additionally argued that Hartford did not have to indemnify SIR for Rodriguez’s claim.
The Workers’ Compensation Act provides that “workers’ compensation is the exclusive remedy, absent proof of an intentional wrong.” Therefore, the tort claims were obligations imposed by workers’ compensation law. However, there is an exception for an injury caused by the employer’s intentional wrong. “[A]n employee seeking to prove an employer committed an intentional wrong must demonstrate either (1) that the employer had a subjective desire to injure, or (2) that ‘based on all the facts and circumstances of the case … the employer knew that an injury was substantially certain to result.’” Substantially certain is a high bar.
The Judge properly found that the exclusionary language in other cases was distinguishable from Hartford’s Employer’s Liability EEI exclusion because the policy was unambiguous because it stated did not provide insurance coverage for “any and all intentional wrongs within the exception allowed under the” Workers’ Compensation Act.
Affirmed.
PRE-EXISTING CONDITION
Smith v. H&H Transportation, Inc.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-3568-21; 2023 WL 8801267
Decided: 12/20/2023
Background:
Donald Smith (Smith) was hired by Employer as a truck driver. Smith was in an accident while driving a truck and sustained injuries to both legs, his left hip, and back. Before the accident, Smith had a history of back pain and received treatment. Smith was seen by an orthopedic surgeon who found that his thoracic and lumbar sprain symptoms were causally related to his injury but also found that his disc abnormalities were not related because they were a degenerative condition. The surgeon further found that Smith could return to work and Employer terminated temporary disability benefits.
Smith filed a Claim Petition and asserted low back pain, leg pain, and knee pain. Smith then was seen by a neurosurgeon who found Smith had several issues and performed five procedures on his back. Smith then filed a Motion for Temporary and Medical Benefits for medications and physical therapy for his back based on the neurosurgeon’s certification and records. Employer opposed the motion.
The Judge found that Smith’s medical records indicated longstanding degenerative issues instead of an acutely post traumatic injury. The Judge further found that work injury did not accelerate or exacerbate his existing issues and ultimately concluded that Smith’s need for treatment was not causally related. Smith appealed.
Holding:
On Appeal, Smith argued the Judge gave undue weight to the orthopedic surgeon’s opinion and that the Judge ignored facts on the record. Specifically, his previous physical examinations and lack of medical treatment for his back prior to the accident.
The Court found that the Judge’s decision was supported by the record. The Judge credited the orthopedic surgeon’s opinion that the injury was not caused or aggravated by the accident and found this opinion to be “credible, logical and consistent, both medically and factually.” His opinion was supported by a comparison of CT scans which showed no worsening of the disc herniation. In contrast, the Judge found the neurosurgeon’s opinion was not supported by the objective testing as it actually contradicted it. The Judge found that there was definite objective proof that there was no evidence of acute T7-T8 pathology related to the accident. The Judge’s findings were reached on sufficient credible evidence in the record, therefore the Court declined to substitute their own factfinding.
Affirmed.
ACCIDENTAL DISABILITY RETIREMENT BENEFITS
Hurley v. Board of Trustees, Police & Fireman’s Retirement System of New Jersey
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2590-21; 2023 WL 8311306
Decided: 12/01/2023
Background:
Hurley was an officer for the Atlantic City Police Department and was in an accident on October 11, 2015 where his police vehicle was struck by another vehicle while on patrol. Following the accident, he was diagnosed with post-concussive disorder and a traumatic brain injury. He treated with workers’ compensation doctors and received physical therapy. The Board of Trustees of the Police and Fireman’s Retirement System (Board) denied Hurley’s request for accidental disability retirement benefits based on the accident. The Board found that Hurley was totally and permanently disabled, but that his “disability was ‘the result of a pre-existing disease alone or a pre-existing disease that [was] aggravated or accelerated by the work effort.’”
Hurley appealed to the Office of Administrative Law. The ALJ heard testimony from Hurley and his expert witnesses. Dr. Gollin, an expert witness in psychiatry, determined that “Hurley suffered from post-concussive syndrome in addition to depressive disorder as a result of the accident.” He further stated that Hurley is permanently disabled as a result of the accident and his prognosis for recovery is very poor. Dr. Pilchman, an expert in psychology, determined Hurley was disabled with an eighty-three percent possibility of being unable to function safely in his job. Dr. Pilchman additionally diagnosed him with post-concussive disorder and major depression as a result of the accident.
Dr. Filippone, the Board’s expert witness in psychology, found no convincing evidence that Hurley was suffering from post-concussive syndrome. He further opined that Hurley was malingering. Dr. Filippone determined that Hurley had a psychological disorder, but it was not caused by the accident.
The ALJ affirmed the Board’s decision denying Hurley’s request for benefits. The Board found Dr. Filippone’s testimony persuasive and concluded Hurley was permanently or totally disabled, but not as a result of the 2015 work-related accident.
Holding:
On Appeal, Hurley argues the ALJ should not have required him to satisfy the test in Patterson v. Board of Trustees, Police & Firemen’s Retirement System, 194 N.J. 29, 33 (2008). He further argued that his disability is a direct result of the 2015 accident.
The Court agreed with Hurley that Patterson is not the appropriate test because Hurley alleged a physical and mental disability. Hurley had to meet the requirements in Richardson v. Board of Trustees, Police & Firemen’s Retirement System, 192 N.J. 189, 192 (2007). This requires Hurley to prove that the mental issues he suffers from were a direct result of the October 2015 accident.
The Court concluded that the ALJ relied on Dr. Filippone’s testimony and reasonably found that “Hurley had a pre-existing condition and failed to satisfy the Richardson requirements for accidental disability retirement benefits.” As a fact-finder, the ALJ has discretion to accept or reject an expert’s testimony, given that there is evidence in the record to support the determination. There was substantial credible evidence in the record supporting the determination that Hurley’s disability was not the direct result of the October 2015 accident.
Affirmed.
Smith v. Board of Trustees, Police and Firemen’s Retirement System
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2606-21; 2023 WL 8715198
Decided: 12/18/2023
Background:
Smith worked as a police officer with the Camden County Police Department. Smith injured herself while restraining a man when responding to a call. Following the incident, she treated with doctors, had procedures, and received physical therapy. A functional capacity examination (FCE) was performed, and Smith was advised by her doctor that she had reached maximal medical improvement and she was discharged from care. Based on the results of the FCE, the doctor did not believe that Smith could return to work as a police officer.
Smith applied for accidental disability retirement benefits. In her application, she claimed to be totally and permanently disabled as a result of the injuries suffered in her work accident. The Board denied the application and concluded Smith did not sustain a permanent and total injury. The Board further concluded that any injury she suffered was not a direct result of the work incident.
Smith appealed and the case was heard by the Office of Administrative Law. An administrative law judge (ALJ) determined the Board’s decision was appropriate as Smith failed to present credible evidence that she was totally and permanently disabled and failed to demonstrate that her injuries were the direct result of the work incident. Smith then filed exceptions with the Board, who affirmed the denial. Next, Smith appealed that decision.
Holding:
On Appeal, Smith argued that she is totally and permanently disabled from the performance of her job as a police officer. She additionally argued that her disability is a direct result of the work incident and that she is entitled to accident disability retirement benefits.
To qualify for accidental disability retirement benefits under the statute, the member must prove permanent and total disability. The ALJ had to determine, based on credible evidence in the record, which expert’s opinion was more credible. The Court determined that there was more than enough evidence in the record to conclude that Smith did not meet her burden to prove that she suffered a total and permanent disability. Even if she had proved she suffered a total and permanent disability, she was still required to prove additional prongs to obtain accidental disability retirement benefits. These prongs include a direct causal connection between the incident and her disability. The ALJ correctly determined that Smith’s medical expert failed to present credible evidence that the shoulder injury was a direct result of the work incident. The ALJ relied on the Board’s medical expert who determined there was a lack of evidence that “she suffered a total and permanent injury as a direct result of a powerful blow or similar forceful trauma to her shoulder during” the work incident. The Court was satisfied with the Board’s adoption of the ALJ’s decision as it “was based on substantial credible evidence in the record and was not arbitrary, capricious, or unreasonable.”
Affirmed.
NEW JERSEY LEGISLATIVE UPDATES
Senate Bill 3309
This bill sets the maximum fees for evaluating physicians for petitioners for the written reports at $1,000. This is an increase of $400 from the previous maximum of $600. In addition, this bill also allows a psychologist, nurse practitioner, or licensed clinical social worker who provides psychological treatment to be paid a fee for testimony or a report.
Last Action: This bill was approved on July 20, 2023 and went into effect immediately.
Proposed Senate Bill 4059
This bill establishes the 21st Century Injured Workers’ Access to Justice Fund. This bill revises the cap on contingency fees to a prevailing party in workers’ compensation matters from 20 percent to 25 percent. In addition, it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind.
Last Action: Reported out of Assembly Committee with Amendments, 2nd Reading, November 30, 2023