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PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
01/1/2024 – 01/31/2024

STANDARD FOR A REHEARING WITH THE APPEAL BOARD

Jesse R. May v. Dana Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 12, 2024

Issue:

Whether the Board exceeded its discretion by denying the claimant the right to a rehearing?

Background:

On August 1, 2018, Claimant, pro se, filed Petitions against Employer, which were consolidated and assigned to a WCJ. Claimant was represented by his former counsel and, with the assistance of said counsel, executed four C&R Agreements in 2003. The C&R Agreements were approved by a WCJ after the WCJ confirmed, at hearings and based on Claimant’s own credible testimony, that Claimant entered the agreements with full understanding of the terms, conditions, and legal significance. In the four C&R Agreements, Claimant agreed to resolve wage loss benefits for work-related injuries. However, Claimant reserved the right to receive continuing payment from Employer for medical expenses for these injuries, with the exception of the C&R Agreement pertaining to his 1993 work-related injury. Essentially, in his Petitions, Claimant alleged that Employer failed to pay certain medical bills under the C&R Agreements and sought to set aside or otherwise void the four C&R Agreements. The WCJ denied the Petitions, concluding that Claimant failed to establish that Employer intentionally failed to pay reasonable and necessary medical bills, that Employer violated the Workers’ Compensation Act, or that the C&R Agreements should be set aside. The Board affirmed the WCJ’s order denying Claimant’s Petitions. Subsequently, Claimant filed a pro se petition for review.

Holding:

The case, Frymiare, stands for the proposition that, where an employer has an obligation to pay medical expenses, the obligation may not be avoided on the basis that some other source may have initially defrayed the costs.  However, the right to subrogation under Section 319 must be established by agreement or contested litigation at hearings held during the pendency of claim proceedings. Further, the right to subrogation must be timely invoked, and a party asserting subrogation rights must exercise reasonable diligence in protecting its interest.  When the claimant has properly preserved a Section 319 claim, Frymiare stands for the proposition that where an employer is obligated to reimburse reasonable and necessary medical expenses under the Act, it must reimburse them, whether that is to a third-party payor via subrogation or directly to the claimant.  A claimant must preserve a claim for direct compensation.  An untimely claim for subrogation or direct compensation cannot serve as sufficient basis for a penalty petition.  Three months after the WCJ had granted his claim petition, Claimant demanded subrogation as constructive trustee for Insurer for the costs of his hospitalization. This subrogation claim was patently untimely, as the demand occurred well after the conclusion of the claim hearing.  In fact, it was not until February 2021, long after a WCJ had granted his claim petition, that Claimant first sought direct compensation from Employer.  Claimant has offered no explanation for his tardiness, nor has he offered to prove an earlier request for direct compensation.  Claimant failed to establish a timely Section 319 claim.  Therefore, the WCJ adjudicating Claimant’s claim petition did not rule on it. Employer was under no legal obligation to pay for Claimant’s hospitalization. Absent a ruling that Insurer was entitled to subrogation or that Claimant was entitled to direct compensation, Claimant failed to establish a violation of the Act. The Board properly affirmed the denial of Claimant’s penalty petition.

Affirmed.

 

MEDICAL FEE REVIEWS

Federated Insurance Company v. Summit Pharmacy (Bureau of WC Fee Review)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 2, 2024

Issue:

Whether the Bureau’s adoption and use of Red Book values in payment disputes is inconsistent with Section 306(f.1)(3)(vi)(A) of the Workers’ Compensation Act which limits the reimbursement of pharmaceuticals to 110% of the AWP of the product?

Background:

Federated Insurance Company (Petitioner) petitioned for review of the Order of the Bureau Fee Review Hearing Office in which a Bureau Hearing Officer ordered Petitioner to pay Summit Pharmacy (Respondent) approximately $72,500 to reimburse Respondent for generic drugs provided to Claimant for her work-related injuries.  In ordering reimbursement in this amount, the Hearing Officer used the “Red Book” values for the prescriptions at issue, which the Bureau adopted as the average wholesale price (AWP) to be used in resolving payment disputes over pharmaceuticals. The Red Book is a privately published, electronic compendium of pharmaceutical and over-the-counter drug “AWPs” available online. It is updated regularly to reflect changes in prices.  At the time relevant to this matter, the publisher of the Red Book was IBM Health Watson, although the publisher can, and does, change.   In its statement of policy, IBM Health Watson indicates that the AWP it publishes is, in most cases, the manufacturer’s suggested AWP and does not reflect the actual AWP charged by a wholesaler, that the values used in the Red Book are reported to it by the manufacturer, and that IBM Health Watson does not independently analyze the data to ascertain the amounts paid by providers, such as pharmacies, to wholesalers.  Beginning in 2019, Respondent submitted to Petitioner, and Petitioner paid to Respondent, bills for drugs dispensed to Claimant which were billed at a wholesale price proposed by Respondent.  Petitioner determined that Respondent’s billed pricing was far above the actual AWP of the drugs, as reported in the National Average Drug Acquisition Cost Index (NADAC). Thus, Petitioner began adjusting its payments to be 110% of AWP as determined using NADAC.  Respondent filed applications for fee review.  The Bureau’s Fee Review Section issued determinations applying a different cost index, known as “Red Book,” based upon the cost containment regulations promulgated under the Act.  The Hearing Officer affirmed the Bureau’s fee review determinations.

Holding:

The Court, in a previous matter, already construed the AWP by using its plain meaning, not as a term of art. The plain meaning of AWP is a price that is an industry average not one that is charged by a single manufacturer, and is a number derived by averaging the wholesale prices of all manufacturers or wholesalers.  The Bureau’s regulatory adoption and use of the Red Book’s values as the “AWP” to resolve payment disputes for pharmaceuticals is inconsistent with the phrase “AWP” as interpreted by the Court.  The Red Book’s values cannot be used as AWP as a matter of law because they are inconsistent with the Act.  A remand was required for further proceedings to determine the appropriate reimbursement due to Respondent.  The court ordered that the Bureau has the obligation to identify a “Nationally recognized schedule” that it will use to determine the AWP of prescription drugs to resolve payment disputes and give notice of that schedule in the Pennsylvania Bulletin annually. The court directed the Bureau to promptly identify and publish in the Pennsylvania Bulletin a “Nationally recognized schedule,” that provides an AWP for pharmaceuticals that comports with Section 306(f.1)(3)(vi)(A) of the Act.

Reversed and Remanded.

 

 

SUBROGATION – MEDICAL BILL LIENS

Wesley Wheatley v. Pyramid Hotel Group (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 25, 2024

Issue:

Whether Claimant should be compensated directly for the costs of his in-patient hospitalization and other costs?

Background:

Claimant was employed as a cook by Pyramid Hotel Group (Employer). He suffered an injury that resulted in an aggravation of his preexisting asthma, preexisting Type 2 diabetes, and ultimately resulted in diabetic ketoacidosis. Claimant was hospitalized for five days, and Claimant’s private healthcare carrier (Insurer) covered the costs of his hospitalization and treatment.  Subsequently, Claimant filed a claim petition pursuant to the Workers’ Compensation Act.  The WCJ granted his claim petition, found that he had sustained a work-related injury, and ordered Employer to pay Claimant total disability benefits and Claimant’s reasonable and necessary medical expenses related to his work-related injury.   After the decision was circulated, Claimant demanded payment for the costs of his hospitalization as constructive trustee for Insurer. Claimant filed a penalty petition asserting unpaid medical bills.  Employer responded that Insurer’s subrogation rights were waived as untimely raised and that Claimant lacked standing to assert Insurer’s lien. The petition was denied.  Claimant appealed to the Board and the Board affirmed.

Holding:

The case, Frymiare, stands for the proposition that, where an employer has an obligation to pay medical expenses, the obligation may not be avoided on the basis that some other source may have initially defrayed the costs.  However, the right to subrogation under Section 319 must be established by agreement or contested litigation at hearings held during the pendency of claim proceedings. Further, the right to subrogation must be timely invoked, and a party asserting subrogation rights must exercise reasonable diligence in protecting its interest.  When the claimant has properly preserved a Section 319 claim, Frymiare stands for the proposition that where an employer is obligated to reimburse reasonable and necessary medical expenses under the Act, it must reimburse them, whether that is to a third-party payor via subrogation or directly to the claimant.  A claimant must preserve a claim for direct compensation.  An untimely claim for subrogation or direct compensation cannot serve as sufficient basis for a penalty petition.  Three months after the WCJ had granted his claim petition, Claimant demanded subrogation as constructive trustee for Insurer for the costs of his hospitalization. This subrogation claim was patently untimely, as the demand occurred well after the conclusion of the claim hearing.  In fact, it was not until February 2021, long after a WCJ had granted his claim petition, that Claimant first sought direct compensation from Employer.  Claimant has offered no explanation for his tardiness, nor has he offered to prove an earlier request for direct compensation.  Claimant failed to establish a timely Section 319 claim.  Therefore, the WCJ adjudicating Claimant’s claim petition did not rule on it. Employer was under no legal obligation to pay for Claimant’s hospitalization. Absent a ruling that Insurer was entitled to subrogation or that Claimant was entitled to direct compensation, Claimant failed to establish a violation of the Act. The Board properly affirmed the denial of Claimant’s penalty petition.

Affirmed.

TERMINATION PETITION – STANDARD FOR A SUBSEQUENT TERMINATION

Marriott International, Inc. v. Renee C. Loguidice (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 3, 2024 

Issue:

Whether Employer met its burden of proof on the Second Termination Petition?

Background:

Claimant, a bartender, tripped and fell at work, and Employer accepted an upper back injury pursuant to a Notice of Temporary Compensation Payable that converted by operation of law. In 2018, Employer filed Termination and Suspension Petitions. Thereafter, Claimant filed a Petition to Review seeking to expand the description of her work injury. In 2019, a WCJ granted the Petition to Review and denied the Termination and Suspension Petitions.  However, this first WCJ did conclude that Claimant had recovered from a lumbar strain and sprain and, therefore, granted the Termination Petition in that respect.  In 2020, Employer filed a second Termination Petition, which was assigned to a second WCJ.  The second WCJ held that Employer sustained its burden of proving that Claimant was fully recovered from her work injuries as of January 14, 2020 and granted Employer’s second Termination Petition. Claimant appealed to the Board.  The Board reversed, citing Lewis and Browne for the proposition that to terminate benefits, an employer whose termination petition was previously denied must show an actual change in the claimant’s physical condition since the last disability determination. To show an actual change of condition, the Board held Employer’s expert was required to assume that the radiculopathy was work-related.

Holding:

The Board exceeded its authority by reweighing the evidence and not viewing the evidence in the light most favorable to Employer, the prevailing party before the WCJ, or as a whole.  When the record is viewed in its entirety, it reflects that Employer’s expert accepted the judicially determined work injuries, distinguishing this matter from Lewis and Browne, and based his opinion of full recovery from those injuries on his physical examination of Claimant and other evidence.  Employer’s expert’s testimony is legally competent to support the grant of the Second Termination Petition. Once an employer sets forth the change in physical condition required to properly bring a petition to terminate benefits, it still bears a high burden.  Employer’s expert’s entire testimony reflects that he did not dispute or disagree with Claimant’s adjudicated injuries, but opined, based on his physical examination of January 14, 2020, and his belief that Claimant’s responses during that physical exam were incredible, that Claimant had fully recovered. Accordingly, that testimony is legally competent, and the Board erred in finding otherwise on this basis.  Employer’s expert accepted the adjudicated work injuries and opined that Claimant was fully recovered from those work injuries. This opinion is legally competent and, as it was found credible by the second WCJ insofar as it satisfies Employer’s burden of proving a change in Claimant’s physical condition.

Reversed.

RES JUDICATA AND COLLATERAL ESTOPPEL

Marie Louise Boulin v. Brandywine Senior Care, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 2, 2024

Issues:

Whether the WCJ’s decision was erroneous and not supported by substantial evidence of record, and amounted to abuses of discretion?

Background:

Claimant sustained a work-related injury on August 28, 2018, while working for Brandywine Senior Care, Inc. Throughout 2019, the parties filed various petitions, which the WCJ resolved in a January 31, 2020 opinion and order.  Various additional petitions and appeals were filed and disposed of.  Claimant, now pro se, appealed a WCJ’s 2021 decision, which the Board affirmed.  In the present matter as to additional petitions, a new WCJ determined that Employer met its burden of proof on its motion to dismiss on the basis of res judicata principles and denied and dismissed Claimant’s petitions with prejudice. The Board affirmed.

Holding:

The WCJ did not err in finding Claimant’s petitions were barred by res judicata principles.  The WCJ concluded that Claimant’s April 2022 petitions, in essence, sought to relitigate an earlier determination that Claimant had fully recovered from her adjudicated injuries other than the right calcaneal fracture and that Claimant had fully recovered from the right calcaneal fracture.  Claimant was represented by counsel in both prior WCJ proceedings and had a full and fair opportunity to establish the ongoing nature of her injuries in the litigation before the WCJ and to rebut Employer’s termination evidence.  To the extent that Claimant’s petitions seek to challenge the WCJs’ determinations, those matters were previously litigated and are collaterally estopped.  A claimant seeking reinstatement of benefits following a termination carries a heavy burden because the claimant has been adjudicated to be fully recovered.  Claimant must establish that disability has increased or recurred since the prior decision and that the physical condition has changed in some manner.  Furthermore, although res judicata principles may not preclude a post-termination reinstatement petition, when a claimant attempts to relitigate the prior termination rather than trying to meet the requisite burden, reinstatement is not warranted.  Although the WCJ and Board decisions are both framed in terms of res judicata principles, they also amount to conclusions that Claimant did not meet the post-reinstatement termination burden. Claimant asserted that the WCJ’s description of her injury failed to include various additional ailments from the August 2018 incident and that she continued to suffer from symptoms rendering her disabled; therefore, her benefits should be reinstated. However, the decisions were fully and fairly litigated while Claimant was represented by counsel and became final after Claimant’s unsuccessful appeals. Claimant’s claims are therefore barred by res judicata principles.  Although WCJ Rago denied and dismissed Claimant’s reinstatement petition (along with her other petitions) as barred by res judicata principles, the practical effect of the WCJ’s determination is that Claimant failed to meet the post-termination reinstatement burden of showing a change in her condition and increasing or recurring disability. The WCJ did not err in denying Claimant’s reinstatement petition and the Board did not err in affirming that determination.

Affirmed.

REASONABLE CONTEST

Sharon Auxier v. Trinity Health Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 9, 2024

Issue:

Whether the Board overstepped its authority when it partially reversed the WCJ’s award of counsel fees on the basis that Employer’s contest was entirely unreasonable?

Background:

Claimant filed a Claim Petition alleging that she sustained an injury in the course of her employment with Employer, as the result of an Employer-provided desk chair that was allegedly ill-suited for sustained sitting. The Claim Petition further alleged that one of Employer’s own doctors administered an injection into Claimant’s spine that greatly increased the pain and caused radicular pain down the leg.  Employer had issued a medical-only Temporary Notice of Compensation Payable, and a few months later, followed with a Notice Stopping Temporary Compensation, asserting that the injury was not work-related.  In a 2020 decision, the WCJ granted the Claim Petition, and ordered Employer to pay a quantum meruit fee of $12,025.00 to Claimant’s counsel.  Employer appealed to the Board, which affirmed the WCJ in part, and vacated and remanded in part.  The Board concluded that the WCJ erred in awarding counsel fees.  The Board remanded with the instruction that a WCJ was to recalculate fees in accordance with its opinion. The parties signed a stipulation of facts allowing for a $1,525.00 counsel fee. After the WCJ dealt with the remand, the Claimant appealed to the Board.  The Board affirmed.

Holding:

The burden of proving a reasonable contest is on the employer, and unless the employer establishes that its contest was prompted to resolve a genuinely disputed issue, the court will presume that the contest was unreasonable. The Board’s sole basis for determining that Employer had any reasonable contest is that Claimant’s Bertolotti’s Syndrome was preexisting to the work injury. However, it is well settled that an employer is liable for an employee’s disability when that disability is caused by a combination of work-related and non-work-related factors, so long as the work-related cause is a substantial contributing factor to the disability.  The Board’s effort to reapportion the award of counsel fees on a pro rata basis was arbitrary and without foundation.  While the issue of a contest’s reasonableness raises a question of law, case law instructs that the question is a fact-dependent one. The WCJ ‘s conclusion that Employer engaged in an unreasonable contest follows logically from his factual finding that Employer was aware of its causal role in Claimant’s injury just days after it occurred. That finding is supported by substantial evidence.  The Court reversed the Board’s order and reinstated the WCJ’s decision.

Reversed.

 

FATAL CLAIM PETITION

TA Operating LLC v. Leonard Maurer (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 17, 2024

Issue:

Whether the Board erred in affirming the WCJ’s decision because claimant’s expert’s opinion regarding the cause of Decedent’s cardiac arrest is premised on facts not contained in the evidentiary record?

Background:

Decedent collapsed while at work and passed away shortly thereafter. Claimant filed the fatal claim petition seeking widow benefits, alleging Decedent’s death resulted from a cardiac arrest while in the course and scope of his employment with Employer. Employer filed an answer denying that the cardiac arrest was work related.  Claimant’s expert opined that Decedent’s cause of death was performing significant physical work in a hot environment, that created a condition of cardiac arrest. While he acknowledged that coronary artery disease probably contributed to Decedent’s death, he stressed that Decedent’s cardiac arrest and death could have happened in the absence of coronary artery disease and that the immediate cause, the proximate cause of the event was precipitated by the work he was doing in that hot environment.  The expert conceded that Decedent smoked one pack of cigarettes a day at the time of his death, and there was a period of time where he smoked two to three packs a day and that long-term cigarette use is a substantial risk factor for the development of coronary artery disease. He also conceded that Decedent was at the lower end of the obese definition and obesity is a stressor for the heart. Decedent also had a family history of cardiac issues as his father had coronary artery disease at the age of 59.   The WCJ issued a decision and order granting the fatal claim petition. The Board affirmed.

Holding:

The expert based his testimony upon uncontroverted facts that Decedent was working in 90-degree weather changing a tractor trailer tire alongside a road when he reported feeling short of breath and subsequently collapsed in his work vehicle.  While the expert admitted that he did not know specifically how far into the tire change Decedent got before he collapsed, this was not relevant and did not render his opinion equivocal. The courts have repeatedly rejected the argument in cardiac arrest cases that a claimant needs to prove exactly what the decedent was doing prior to the event.  It was undisputed that Decedent had a very physical job and that his daily job duties involved strenuous physical activity. It was further undisputed that Decedent was responding to a roadside service call for a flat tire on a tractor trailer at the time of his death, and that this type of call was within his usual job duties.  Evidence of how much and what type of activity Decedent was performing that day is not a prerequisite to compensation.

Affirmed.

APPEALS – TIMELINESS

Wesley Wheatley v. Pyramid Hotel Group (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 11, 2024

Issue:

Whether the Board erred by denying his appeal as untimely because he appealed to the Commonwealth Court on September 29, 2021, reasonably believing that since the issues on remand had been resolved, and the parties had previously timely appealed to the Board, finality had been achieved?

Background:

Claimant filed a Claim Petition alleging that he sustained a work-related aggravation of preexisting allergic and asthmatic pathology, respiratory system injuries, and endocrine system acquired diabetes on October 8, 2018. On May 13, 2020, the WCJ granted the Claim Petition. Claimant and Employer appealed from the WCJ’s decision to the Board.  On March 25, 2021, the Board affirmed the WCJ ‘s decision in part, reversed it in part, and remanded the matter.  On August 31, 2021, the WCJ issued an amended decision and order simply granting the Claim Petition in accordance with the Stipulation.  Neither party appealed from the August 2021 Order.   On September 29, 2021, Claimant appealed from the Board’s March 25, 2021 order to the Commonwealth Court.  The Court quashed Claimant’s appeal.

Holding:

Following a Board remand to the WCJ, any aggrieved party must then file an appeal with the Board or ask the Board to certify its original determination as final for appeal to the Commonwealth Court. A Board order remanding a case to the WCJ for further action is interlocutory and cannot be appealed until the WCJ has issued the subsequent order.  After that, the Board, not the Court, must review it before this Court can undertake its appellate review.  Claimant did not appeal to the Board within 20 days of receiving the WCJ ‘s decision on remand.  Section 423(a) of the Act authorizes the Board to extend the time for taking an appeal upon cause shown.  Limited circumstances exist in which an untimely appeal may be considered.  Allowable exceptions include cases involving fraud, a breakdown in the administrative process, or when there is a non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal.  Claimant did not raise to the Board or this Court any non-negligent circumstances or fraud or its equivalent that may have allowed his appeals to proceed nunc pro tunc. Accordingly, neither equity nor the fact that Employer did not challenge Claimant’s Petition is dispositive here.  The Board properly denied Claimant’s Petition as untimely filed.

Affirmed.

JUDICIAL DISCRETION

James Wygant v. Kebert Construction (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 29, 2024

Issue:

Whether the Judge’s decision granting the petition was in error?

Background:

Claimant sustained a work injury on December 14, 2014, while he was employed by Employer as a mechanic. The injury was recognized as a low back strain, and Claimant received weekly benefits based on an average weekly wage of $694.47, resulting in a weekly compensation rate of $466.00, for total disability. Employer filed the Modification Petition, based on a labor market survey. Claimant then filed review petitions, seeking to expand the description of the injury and a Penalty Petition asserting that Employer refused to approve and pay for a spinal cord stimulator.  The WCJ partially granted Claimant’s Review Petitions, granted Employer’s Modification Petition, and denied Claimant’s Penalty Petition. Claimant and Employer appealed to the Board, which affirmed the WCJ’s decision.  Claimant then petitioned the Court for review.

Holding:

A WCJ may modify a claimant’s benefits when a claimant’s disability has ended or decreased pursuant to Section 413(a) of the Act.  As to the Modification Petition, Claimant’s argument that the opinions of Employer’s experts were equivocal or incompetent because they failed to account for Claimant’s RSD/CRPS when they approved him for light-duty work, was misplaced. The expansion of Claimant’s work injury became effective as of the date the WCJ granted Claimant’s Review Petitions but is not applicable to earlier dates. Thus, although Claimant argued that his job limitations in 2017 should have accounted for his additional injuries, the WCJ disagreed, and his findings were supported by substantial evidence in the record. Claimant’s argument on the Penalty Petition failed for a similar reason. When Employer denied payment for the spinal cord stimulator, the relevant additional diagnoses were not part of the injury but became part of Claimant’s recognized injury only when the WCJ granted Claimant’s Review Petitions. Employer was only obligated to pay for the spinal cord stimulator once the WCJ determined that the work injury included those additional injuries. The decision was not arbitrary or capricious, or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.  Further, it was based upon substantial evidence.

Affirmed.

Chester County Hospital and BASIS, Inc. v. Eileen Bangert (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 29, 2024

Issues:

Whether the WCJ and the Board erred in finding that Claimant met her burden of proof under the claim petition?

Background:

Claimant worked as a registered nurse for Employer when she injured her lower back. Employer sent Claimant for physical therapy and issued a notice of compensation denial.  Claimant then filed a claim petition alleging that she sustained an aggravation to her prior work-related back injury. Claimant also filed a penalty petition.  Claimant stated that she worked for Employer in a light-duty position in the hospital nursery because of an earlier work injury to her back. That injury occurred in 1994, and after physical therapy, injections, and medication, she underwent back surgery in 1995. Although Claimant returned to work in December 1997, she never fully recovered from this injury.  The WCJ granted Claimant’s claim petition and denied her penalty petition. The WCJ found that Claimant met her burden of proving that in 2021 she sustained a work injury in the nature of an exacerbation of post-laminectomy syndrome, exacerbation of lumbar radiculopathy, and exacerbation of lower back pain. Employer appealed to the Board and affirmed.

Holding:

For a claimant’s medical evidence to be competent, it cannot be equivocal. Viewing claimant’s expert’s testimony in its entirety, he offered an unequivocal opinion that Claimant’s 2021 work injury consisted of an exacerbation of post-laminectomy syndrome, exacerbation of lumbar radiculopathy, and exacerbation of lower back pain. He fully explained how he arrived at those medical diagnoses, which was corroborated by Claimant’s testimony, medical records, and his own clinical observations. Further, he fully addressed the Claimant’s preexisting chronic back pain and the reason why he determined Claimant suffered a work injury in 2021.  The WCJ’s credibility determinations are binding on appeal.  This Court will not disturb a WCJ’s findings if there is substantial evidence in the record to support the findings. It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ.  The WCJ did not overlook evidence of Claimant’s preexisting conditions. Rather, the WCJ considered the testimony of both medical experts on Claimant’s work injury, medical history, and medical records, and he resolved the conflict between them in favor of Claimant.

Affirmed.

EMPLOYMENT RELATIONSHIP – INDEPENDENT CONTRACTOR

Wilfredo Ayala v. Fundamental Labor Strategies, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion.
Decided: January 2, 2024

Issue:

Whether the Board erred in concluding claimant was an independent contractor at the time of his injury?

Background:

Claimant, a commercial truck driver, began working as a delivery driver for FLS in March 2019. Claimant filed a claim petition alleging he sustained a lumbar disc injury while unloading a window during the course and scope of his employment with FLS.  Based on the testimony presented, the WCJ found Claimant did not establish an employment relationship with FLS and dismissed Claimant’s claim petitions and petition for penalties. The Board affirmed the WCJ’s Decision.

Holding:

For a claimant to receive WC benefits, the claimant must prove an employer-employee relationship exists because an independent contractor is not entitled to benefits.  While no factor is dispositive, control over the work and the manner it is performed are primary factors in determining employment status. Where an alleged employer has the right to select the employee, the right and power to discharge the employee, the power to direct the manner of performance, and the power to control the employee, there is sufficient control to establish an employer-employee relationship. Additionally, payment of wages and payroll deductions are a significant consideration, as is a tax filing noting self-employment. While requests about the manner of work may have come from the clients, FLS did not dictate to Claimant which assignments to accept, how to complete the assignments, what routes to travel, and what times to drive each day or for how long. FLS did not provide a uniform or the vehicles for Claimant to drive, nor did FLS train Claimant. While none of these facts were individually dispositive, taken as a whole, these findings reflect Claimant controlled the time and manner of his work, primarily by his ability to accept or reject assignments.  The Court may not reweigh the evidence or second-guess the WCJ’s credibility determinations.  Further, substantial evidence in the record supports the WCJ’s findings of fact and conclusions of law.  Therefore, the Board did not err in affirming the WCJ’s Decision that Claimant was an independent contractor. As an independent contractor, Claimant was not entitled to WC benefits.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

German Sanchez v. Petrolongo Contractors, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: January 10, 2024

Issue:

Whether the IRE was premature because 104 weeks had not passed since Act 111’s enactment when the IRE was scheduled?

Backgrounds:

The facts were not in dispute. In 2004 Claimant suffered a work injury after being pinned against a wall by a backhoe. Claimant suffered a lumber sprain and strain. Claimant was ordered to attend an IRE, which was originally scheduled for January 15, 2019, and which claimant did not attend until September 5, 2019. Based on his evaluation, Claimant had a 33% impairment rating.  At the modification Petition hearing, Claimant argued the IRE was premature.  The WCJ modified Claimant’s benefits to TPD as of January 15, 2019, the date the IRE was originally scheduled.  Claimant appealed to the Board arguing that an IRE could not be performed until 104 weeks after Act 111 became effective. The Board affirmed.

Holding:

Act 111 plainly provides for credit of weeks of temporary total and partial disability benefits previously paid and that the General Assembly explicitly provided the credit provisions were to be given retroactive effect. The plain language of Section 3 of Act 111 explicitly gives employers credit for previous weeks of disability benefits paid.  The IRE was not premature.

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 January 31, 2024, 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

01/01/2024 – 01/31/2024

DISABILITY BENEFITS

 

Hughes v. Port Authority of New York and New Jersey
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-1188-22; 2024 WL 336544
Decided: 01/30/2024

Background:

Hughes used to work as a police officer for Port Authority of New York and New Jersey. He suffered a cardiac injury while on the job and filed a claim, asserting he was totally and permanently disabled. A WCJ determined Hughes was thirty three and one third percent partially disabled. In a different trial, a WCJ determined that Hughes’ disability had increased to forty five percent of permanent partial total. The decision was based on testimony presented at trial as well as medical records.

 

Holding:

On Appeal, Hughes argued that he proved that he had become one hundred percent disabled. He additionally argued for the first time that the WCJ should have required Port Authority to pay a Medicare lien.

The court concluded that the WCJ’s decision is supported by credible evidence in the record. The decision was based on his conclusion that Hughes’s disability had not changed drastically over time as well as his assessment of medical evidence. Hughes argued that the WCJ should have given more weight to the opinion of his medical expert that he was one hundred percent disabled. The court disagreed with this argument and found that the WCJ fully articulated a well-reasoned conclusion for rejecting the expert’s opinion.

The court also noted that there was no significance in finding that Hughes was entitled to Social Security disability benefits as the Social Security Administration has different standards and statutes than the Workers’ Compensation Court.

The court declined to consider the Medicare lien issue as Hughes did not present any evidence of this during the trial.

Affirmed.

 

NEW JERSEY LEGISLATIVE UPDATE

Assembly Bill 5909/ Senate Bill 4267

This bill revises workers’ compensation coverage to include coverage for injuries to volunteer as well as part-time public safety and law enforcement workers when the injury occurs in response to an emergency.

Last Action: Passed Senate, January 8, 2024

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 from Senate Committee with Amendments, 2nd Reading, December 14, 2023