PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
02/1/2024 – 02/29/2024
IMPAIRMANT RATING EVALUATIONS
Steven Conrad v. Department of Transportation (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: February 26, 2024
Issue:
Whether Act 111 is unconstitutional and cannot be applied to injuries before that date?
Background:
In 2005, Employer issued a Notice of Compensation Payable (NCP) accepting liability for a work-related injury sustained by Claimant in the nature of a lower back strain; thereafter, Claimant began receiving temporary total disability benefits. On September 20, 2011, Claimant underwent an impairment rating evaluation (IRE) which resulted in an impairment rating of less than 50%. Based on the results of the IRE, the WCJ modified to partial effective September 20, 2011. On November 1, 2016, before 500 weeks of payment of partial disability benefits expired, Claimant filed a Reinstatement Petition alleging that his impairment rating was invalid and unconstitutional. A WCJ reinstated Claimant’s total disability benefits as of September 20, 2011. The Board amended the effective date to November 1, 2016, the date Claimant filed his Reinstatement Petition. On August 11, 2020, Claimant underwent a new IRE pursuant to Act 111, which resulted in an impairment rating of 11%. Employer filed the instant Modification Petition. The WCJ granted Employer’s Modification Petition under Act 111, to partial effective August 11, 2020. The WCJ also concluded that Employer was entitled to a credit for the weeks of partial disability paid pursuant to the first IRE between September 20, 2011, and November 1, 2016. The Board affirmed.
Holding:
This Court noted that it has addressed various constitutional challenges to Act 111. Act 111 provided employers with a mechanism to modify a claimant’s disability status from total to partial. Claimant’s constitutional argument was without supporting references to legal authority or facts that Act 111 unconstitutionally violates his right to equal protection. Claimant was treated no differently than anyone else who is eligible for workers’ compensation benefits; therefore, his equal protection rights could not have been violated. Claimant underwent an IRE which resulted in an impairment rating of 11%, and his disability status was modified to partial disability. Employer then properly received credit for the weeks of partial disability paid between September 20, 2011 and November 1, 2016, pursuant to the plain language of Act 111.
Affirmed.
COURSE AND SCOPE OF EMPLOYMENT – TRAVELING EMPLOYEE
Jorge Martinez v. Lewis Tree Service (WCAB)
Commonwealth Court of Pennsylvania – Published Order
Decided: February 8, 2024
Issue:
Whether Claimant was a traveling employee, entitled to a presumption that he was in the course and scope of employment while driving home from work?
Background:
Claimant worked as a crew leader in Employer’s tree-trimming business. While driving home in his personal vehicle at the end of his workday, Claimant was injured in a motor vehicle accident. Claimant filed a claim petition which asserted that he was a traveling employee with no fixed place of business. The WCJ denied the claim petition, concluding that Claimant was not acting within the course and scope of his employment at the time of his injury because, generally, commuting to or from work does not constitute employment and Claimant’s evidence did not establish an exception to this general rule. The Board affirmed.
Holding:
The court concluded that Claimant’s evidence did not establish that he was a traveling employee without a fixed place of employment. Accordingly, he was not acting in the course and scope of his employment when he was injured in a motor vehicle accident on his way home from work. Generally, injuries sustained during an employee’s commute are not compensable. There are exceptions to this rule and an injury sustained during an employee’s commute to or from work can be compensable where any of the following circumstances apply: (1) the employment contract included transportation to and from work; (2) the employee has no fixed place of work; (3) the employee is on special assignment for the employer; or (4) special circumstances are such that the employee was furthering the business of the employer. Claimant is not eligible for benefits under any exception to the coming and going rule. The determination of whether a claimant is a traveling employee turns on whether the claimant’s job duties involve travel, whether the claimant works on the employer’s premises, or whether the claimant has no fixed place of work. Claimant reported to the yard, where the truck and equipment needed to trim trees were stored. He then traveled to the location of the tree trimming job. Claimant drove his personal vehicle, not Employer’s vehicle, to and from his home, and Claimant’s workday started at Employer’s yard, not at his home. Claimant was not reimbursed for travel expenses and did not store equipment at his home. Claimant had a fixed place of work, albeit one of short duration. A change of work location during the day or from day to day does not make a claimant a traveling employee. Rather, the traveling employee is one whose travel in his own vehicle is essential to furtherance of the employer’s business along with his transportation of the supplies which were stored at his home for his use in his work. Claimant was not furthering the business of Employer while commuting home in his own vehicle from the yard where he began his workday.
Affirmed.
JUDICIAL DISCRETION
Pennsylvania Liquor Control Board v. Dominick Demace, Jr. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 26, 2024
Issue:
Whether the WCAB erred in affirming the decision of the WCJ denying Employer’s termination petition and expanding the nature of Claimant’s work injury?
Background:
Claimant was injured in an auto accident in the course of his employment as a Maintenance Repairman for Employer. Employer accepted Claimant’s injury as strains or tears to his neck and lower back caused by a motor vehicle accident. In 2021 Employer filed the petition to terminate benefits as of the date of an independent medical examination (IME) of Claimant. The WCJ amended the work injury to include the additional diagnosis and denied Employer’s termination petition. The Board affirmed.
Holding:
Employer argues that Claimant’s Expert’s medical testimony was incompetent because he did not review Claimant’s full medical history, including documentation from his previous primary care provider, but rather reviewed summaries prepared by a member of his office staff. However, the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight. The WCJ, therefore, is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses. Unless made arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld on appeal. It is of no moment that the record contained evidence to support findings other than those made by the WCJ, as the analysis is only whether there is evidence to support the findings actually made. It was within the ultimate purview of the WCJ to resolve conflicting evidence in making his findings and Claimant as the prevailing party is entitled to every reasonably deducible inference therefrom. There was substantial, competent evidence to support the findings made by the WCJ.
Affirmed
JUDICIAL DISCRETION AND THE STANDARD FOR A REHEARING
Augustine Sesay v. SEPTA (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 31, 2024
Issues:
Whether the Board erred in affirming the WCJ’s finding that Claimant is capable of returning to his pre-injury position with Employer? Whether Attorney incompetence compelled a rehearing?
Background:
Claimant sustained a work injury to his eye during the course and scope of his employment with Employer. Employer issued a Notice of Temporary Compensation Payable (NTCP), agreeing to pay medical and indemnity benefits for an injury described as a laceration of Claimant’s eye/face. The NTCP converted to a Notice of Compensation Payable (NCP). Later Employer filed the Suspension Petition based on a specific job offer made by Employer. Claimant then filed a Review Petition, averring an incorrect NCP work-injury description. The WCJ found that Claimant’s work injury description should be expanded to include traumatic hyphemia and macular edema, but not vitreous degeneration and/or specific loss of use of the right eye as a result of the work incident. The WCJ concluded that Claimant was physically able to perform the position offered by Employer. The Board affirmed. Claimant appealed, pro se.
Holding:
The Court concluded that Claimant’s issues on appeal were either waived or without merit and the WCJ did not err or abuse her discretion in issuing her Decision and Order and the Court affirmed the Board. There is no dispute that Employer offered Claimant his pre-injury position. The position was within Claimant’s medical capabilities. Because PTSD was not added to Claimant’s injury description, it could not serve as a valid ground to challenge the WCJ’s finding that Claimant can return to work. For attorney incompetence to amount to cause shown for a rehearing, 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. There was no evidence in the record that would establish either objective incompetence or manifest injustice. The record was insufficient to establish that the attorney’s decision to not present certain evidence was born of incompetence and not reasonable legal strategy. Further, the admission of the evidence would not necessarily have changed the WCJ’s decision. Although this issue was waived, the Court nevertheless would have affirmed the Board if it properly was before them.
Affirmed.
COURSE AND SCOPE OF EMPLOYMENT – PERSONAL ANIMUS
Andrew Ferreria v. West German Motor Import
Superior Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 15, 2024
Issue:
Whether the trial court abused its discretion or committed an error of law when it applied workers’ compensation immunity?
Background:
Claimant was employed by Employer as an automobile detailer. Co-defendants, who were also employed by Employer, physically attacked Claimant. As a result, Claimant sustained bodily injuries. Claimant filed a complaint against Employer for negligence. Specifically, Claimant alleged that Employer was negligent in allowing the co-defendants to work in the vicinity of Claimant, and that Employer was negligent by failing to timely intervene while the incident was in progress. Employer filed a motion for judgment on the pleadings arguing that Claimant’s claimed injury and negligence against it was barred under the exclusive remedy provision of the WCA. Claimant argued that the motion should be denied because there is an issue of material fact that needs to be determined by the court. Claimant argued that this case falls under the “personal animus” exception under the WCA. For the exception to apply, the assailant must have intended to inflict the injury for personal reasons unrelated to his employment. Claimant argued that the motivation of the two co-defendants was a question of fact that had to be determined by the trier of fact. None of the allegations alleged established that the attack was for personal reasons. The Motion for Judgment on the Pleadings was granted. Claimant appealed.
Holding:
Where an injury is covered by the WCA, workers’ compensation is the employee’s sole remedy against employer and the employee may not bring a tort action against the employer. If the employee was acting in the course of employment when the injury occurred, the injury is presumed to be work-related, and the burden is on the party asserting the personal animus/third party attack exception to prove that the exception applies, and the injury is therefore not covered by the WCA. Claimant asserted that while he was working for Employer, co-workers physically attacked him, and the attack caused him to sustain physical injuries, emotional injuries, and financial damages. Claimant did not plead any facts asserting that the attack was motivated by personal animosity that was unrelated to his employment. Claimant failed to satisfy the personal animus exception to the exclusivity of the WCA. Claimant’s appeal was denied.
Affirmed.
SPECIFIC LOSS
ALLOWANCE OF APPEAL TO THE PA SUPREME COURT – GRANTED
Jennifer Jackiw v. Soft Pretzel Franchise (WCAB)
Supreme Court of Pennsylvania
February 14, 2024
The PA Supreme Court agreed to hear a case that was reported by the Commonwealth Court on August 10, 2023, wherein the Commonwealth Court held that the Board did not err in affirming the WCJ’s application of precedent and in limiting her compensation rate. The Commonwealth Court dissent suggested that precedent should be set aside.
The PA Supreme Court held:
AND NOW, this 14th day of February 2024, the Petition for Allowance of Appeal is GRANTED. The issue, rephrased for clarity, is:
Did the Commonwealth Court err in applying Section 306(a) of the Workers’ Compensation Act, 77 P.S. § 511, rather than Section 306(c), 77 P.S. § 513, to determine the benefit rate for the specific loss of a body part, based upon its decision in Walton v. Cooper Hosiery Co., 48 Pa. Cmwlth. 284, 409 A.2d 518 (1980)?
PENNSYLVANIA LEGISLATIVE REVIEW
As of February 29, 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
02/01/2024 – 02/29/2024
BURDENS IN ESTABLISHING COMPENSABILITY
Driscoll v. Costco
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
A-2789-21; 2024 WL 676498
Decided: 02/20/2024
Background:
Laura Driscoll injured her back while lifting a case of water bottles during the course of her employment with Costco. She had no prior history of back injuries. Driscoll treated and was returned to work with a twenty-pound lifting restriction by an orthopedic spine specialist.
Upon Driscoll’s return to work, she was assigned to work inventory which she claimed involved repetitive lifting and bending. Driscoll claimed this aggravated her back and she left work early. Driscoll then filed her first Claim Petition asserting her initial back injury where she lifted water bottles. Driscoll filed a second claim alleging a new injury to her back and an aggravation of her initial back injury.
Driscoll continued to receive authorized treatment. She then moved for Medical and Temporary Benefits and began receiving unauthorized pain management treatment, which included steroid injections. Driscoll’s authorized treatment providers determined she had reached maximum medical improvement and she was cleared to work full duty as nothing else could be done from a pain management standpoint.
A WCJ found that Driscoll’s claim for medical benefits was limited to the time period she was treated by the physician who performed steroid injections. The Judge stated that there was no testimony or medical records for treatment after this time period and it was Driscoll’s burden to present medical evidence in support of her claim. The Judge did find that Driscoll did sustain a second injury in the course of her employment, but that further treatment would be of little benefit.
Holding:
On Appeal, Driscoll challenged the sufficiency of the judge of compensation’s credibility and factual findings.
The Court stated that the petitioner bears the burden of providing medical evidence establishing the compensability of their claim. The Court also recognized that there may be a point where the pain or disability experienced by the worker does not warrant active treatment.
Here, the WCJ’s findings are supported by sufficient credible evidence on the record. Additionally, the Judge fully explained his reasons for denying the discovery motions prior to the testimonial hearing and therefore the Judge’s decision should not be disturbed.
Affirmed.
EMPLOYER’S BEWARE
Please be aware that a Federal Court Judge in New Jersey has awarded sanctions to an Employer for failure to properly preserve video of an incident concerning a slip and fall. The Employer did preserve the video, however, the Court found that the Employer’s failure to preserve only 5 minutes prior to the time of the incident was improper and awarded sanctions against the Employer for its oversight. The Court reasoned that in order to assess the situation more than 5 minutes before the incident needed to be viewed to know how long the spill was present, how employees addressed it, etc. The Court suggests that at least 2 hours prior to the incident should have been preserved. As such, we would ask that our clients please be aware of this ruling and make sure that not only are videos preserved, but an appropriate amount of time both prior to and after the incident be preserved.
NEW JERSEY LEGISLATIVE UPDATE
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