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PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
4/1/2024 – 4/30/2024

PENALTY PETITION

St. Luke’s Physician Group v. Sheila Kuzo (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 29, 2024

Issues:

Whether the WCJ erred by finding that claimant’s expert’s testimony regarding medical issues was legally competent?  Whether the WCJ’s decision expanded the adjudicated work injury in violation of res judicata and collateral estoppel principles?

Background:

Claimant sustained a work-related injury in 1996, while lifting a patient into bed in the course and scope of her employment. A notice of compensation payable (NCP) was issued by Employer acknowledging a herniated disc at C6-7. The NCP was amended in 2003 to include swallowing/esophagus problems as well as a diagnosis of major depression.  The NCP was amended again in 2008 to include a diagnosis of sleep disorder. In 2021, Claimant filed a Penalty Petition alleging that Employer failed to make timely payment of Claimant’s prescriptions for four medications.  The WCJ concluded that Claimant sustained her burden of proving that Employer violated the Act by failing to pay for the medications prescribed by the provider. The Board affirmed the WCJ’s decision.

Holding:

An employer that fails to pay for medical treatment based solely on causation is subject to penalties at the discretion of the WCJ, if the WCJ finds the bills to be causally related to the work injury. Employer did not file a review petition to dispute causality or seek a utilization review. Instead, it took the risk that it would be subject to the Penalty Petition.  Capricious disregard occurs only when the factfinder deliberately ignores relevant, competent evidence.  However, the WCJ’s assessment of witness credibility is not subject to review on appeal. A capricious disregard of the evidence in a workers’ compensation case is a deliberate and baseless disregard of apparently trustworthy evidence.  Here, the WCJ carefully reviewed the testimony and determined that Claimant’s testimony was generally credible regarding her current treatment, side effects, and treatment. The WCJ carefully reviewed and weighed the testimony and evidence presented and determined that his testimony was competent and credible on the issues raised.  Therefore, the court was bound by the WCJ’s credibility determinations.  Further, whether medical opinion evidence is competent or equivocal is a question of law based upon a review of the opinion testimony as a whole.  Medical testimony is not evaluated on the basis of a few words taken out of context. Viewing the medical testimony as a whole, it was not incompetent or equivocal.  Finally, Claimant’s expert did not impermissibly expand the description of Claimant’s accepted work injury.  Here, Claimant was not petitioning for an expansion of the work injury, nor did the holdings by the WCJ and Board describe any new medical conditions to be included in the NCP. The adjudicated work injury was amended without dispute in prior litigation to include major depression and a sleep disorder in connection with the work injury.  Because claimant’s expert did not seek to expand Claimant’s accepted work injury, the findings and conclusions based on his testimony do not constitute an attempt to relitigate the scope of Claimant’s work injury.

Affirmed.

 

Medical Revenue Associates v. Sue Ellen Kanefsky (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 3, 2024

Issue:

Whether the Employer can apply a subrogation credit against an ongoing benefits obligation, so as to avoid penalties?

Background:

Claimant sustained work-related injuries. Claimant settled a third-party lawsuit relating to these injuries for $650,000.00.  Prior to executing the third-party settlement agreement, Claimant filed a claim petition seeking workers’ compensation (WC) benefits. The WCJ found the Claimant was entitled to total disability benefits.  Employer did not pay WC benefits pursuant to this order, and Claimant filed for Penalties.  Thereafter, Employer filed suspension, modification, and review petitions (Review Petition), “requesting subrogation and a credit for a third-party recovery of $650,000.00.  The WCJ ordered Employer to comply with his earlier Order.

Holding:

In now asking this Court to apply its subrogation credit toward all of Claimant’s past due indemnity benefits, the court viewed the Employer as asking the court to circumvent its burden of asserting its subrogation right. The court refused. Employer ignored multiple judicial orders and determinations in this case and exercised ‘self-help’ and delayed the full payment of compensation to Claimant, all in the interest of securing its subrogation lien without a Court Order or fully executed third-party settlement agreement.  Here, the Board affirmed the grant of Claimant’s Penalty Petitions because competent evidence established the requisite violation of the Act. Employer’s bald assertion that Claimant has failed to carry her burden in proving that a violation of the Act has occurred must fail. The argument that an overpayment has occurred so as to justify a failure to pay, fails because no overpayment occurred.  In any event, the Act does not permit an employer to engage in self-help by unilaterally withholding payment in accord with what it believes to be the proper calculation of indemnity benefits.

Affirmed.

MEDICAL TREATMENT – CAUSALLY RELATED

Norman Rickley v. Dandy Service Corp. (WCAB)
Commonwealth Court of Pennsylvania –
Decided: April 4, 2024

Issues:

Whether the Claimant had the burden to prove that his ongoing treatment was related to the 2006 work injury, and failed to meet that burden?

Background:

On March 29, 2006, Claimant, while employed by Dandy, sustained a low-back injury. On June 15, 2010, the WCJ approved a C&R agreement settling indemnity benefits but leaving Dandy responsible for Claimant’s ongoing medical expenses. That agreement provided that Claimant’s injury was formally recognized as a low back strain via Notice of Compensation Payable. The parties specifically agreed that the Compromise and Release Agreement resolved any and all diagnoses, conditions and/or ailments related to the Claimant’s March 29, 2006 injury.  On October 14, 2020, Claimant filed a review medical petition against Dandy for refusing to pay for medical bills related to the 2006 work injury.  The WCJ denied Claimant’s review medical petition.  The WCJ credited the testimony that Claimant’s medical treatment beginning in 2020 was unrelated to the 2006 work injury. Rather, Claimant’s cervical pain and incontinence stemmed from severe cervical degenerative disc disease. The Board affirmed the WCJ’s decision.

Holding:

If the new symptoms and the compensable injury are obviously related, and benefits have not been terminated, then the claimant will benefit from the presumption that the new symptoms are related to the compensable injury and, thus, his employment, and it will be the burden of the employer to prove that the new symptoms complained of are unrelated to the compensable injury. If, however, the connection is not obvious, then the burden will be on the claimant to establish the connection through unequivocal medical testimony.  The Board erred in holding that Claimant was required to prove that his ongoing low-back pain, leg tingling, and leg numbness were related to the 2006 work injury. Because the nexus between his low-back pain, leg tingling, and leg numbness and his 2006 work injury was obvious, the burden was on Dandy to prove that these symptoms were unrelated to the compensable injury. However, the Board did not err in holding that Claimant carried the burden to prove that his treatment beginning in May of 2020 for such symptoms of incontinence and cervical problems was related to the 2006 work injury. The causal connection is not obvious for those injuries.  While Claimant has experienced additional symptoms in 2020, which the WCJ found unrelated to the 2006 work injury, Claimant’s chronic low-back pain and leg numbness and tingling resulting from the post-laminectomy syndrome continues to be his “baseline.”  There was no evidence in the record that Claimant no longer requires treatment for the post-laminectomy syndrome.  The court vacated the Board’s adjudication insofar as it affirmed the WCJ’s denial of the review medical petition and remanded the matter to the Board, with direction that the Board remand to the WCJ, to make findings on what medical bills as of May 2020 and thereafter were related to pain management for Claimant’s low-back pain, leg tingling, and leg numbness.

Vacated and Remanded.

 

MEDICAL TREATMENT – REIMBURSEMENT

Catherine D. Iskra v. Aussie Pet Mobile Bux-Mont (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 25, 2024

Issue:

Whether the Employer must pay for or reimburse the Claimant for her medical marijuana costs?

Background:

On January 3, 2008, Claimant suffered a work injury which included a contusion to the left hand that caused complex regional pain syndrome.  Claimant filed the Review Medical Petition.  The WCJ granted the Review Medical Petition, directing Employer to pay for Claimant’s ketamine treatment but that employer did not have to pay or reimburse Claimant for her medical marijuana costs.

Holding:

Employer is required to reimburse Claimant for her medical marijuana costs because the medical need for the treatment has been established and she has been medically certified to use medical marijuana. Reimbursing the claimant for her out-of-pocket expenses for her lawful use of medical marijuana as a reasonable and necessary treatment for her work injury would not require the employer to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Thus, the employer would not violate the Federal Drug Act, or be at risk of facing federal prosecution by doing so. Employer is not prescribing marijuana, but rather reimbursing the claimant for her lawful use thereof.  The Board erred by affirming the WCJ’s ruling that paying or reimbursing Claimant for her medical marijuana costs would subject an employer/WC carrier to prosecution under federal law.  The portion of the Board’s order affirming the WCJ’s decision that granted Claimant’s Reinstatement Petition as of June 20, 2019, is vacated, and the matter was remanded to the Board. The portion of the Board’s order affirming the WCJ’s decision that denied Claimant’s Review Medical Petition concerning her use of medical marijuana is reversed.

Reversed.

SUSPENSION – VOLUNTERY REMOVAL

Christopher Alpini v. Tinicum Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 16, 2024

Issue:

Whether the Board and the WCJ erred in suspending claimant’s benefits based upon voluntary removal from the workforce?

Background:

Claimant was injured in his job as a police officer for Employer in 2011.  Until his retirement from Employer on January 1, 2018, Claimant received his full salary under the Heart and Lung Act.  As of that date, Claimant began receiving a service-connected disability pension. Additionally, Claimant recovered $750,000.00 in a third-party action in connection with his injury and he does not pay for any related treatment. On October 23, 2020, Employer filed a suspension petition, alleging that Claimant had voluntarily withdrawn from the workforce. The WCJ granted Employer’s suspension petition, after finding: (1) Claimant was separated from his time of injury employer; (2) Claimant admitted he was not totally disabled, such that he was capable of work outside of his pre-injury employment; and (3) Claimant made no good faith attempt to return to work.   The Board affirmed the WCJ’s decision.  The Board agreed with the WCJ that Claimant failed to carry his burden of proving that he was actively seeking employment within his work restrictions.

Holding:

Where an employer is seeking a suspension on the basis of a voluntary withdrawal the employer has the burden of proving that the claimant has voluntarily left the workforce. There is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension, much less a disability pension; rather, the worker’s acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired.  If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits.  An employer may demonstrate that the claimant has voluntarily withdrawn from the labor market by presenting evidence of the claimant’s receipt of a pension, the claimant’s own statements relating to voluntary withdrawal, and the claimant’s efforts or non-efforts to seek employment.  The mere possibility that a retired worker may, at some future time, seek employment does not transform a voluntary retirement from the labor market into a continuing compensable disability.  The WCJ found that Claimant had admitted he was not totally disabled and capable of remote work.  Claimant’s testimony indicates an acknowledgement that he is capable of joining the labor market in some capacity and demonstrates an openness to rejoining the workforce. Claimant has acknowledged his ability to participate in the labor market but has neglected to seek employment within his restrictions.  Claimant failed to provide evidence of any good faith attempt to obtain employment commensurate with his restrictions.

Affirmed.

ATTORNEY FEES – REASONABLE CONTEST

Glenny Torres v. Amazon.Com Services (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: April 9, 2024

Issue:

Whether the Board erred in failing to apply the Lorino case law principles to the fee request?

Background:

Claimant sustained a work-related injury to her lower back. Employer acknowledged Claimant’s injury, reduced her work duties, and supplied her with a list of suggested physicians. Employer filed a medical-only Notice of Temporary Compensation Payable and later, Employer issued a Notice Stopping Temporary Compensation and a Notice of Workers’ Compensation Denial.  In response, Claimant’s attorney filed claim petitions which alleged, among other things, that she was unable to work after November 30, 2020, on account of her injury.  The WCJ concluded Claimant suffered a work-related injury on September 17, 2020 and that she was fully recovered as of June 24, 2021.  The WCJ also found that Employer did not present a reasonable contest.  The Board modified the award of Section 440 attorney’s fees, eliminating certain fees, to reflect a reasonable contest after the IME.  Claimant appealed the Board’s Order.

Holding:

Under Section 440, when a contested case is resolved in favor of an employee, a reasonable sum for attorney’s fees shall be awarded to the claimant. Such an award is mandatory. Where, however, the employer has established a reasonable basis for the contest, the WCJ is permitted, but not required, to exclude an award of attorney’s fees.  A WCJ may still deny an award of attorney’s fees when the employer has established a reasonable basis for its contest as the language of Section 440 affords the WCJ discretion to refuse an award of attorney’s fees in such circumstances.  The court reversed the Board’s Order to the extent it automatically foreclosed the imposition of attorney’s fees against Employer after its contest became reasonable, disregarding the plain language of Section 440(a) of the Act and the Pennsylvania Supreme Court’s decision in Lorino. The court remanded the matter to the Board to vacate the WCJ’s Section 440 award with the instruction to further remand to the WCJ to issue a new award of attorney’s fees in accordance with Section 440(b).

REVERSED, in part, and REMANDED.

 

CLAIM PETITION – COURSE AND SCOPE

Pennsylvania Liquor Control Board v. Amato Berardi (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 10, 2024

Issue:

Whether the Board erred in affirming the WCJ’s decision granting Claimant’s claim petition?

Background:

Claimant worked as a clerk in a state liquor store.  While on his lunch break, Claimant fell while walking back to the store with his take-out meal.  Claimant filed a claim petition.  Employer denied all allegations, asserting that the incident happened in a parking lot which was not owned, operated or controlled by Employer. The WCJ found that Claimant sustained a meniscal tear and chondromalacia of the condyle of the right knee that was either caused or aggravated by the fall. The WCJ found that Claimant’s injury occurred in the course and scope of his employment. Although he was on his lunch break, Claimant was walking in an area integral to Employer’s store when he fell and injured himself. Thus, Claimant proved that his injury occurred in the course of his employment.  On the merits of the WCJ’s decision, the Board affirmed.

Holding:

Claimant’s injury, from which he is not fully recovered, occurred in the course and scope of his employment, and Claimant established a causal connection between his fall and his disability. An employer’s premises under the Act are not limited to the property that the employer owns or controls. Parking lots, public streets, and common areas in multi-unit office buildings, for instance, may be considered part of the employer’s premises if they are integral to the employer’s workplace or constitute a reasonable means of ingress to or egress from the workplace.  Here, Claimant’s fall occurred in the parking lot that serves the shopping center where Employer is located, and it provides the only entrance to the store. Because the parking lot constituted a reasonable means of ingress to the work site, Claimant’s injuries were incurred on Employer’s premises.  Once an employee is on the employer’s premises, actually getting to or leaving the employee’s workstation is a necessary part of employment, which is definitively furthering the employer’s interests. Moreover, any injury sustained by an employee up until the time she leaves the employer’s premises is compensable, provided it is reasonably proximate to her work hours.  Reasonable proximity covers leaving for lunch. Claimant did establish that the injuries he sustained were caused by the condition of the premises. Although the WCJ has exclusive province over questions of credibility and evidentiary weight, the question of the competency of evidence is one of law and fully subject to our review. Claimant’s expert’s opinion that Claimant’s right knee chondromalacia of the femoral and tibial condyle was in part due to the fall and in part possibly preexisting but aggravated by the fall is not equivocal. Either way, Claimant sustained a work injury.

Affirmed.

MODIFICATION PETITION – SUITABLE WORK WITH EMPLOYER

George B. Thomas v. Sysco Foods (WCAB) – (THOMAS I)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 26, 2024

Issues:

Whether the wrong employer was named in the Modification Petition, and the WCJ was without jurisdiction to proceed? Whether the Employer met its burden of demonstrating there were no specific job vacancies within Claimant’s restrictions?

Background:

On July 1, 2016, Claimant suffered an injury to his left leg, for which Employer issued a Notice of Compensation Payable accepting the injury as a left leg contusion.  The parties subsequently stipulated that Claimant’s injury should be expanded to include a lower left leg amputation and an adjustment disorder with mixed anxiety and depressed mood, which a WCJ approved in September 2018. On March 7, 2019, the Modification Petition was filed listing “Sysco Foods” as the defendant/employer. The Modification Petition sought to reduce Claimant’s weekly benefits based on an earning capacity evaluation.  The Board reversed the WCJ’s Decision denying the Modification Petition.

Holding:

There can be no reasonable dispute that the WCJ had subject matter jurisdiction over the Modification Petition. Further, an employer does not have the burden to prove the non-existence of available work at its own facility as a necessary element of the modification petition. Rather, a claimant may present evidence that during the period in which the employer had a duty to offer a specific job, the employer had a specific job vacancy that it intended to fill that the claimant was capable of performing. The burden then shifts to the employer to rebut the claimant’s evidence.  Claimant, here, presented no evidence of a specific job opening with Employer between the filing of the Notice of Ability to Return to Work and Employer’s Modification Petition. Claimant did not even suggest this was the case or testify that he believed this to be so. Absent some evidence that an employer has an open and available position within the claimant’s work restrictions, an employer does not need to prove it does not have such a position available. Claimant here did not cite any evidence he would lose any union benefits or status, and Claimant’s failure to produce or enter any such evidence results in a failure to establish the non-union position [s identified in the labor market survey] as unavailable.  The Board did not err in reversing the Decision of the WCJ.

Affirmed.

 

JUDICIAL DISCRETION – IME REPORT

George B. Thomas v. Sysco Foods (WCAB) – (THOMAS II)
Commonwealth Court of Pennsylvania
Decided: April 26, 2024

Issues:

            Whether the WCJ erred in not excluding an IME report?

Background:

On July 1, 2016, Claimant suffered a work injury, which, by stipulation of the parties, was described as a lower left leg amputation and an adjustment disorder with mixed anxiety and depressed mood. On April 28, 2020, Employer filed the Termination Petition, asserting Claimant fully recovered from any psychological injuries as of February 10, 2020, the date of the most recent IME. Claimant filed an answer denying the same. One basis for Claimant’s objection was the lack of notice to Claimant’s WC counsel of the IME. The WCJ allowed the report.  The Board affirmed.

Holding:

There is no merit to the argument that evidence from Dr. Fenichel’s IME should be excluded from evidence because Claimant’s WC counsel was not given notice of the scheduled IME.  The claimant had no constitutional right to have counsel present during the IME.  Claimant failed to demonstrate actual prejudice or adverse impact.  The WCJ postponed proceedings for several months to allow Claimant’s WC counsel ample time to confer with his client. Claimant’s WC counsel also had the opportunity to participate in Dr. Fenichel’s subsequently scheduled deposition and cross-examine her to challenge Dr. Fenichel’s findings from the IME. In addition, the WCJ provided Claimant time to have Dr. Weiss review Dr. Fenichel’s report and deposition and provide his own report and testimony. Claimant received all of the safeguards under Maranc and did not establish any actual prejudice or adverse impact from the lack of notice to Claimant’s WC counsel, particularly given this was Claimant’s third IME with Dr. Fenichel.  The WCJ committed no error of law or abuse of discretion in allowing the litigation of the Termination Petition to proceed as it did.

Affirmed.

 

MEDICAL MARIJUANA
ALLOWANCE OF APPEAL TO THE PA SUPREME COURT – GRANTED

Mark R. Schmidt v. Schmidt, Kirifides And Rassias (WCAB)
Supreme Court of Pennsylvania – Petition for Allowance of Appeal – GRANTED
Holding:  April 30, 2024

The Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner, rephrased for clarity, are:

(1) Do the terms “medical services” and “medicines and supplies” as used in Section 306(f.1), 77 P.S. § 531, of the Workers’ Compensation Act, include cannabinoid oil (CBD oil), specifically, as well as dietary supplements, generally, and products that may be purchased without a prescription from a healthcare provider?

(2) Do the cost containment regulations of the Workers’ Compensation Act apply to CBD oil?

(3) Does Section 306(f.1) of the Workers’ Compensation Act, 77 P.S. § 531, require employers/insurers to reimburse claimants, directly, for out-of-pocket expenses for “medical services” and “medicines and supplies,” and if so, are claimants obligated to submit supporting documentation, such as medical records or prescriptions, or specified forms, such as HCFA forms, before they may receive such reimbursement?

PENNSYLVANIA LEGISLATIVE REVIEW

As of April 30, 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
04/01/2024 – 04/30/2024

WRONGFUL DEATH CLAIMS

Estate of Papatao v. Palisades Med. Ctr. 
Superior Court of New Jersey, Appellate Division – Unpublished Opinion

  1. A-1740-22; 2024 WL 1756013

Decided: 04/24/2024

Background:

Decedents, husband and wife, passed away from COVID-19. One of the decedents worked in the medical field and was compensated under the Workers’ Compensation Law after he caught COVID-19.  He unfortunately passed away from COVID-19.  The spouse contracted COVID-19 from her husband and also passed away.  The question was whether a wrongful death claim could proceed against the health care facility employer for the spouse’s death.

Holding:

The Court allowed a wrongful death claim for the spouse of the employee who contracted COVID during the course and scope of employment.

Reversed and Remanded.

 

NEW JERSEY LEGISLATIVE UPDATE

Assembly Bill 3986

Revises workers’ compensation law to increase contingency attorney fee cap in contingency cases from 20 percent to 25 percent.

Last Action: March 6, 2024 – Introduced, Referred to Assembly Labor Committee