PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
8/1/2023 – 8/31/2023
NOTICE OF THE INJURY
The Hershey Company v. Shawn Woodhouse (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: August 3, 2023
Issue:
Whether the WCJ and the Board erred as a matter of law by concluding that Claimant provided timely, adequate, and/or proper notice of his alleged work injury within the 120- day time period established by Section 311 of the Act?
Background:
Claimant began working for Employer full time on May 8, 2017, at which time he had a previous history of diabetic neuropathy. Claimant developed a right diabetic foot ulcer in June 2017, for which his podiatrist instructed him to rest his foot, and prescribed gel, medicine, and a DARCO Boot (Boot). Employer did not permit Claimant to wear the Boot on the factory floor because he worked in the food industry or remain seated while working because his job duties required he be able to see and check on the machines. Thus, Claimant’s doctor placed him off work from June 13, 2017 to August 26, 2017, during which time Claimant worked at Verizon Wireless. On September 11, 2017, Claimant emailed Employer to inquire whether he could return to work with a full cast. He did not return to work at that time. On September 26, 2017, Claimant’s doctor released him to work with one restriction, that he wear regular shoes due to his diabetic foot ulcer and infected blister. Thereafter, Claimant returned to work. On November 6, 2017, Claimant passed out at work and was taken by ambulance to the Hershey Medical Center, where he was admitted. Claimant had emergency foot surgery and was awaiting doctor approval to return to work. Claimant returned to work on March 22, 2018, and the following month underwent a below-the-knee amputation of his right leg. Thereafter, he did not return to work. Claimant filed the Claim Petition, alleging therein that he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the- knee amputation of his right leg. Claimant asserted that the injury was caused by standing for long periods of time at work, bagging and wrapping product, and by not being able to use the medically prescribed Boot to protect his diabetic foot ulcer. Claimant did not seek disability benefits; rather, his claim was limited to specific loss benefits. Employer filed an answer denying that Claimant suffered a work injury and contending the Claim Petition was its first notice that Claimant was alleging he had suffered a work injury in 2017. The
WCJ granted Claimant’s Claim Petition and awarded Claimant specific loss benefits for the loss of his great toe and remaining toes of his right foot, but denied specific loss benefits for Claimant’s below-the-knee amputation. Claimant did meet his burden of proof that notice of his injury was timely given to Employer. Claimant and Employer appealed to the Board. The Board reversed the WCJ’s decision as to the denial of relief for Claimant’s below-the-knee amputation and affirmed the WCJ’s decision in all other respects.
Holding:
Section 311 of the Act specifies that unless the employer shall have knowledge of the occurrence of the injury, or unless the employee shall give notice thereof to the employer within 21 days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within 120 days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury in which the nature of the injury or its relationship to the employment is not known to the employee, the time for giving notice shall not begin to run until the employee knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. The claimant bears the burden of demonstrating that proper notice was given. Claimant knew of the alleged causal connection between his amputations and his work-related duties in November 2017, but did not provide notice to Employer until his Claim Petition was filed in December 2019. Claimant admitted that he suspected that his amputation was related to his job duties in 2017; however, he did not notify Employer because Employer never asked him about it. Given Claimant’s testimony, Section 311 of the Act required Claimant to provide Employer notice that his injury was work related within 120 days of November 7, 2017. Although Claimant informed employer in the January 2, 2018 email that he had emergency foot surgery in November 2017, he made no reference to that surgery being work related. Claimant did not notify Employer that his foot surgery was work related until he filed his Claim Petition in December 2019, well beyond the statutorily mandated 120 days. The communications between Claimant and Employer prior to the November 2017 surgery list his restrictions at work as “Non- Occupational” and “NOC.” Thus, it was clear that both Claimant and Employer believed at that time that Claimant’s right diabetic foot ulcer was not work related. Claimant, in the communications after his foot surgery and before the Claim Petition, never stated to Employer that he suspected or believed that his foot surgery was work related. Because substantial record evidence did not support the WCJ’s conclusion that Claimant provided Employer with adequate notice of his work-related injury pursuant to Section 312 of the Act within 120 days as required by Section 311 of the Act, this Court reversed the Board’s order.
Reversed.
Anthony J. Harris v. County of Bucks (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: August 17, 2023
Issues:
Whether the WCJ erred in concluding that Claimant failed to give proper notice of the alleged 2020 Injury?
Background:
Claimant suffered a lower back strain on May 30, 2018, after lifting a patient (2018 Injury) while in the course and scope of his employment as a restorative aide for a long-term care nursing home. Employer subsequently issued a medical-only Notice of Compensation Payable (NCP) on August 27, 2018, as Claimant had returned to his preinjury position with no further loss of wages. After Claimant’s lower back symptoms recurred in March 2020, Claimant’s total disability benefits were reinstated, effective May 31, 2020, pursuant to an amended NCP issued on September 25, 2020, which described the 2018 Injury as a lower back strain or tear. Following a June 19, 2020 independent medical examination (IME) which opined that Claimant had fully recovered from the 2018 Injury, Employer filed petitions to terminate Claimant’s total disability benefits. On November 6, 2020, Claimant filed review and modification petitions, alleging a March 2020 work-related aggravation of the 2018 Injury, and seeking an amendment to the description of his accepted work injury to include a disc herniation at L3-4, with radiculopathy and stenosis. Claimant also alleged that he sustained a new work injury in March 2020 (2020 Injury). Employer denied the allegations and argued that Claimant failed to provide proper notice of the alleged 2020 Injury. The WCJ found that Claimant failed to meet his burden of proving that he sustained the alleged 2020 Injury, or that he provided timely notice thereof. The WCJ granted Employer’s termination petition. Claimant’s review and modification petitions were denied and dismissed. Claimant appealed to the Board, which affirmed.
Holding:
Claimant had multiple opportunities to advise Employer of any work incident that either increased the symptoms in his lower back or caused a new work injury, but he failed to do so within the time frame set forth in Section 311 of the Act. Accordingly, the WCJ properly concluded that Claimant failed to provide timely notice of the alleged 2020 Injury pursuant to Section 311 of the Act. Timely notice of a work injury is a prerequisite to receiving workers’ compensation benefits, and the claimant bears the burden of showing that proper notice was given. Unless an employer has knowledge of the work injury, Section 311 of the Act requires that an employee give notice of a work injury within 120 days of its occurrence. By Claimant’s own argument, he knew from the May 12, 2020 MRI that his lower back condition included an L3-4 disc herniation and stenosis. Yet, he still failed to apprise anyone.
Affirmed.
STATUTE OF LIMITATIONS
Charles B. Keffer v. Colfax Corp. & Phoenix Insurance (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 11, 2023
Issues:
Whether Employer should be held responsible for notifying Claimant when the three-year statute of repose in Section 413(a) of the Act would expire? Whether Employer should have been equitably estopped from raising the statute of repose in Section 413(a) as a defense to Claimant’s review and reinstatement petitions?
Background:
Claimant suffered a right low back strain in 2014. Claimant received partial wage loss benefits until he returned to full-duty work on March 9, 2015. Employer issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP), which specified that Claimant would no longer receive wage loss benefits, but that Employer accepted liability for Claimant’s work-related medical expenses. In 2018, Claimant underwent a discectomy and Claimant, and Employer executed a Supplemental Agreement, acknowledging that Claimant’s disability had recurred, and that he would receive total disability benefits. On June 29, 2018, Claimant returned to work with no further loss of wages and a second supplemental agreement was issued. In 2021, Claimant filed petitions seeking reinstatement of his total disability benefits, a review of his medical treatment and medical bills, and an amendment to the description of his work injury to include L5-S1 disc herniation. Employer denied the allegations and argued that Claimant’s petitions were time-barred, as they had not been filed within three years of Claimant’s last payment of compensation. The WCJ held that Claimant’s petitions were untimely, as the statute of repose in Section 413(a) of the Act, 77 P.S. § 772, bars the amendment of a work-injury description after three years following the last payment of wage loss benefits, and Claimant’s wage loss benefits ceased following issuance of the medical-only NCP on March 12, 2015. Thus, Claimant’s May 14, 2021 review and reinstatement petitions were filed more than three years after Claimant’s last payment of wage loss benefits. The April 23, 2018 Supplemental Agreement did not toll the three-year statute of repose in Section 413(a), as it had already expired when the Supplemental Agreement was executed.
Holding:
Claimant’s review and reinstatement petitions were filed more than three years after his last payment of compensation. Therefore, they are time-barred by the statute of repose in Section 413(a) of the Act. The record does not reflect that Employer engaged in conduct that would equitably estop Employer from raising the statute of repose as a defense to Claimant’s petitions. Given that Claimant received wage loss benefits pursuant to the January 14, 2015 NTCP until March 12, 2015, when Employer issued the NSTC and medical-only NCP, Claimant’s petitions were time-barred as of March 12, 2018. Employer had no reason to believe the January 16, 2018 IME would run afoul of the statute of repose in Section 413(a), as the three-year limitations period would not expire until March 12, 2018. Further, Employer was under no legal obligation to notify Claimant that the three- year limitations period for filing his review and reinstatement petitions, or otherwise pursuing his claim for benefits, would expire on March 12, 2018. The Act does not impose such a duty. Claimant’s receipt of partial wage loss benefits ended when Employer issued the NSTC and medical-only NCP on March 12, 2015. Thereafter, Claimant had until March 12, 2018, to file his review and reinstatement petitions. Claimant’s right to do so had already expired when the parties executed the April 23, 2018 Supplemental Agreement. Thus, the WCJ correctly held that the Supplemental Agreement did not toll the statute of repose, as the PA Supreme Court has held that no payment, whether by agreement or misconstruction of the Act, or commendable compassion, can operate to resurrect an expired claim, once the three-year limitations period in Section 413(a) has expired. Claimant’s estoppel argument is largely predicated on his compensation rights having expired on December 18, 2017. As discussed above, Claimant’s three-year period for filing his review and reinstatement petitions expired on March 12, 2018, after the January 16, 2018 IME took place. The doctrine of equitable estoppel requires more than Employer’s “silence or inaction.” Employer had to remain silent when it ought to speak out. Employer had no duty to inform Claimant of the statute of repose in Section 413(a), or of the date upon which the three-year limitations period would expire. Furthermore, there is no evidence to suggest that Employer affirmatively told Claimant that the three-year period had been tolled or somehow extended.
Affirmed.
SUBROGATION
John Mercalde v. Borough of Swissvale et al (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum
Opinion Decided: August 18, 2023
Issues:
(1) whether Employer’s total subrogation interest is limited by agreement to $50,505.99 pursuant to the TPSA (third party settlement agreement); (2) whether Employer’s total subrogation interest is limited to $50,505.99 because Employer cannot subrogate against Claimant’s recovery for pain and suffering; (3) whether Employer’s total subrogation interest is limited to $50,505.99 by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Background:
Claimant was injured in a car accident while on duty as a police officer for Employer. In related civil proceedings against the third-party tortfeasor, Claimant received a $250,000.00 settlement. Claimant and Employer thereafter executed a TPSA, dated April 3, 2020. After the parties executed the TPSA, Employer continued to pay indemnity benefits to Claimant at the reduced 25.84% rate identified in the TPSA. Claimant’s counsel in the related civil proceedings placed $50,505.99 into an escrow account, which amount Claimant believed would satisfy Employer’s entire subrogation interest under the TPSA. After Claimant’s counsel did not remit the payment, Employer filed the Review Petition. By Decision and Order circulated on January 29, 2021, the WCJ granted Employer’s Review Petition, finding that Employer did not intend by executing the TPSA to voluntarily limit its total subrogation interest to the amount of its net subrogation lien and that the TPSA clearly contemplates that Employer would subrogate against future payments of indemnity benefits and that the language added to the TPSA by the parties under “Further Matters Agreed Upon” was only intended to bring it into compliance with Whitmoyer. Claimant appealed to the Board, which affirmed. Claimant now seeks review in this Court.
Holding:
The Court held that all issues raised by Claimant are either without merit or are waived. There has been no evidence offered by Claimant other than his “interpretation” of the language contained in the TPSA under “Further Matters Agreed Upon.” Claimant attempts to isolate the language under the heading “Further Matters Agreed Upon” from the rest of the TPSA and counsel’s prior communications. The Court will not interpret one provision of an agreement in a manner that annuls another. It is clear from counsel’s communications and the inclusion of a citation to the Whitmoyer decision in the TPSA that the language under “Further Matters Agreed Upon” was intended chiefly to conform the TPSA to Whitmoyer and preclude the reduction of future medical expenses. Claimant introduced no evidence indicating whether, or to what extent, Claimant’s third-party settlement includes damages specifically designated as compensation for pain and suffering. On that basis alone, Claimant’s argument is meritless. Claimant’s Constitutional argument was waived.
Affirmed.
Barbara Tiano v. City of Philadelphia and PMA Management Corp. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 17, 2023
Issues:
Whether a self-insured government entity has subrogation right to paid HLA (Heart and Lung Act) benefits against her third-party recovery, regardless of whether the underlying injury was caused by a motor vehicle? Whether Employer is barred from exercising subrogation rights due to Claimant’s status as a government employee?
Background:
Claimant was employed as a police officer by Employer. Claimant sustained a work-related injury after falling into a utility hole. Employer accepted responsibility for Claimant’s injury by a Notice of Compensation Payable. In lieu of WC benefits, Employer paid HLA benefits to Claimant. Claimant was awarded $450,000 from a settlement against PECO Energy Co., the third-party tortfeasor responsible for her injury. After dispersing attorney’s fees and additional costs, a total of $264,385.31 remains in escrow pending resolution of the HLA lien. Employer filed review and modification petitions seeking subrogation against Claimant’s third-party recovery. Employer asserted a lien of $325,074.63, comprised of $13,782.26 in medical payments, $319,206.63 in wage loss benefits, and $5,868.00 in indemnity payments. Thereafter, while Employer’s petitions were pending before the WCJ, the parties reached an agreement to cease HLA benefits because Claimant had achieved maximum medical improvement. Additionally, Employer presented evidence that Claimant’s HLA benefits had changed to WC benefits. The WCJ determined that prior to the parties’ agreement, Claimant was only paid HLA benefits. The WCJ concluded that once the HLA benefits stopped pursuant to the parties’ agreement, Claimant then began receiving WC benefits. Accordingly, the WCJ found that Employer could begin subrogating paid WC benefits as of the May 29, 2020 agreement. The Board affirmed in part, reversed the WCJ on the subrogation issue, and remanded for calculations. The Board concluded that because the third-party settlement arose from a non-motor vehicle related cause of action, Employer has a subrogation right to paid HLA benefits from the date of the work injury.
Holding:
Precedent clearly supports Employer’s subrogation right to recoup paid HLA benefits from third-party settlement proceeds. Further, Claimant is not immune from Employer’s right of subrogation. Pennsylvania common law has recognized an employer’s right to subrogation of paid HLA benefits against a third-party tortfeasor. The public policy support for subrogation is three-fold, it allows for prevention of: (1) a claimant’s double-recovery, (2) an employer from making payments based on a third-party’s negligence, and (3) a third- party escape of liability for its negligence. Irrespective of whether the claimant is the recipient of WC or HLA benefits, an employer is entitled to recoup benefit payments from any third-party recovery that the injured employee has secured. Because this case does not arise out of the “use or maintenance” of a motor vehicle, Employer is entitled to a subrogation right of paid benefits against Claimant’s third-party recovery. As for immunity, section 23 of Act 44 codifies a sovereign immunity doctrine, which protects government officials and employees acting within the scope of their duties from subrogation claims against a claimant’s tort recovery in workers’ compensation matters. However, Section 23 of Act 44 does not protect Claimant’s government employee status as the injured party. It protects government tortfeasors, not injured government parties, and does not preclude an employer’s subrogation right against its own employee’s third-party recovery.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
John Hutchinson v. Annville Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 15, 2023
Issues:
Whether the credit provision of Section 3(2) of Act 111 violates due process rights?
Background:
In 2006, Claimant suffered a work-related fracture. In 2009, Employer had Claimant undergo an Impairment Rating Evaluation (IRE) under former Section 306(a.2) of the Act, which resulted in a WCJ decision granting a modification of Claimant’s benefits to partial disability as of February 23, 2010. Claimant did not appeal the WCJ’s decision. In 2017, Claimant filed a Reinstatement Petition seeking a change in his disability status from partial to total disability based on the Pennsylvania Supreme Court’s opinion in Protz II. In 2020, the WCJ issued a decision granting Claimant’s Reinstatement Petition and Claimant’s disability status remained at total disability effective March 6, 2017. In 2019, Claimant submitted to an IRE and Employer filed a Petition to Modify based on this IRE. As a result, in her 2020 decision, the WCJ also granted Employer’s Modification Petition, modifying Claimant’s disability status from total disability to partial disability effective the date of the IRE. Both Claimant and Employer filed cross-appeals. The Board affirmed the WCJ’s decision. On further appeal, the Court affirmed the Board’s order. In 2020, while the prior Board appeal was pending, Employer stopped paying Claimant’s disability benefits upon his receipt of 500 weeks of partial disability payments. As a result, Claimant filed the instant Reinstatement Petition alleging, that in calculating the 500-week partial disability benefit period, Employer used benefits paid pursuant to an IRE which has since been found to be unconstitutional and was invalidated. The WCJ issued an order dismissing Claimant’s Reinstatement Petition. The Board affirmed.
Holding:
With respect to the retroactive application of the credit provisions of Section 3(1) and (2) of Act 111, whereby any weeks of partial disability previously paid will count towards the 500-week cap on such benefits, the General Assembly intended that employers and insurers that relied upon former Section 306(a.2) to their detriment by not pursuing other methods of a modification should not bear the entire burden of the provision being declared unconstitutional. However, for the benefit of claimants, the General Assembly also specifically reduced the impairment rating necessary for a claimant’s status to be changed from 49% or lower to 34% or lower, making it more difficult for employers to change total disability status to partial disability status. That the General Assembly used specific language to give retroactive effect to these carefully selected individual provisions does not make the entirety of Act 111 retroactive as the amendment lacks clear language to that effect. The Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing TTD status.
Affirmed.
RES JUDICATA
Todd Nuttall v. City of Chester (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 8, 2023
Issue:
Whether the Board erred by affirming the WCJ Decision that dismissed the Petitions on the basis of res judicata?
Background:
In 2010, Claimant, a police officer for Employer, entered Employer’s Deferred Retirement Option Plan (DROP) program, which Employer offers to allow police officers with at least 20 years of service to continue to work and be paid while also receiving pension benefits. Under this program, an officer who is otherwise entitled to retire may enter the DROP program, continue to work, and be paid by Employer while also receiving his pension benefits. To participate in the DROP program, officers shall make an irrevocable commitment to separate from Employer’s service as a police officer and retire upon ceasing participation in the DROP, which they must do no later than five (5) years after entering the DROP. Claimant’s DROP separation date was January 31, 2015. On March 27, 2014, Claimant suffered a work-related injury. On September 12, 2016, Employer filed a modification petition and a suspension petition, both of which alleged that Claimant has post-injury self-employment earnings for which it was entitled to a credit. Employer amended the petitions to include a claim that Claimant voluntarily withdrew from the work force as a result of his participation in the DROP program, and a further allegation that it was entitled to a credit regarding its contribution to Claimant’s pension fund. In 2018, the WCJ issued a decision that, among other things, determined Employer had met its burden of proving that Claimant had voluntarily withdrawn from the work force as of his DROP retirement date of January 31, 2015. On appeal, the Board, and then the Court affirmed, determining that the objective facts presented in Nuttall I represented substantial evidence to support the Previous WCJ’s determination that Claimant had voluntarily retired from the work force and the Board’s affirmance thereof. In 2020, Claimant filed the instant Petitions, alleging that Claimant experienced a worsening of his condition as of December 21, 2015, relative to the March 27, 2014 work injury that was the subject of Nuttall I, and seeking a reinstatement of Claimant’s benefits. The WCJ dismissed the Petitions, determining that the Petitions are barred by the doctrine of res judicata. All issues concerning Claimant’s disability during that time the record was open should have been raised during the litigation. Claimant’s assertion that his condition worsened should have been raised during this litigation and is therefore precluded.
Holding:
Res judicata applies to this matter and precludes Claimant from relitigating the prior determination that his loss of earning power was due to his voluntary retirement. Claimant had ample opportunity to present evidence that his condition had worsened and that such worsening, rather than his voluntary retirement, was the cause of his loss of earning power during the course of prosecution of the petitions underlying Nuttall I.
Affirmed.
SPECIFIC LOSS
Jennifer Jackiw v. Soft Pretzel Franchise (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 10, 2023
Issue:
Whether the Board erred in affirming the WCJ’s application of Walton and limiting her compensation rate to 90% of her AWW as provided in Section 306(a) of the Act, 77 P.S. § 511.
Background:
On June 4, 2020, Claimant suffered a crush injury to her right lower arm, which was amputated. The parties stipulated that Claimant’s injury was a specific loss of the forearm under Section 306(c)(2) of the Act and that she was entitled to 370 weeks of compensation and a healing period of 20 weeks. However, the parties could not agree whether the specific loss benefit rate should be calculated under Section 306(a) or Section 306(c) of the Act and submitted the issue to the WCJ. Following a hearing, the WCJ determined that specific loss benefits should be calculated pursuant to Section 306(a) because the legislature did not intend to treat claimants receiving specific loss benefits differently from claimants receiving disability benefits. Claimant timely appealed to the Board, which affirmed.
Holding:
Section 306(a) provides that in cases of total disability, an employee may be compensated sixty-six and two-thirds per centum of her AWW beginning after the seventh day of total disability, and payable for the duration of total disability. Further, if the benefit calculated is less than fifty percent of the statewide AWW, then Section 306(a) defines a remedial calculation, the benefit payable shall be … ninety per centum of the worker’s AWW. Section 306(c) of the Act sets out the schedule of compensation for disability relating to specific loss, i.e., permanent injuries of certain classes. For example, an employee who suffers the loss of a forearm shall receive “sixty-six and two-thirds per centum of [her AWW] during three hundred seventy weeks.” This difference between Section 306(a) and Section 306(c) was at issue before the Walton Court. The Walton Court applied the remedial calculation defined in Section 306(a) and awarded the claimant ninety percent of his wages. The Court has indeed addressed and used the Walton interpretations throughout the years, and despite her tragic injury, Claimant simply has not provided a compelling reason to set aside 40 years of precedent.
Affirmed.
TERMINATION
Tawanda Harris v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 7, 2023
Issue:
Whether the WCJ’s decision granting Employer’s Termination Petition and denying the Review Petition is supported by substantial evidence?
Background:
On February 1, 2019, Claimant tripped over a mail bin in the course and scope of her employment with Employer as a clerical assistant. Employer acknowledged the injury in a Notice of Compensation Payable (NCP). Employer filed a Termination Petition and an accompanying Suspension Petition alleging that Claimant had fully recovered from her injuries as of the date of an independent medical examination. Claimant thereafter filed a Review Petition in which she sought to amend the NCP and add injuries. The WCJ denied Claimant’s Review Petition, granted Employer’s Termination Petition, and denied as moot Employer’s Suspension Petition. The Board affirmed.
Holding:
Claimant’s argument that the WCJ’s acceptance of the opinion that Claimant’s ongoing subjective symptoms and pain were not caused by the work injury violates the principles set forth in established law which requires an employer that seeks to terminate WC benefits on the ground that the claimant’s disability no longer is work-related to establish an independent cause for the disability that arose after the filing of the original NCP, is without merit. Because employer’s medical testimony is sufficient to support the WCJ’s termination of benefits, Claimant’s challenge to the WCJ’s decision in this regard is without merit. Although Claimant couches her arguments in this regard in terms of substantial evidence, her argument in reality is a veiled challenged to the WCJ’s credibility determinations, which the Court cannot disturb on appeal unless, in making those determinations, the WCJ acted arbitrarily or capriciously and disregarded evidence. The WCJ’s credibility determinations in this regard were neither arbitrary nor capricious. Rather, and contrary to Claimant’s contention, a reasonable mind could, and did, accept Employer’s expert’s testimony. This testimony was competent and unequivocal and provided substantial evidence to support the WCJ’s findings and credibility determinations. Claimant’s challenge on this ground is without merit.
Affirmed.
Dessalont Hawkins v. CJ’S Tire And Auto, Inc. and The UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 21, 2023
Issue:
Whether the Board erred in affirming the WCJ’s grant of UEGF’s (Unemployment Guaranty Fund) termination petition and modification of the pre-injury average weekly wage?
Background:
Claimant was involved in a motor vehicle accident on January 2, 2017, his first full day of work as a tow truck driver for CJ’s Tire and Auto, Inc. (Employer). Claimant filed a claim petition against Employer alleging that he sustained injuries to his lower back, left hip and left shoulder as result of the accident. Claimant later filed a claim petition naming both “Uninsured Employer” and the UEGF as defendants. By decision rendered March 19, 2019, the WCJ granted the claim petitions. In December 2019, UEGF petitioned to terminate Claimant’s workers’ compensation benefits, alleging that Claimant had fully recovered as of September 13, 2019. Claimant filed a reinstatement petition, asserting that his condition had worsened to the point of total disability as of February 4, 2019. The WCJ denied Claimant’s reinstatement petition, granted UEGF’s termination petition and concluded that Claimant had fully recovered as of September 19, 2019, and terminated Claimant’s medical and wage loss benefits as of that date. Regarding the question of Claimant’s average weekly wage, the WCJ fixed Claimant’s pre-injury average weekly wage at $500 per week. The Board affirmed.
Holding:
While this Court can and should consider the competency and sufficiency of evidence presented before a WCJ, the WCJ’s assessment of witness credibility is not subject to our review on appeal. A WCJ’s determination regarding the credibility of a medical witness is not subject to review on appeal. The Court agreed that $500 is a reasonable estimate of Claimant’s pre-injury average weekly wage. Due to the unpredictable nature of Claimant’s work schedule and the unusually limited duration of his employment, any amount beyond this range would constitute speculation, rather than the “prospective calculation” permitted by Section 309 of the Act. Therefore, the WCJ did not err in finding that $500 is a reasonable average weekly wage.
Affirmed.
MODIFCATION
Michael J. Smith v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 9, 2023
Issue:
Whether the WCJ’s decision to modify Smith’s benefits as of April 8, 2021, was supported by substantial and competent evidence?
Background:
Smith worked for Employer as a youth detention counselor when he sustained injuries on two separate occasions: September 21, 2017, and July 10, 2019. On September 21, 2017, Employer submitted a Notice of Compensation Payable (NCP) acknowledging Smith’s work injury as a strain or tear injury to his left shoulder and low back. On December 8, 2017, Smith returned to full-duty work. On July 10, 2019, Smith tripped and fell during a work incident and injured his lower back. Employer paid Smith workers’ compensation benefits beginning July 15, 2019. In 2020, Employer filed Termination Petitions averring Smith was fully recovered from his 2017 and 2019 injuries. Smith then filed a Review Petition alleging the description of his 2019 injury was incorrect. In 2021 Employer filed the Modification Petition based on a Specific Job Offer. The WCJ granted Smith’s Review Petition and denied Employer’s Termination Petitions. The WCJ granted Employer’s Modification Petition, modifying Smith’s benefits as of April 8, 2021.
Holding:
Questions of credibility, conflicting medical evidence and evidentiary weight fall within the WCJ’s authority, and the WCJ is free to accept the testimony of any witness, including medical witnesses, in whole or in part. The WCJ is the ultimate factfinder, but a WCJ must provide reasons for accepting or rejecting evidence. In Employer’s Modification Petition, Employer stated, as of April 8, 2021, a light-duty position is available, which was offered to Smith. When an employer offers claimant a job he previously performed, no job position or duties must be specified since the claimant can reasonably assume that he is being offered the same position that he has previously worked, and thus, is familiar with the requirements of that position. The WCJ determined the Employer has met its burden of proof that claimant was able to work in a modified-duty position of office clerk which was open and available as of April 8, 2021, whereby his benefits should be modified as of April 8, 2021. The WCJ adequately considered the evidence, and the Board affirmed the WCJ’s decision concluding it was based on substantial evidence and there was no error of law.
Affirmed.
Naomi Diblassio v. Therapeutic Center At Fox Chase (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 7, 2023
Issue:
Whether the WCJ’s conclusion that Employer met its burden to prove that Claimant failed to attempt in good faith a job offered to her within her capabilities was based on substantial competent evidence?
Background:
On March 2, 2015, while employed as a school psychologist, Claimant slipped at work and suffered a “trunk, low back area sprain,” which Employer accepted by issuing a Notice of Temporary Compensation Payable, setting a compensation rate of $471.40, based on a pre- injury average weekly wage of $523.77. Based on an IME of Claimant, Employer issued a Notice of Ability to Return to Work on June 19, 2018. On February 6, 2019, Employer filed a Modification Petition requesting that Claimant’s benefits be modified to partial disability. Employer alleged that Claimant had been offered a job within her physical capabilities, but she declined the position without adequate reason. The WCJ granted Employer’s Modification Petition. The Board affirmed the WCJ’s Decision.
Holding:
Claimant argues Employer failed to make its job referral in good faith because it did not consider Claimant’s age, lack of experience in the field, and other relevant factors. The WCJ is the ultimate factfinder herein and has exclusive province over questions of credibility and evidentiary weight. The employer bears the burden of proving the availability of suitable employment. To meet this burden, an employer must demonstrate that the job offer will return the claimant to productive employment, and not simply avoid payment of compensation. By her own admission, Claimant can perform the work vocationally, for the only concern to which she testified before the WCJ was whether she would be limited by the pain of her injury. The WCJ determined Ms. Wallace had credibly testified that the market research associate position is both physically and vocationally appropriate for Claimant. The WCJ also found Ms. Berg’s explanation that Claimant turned down the position because it was not of interest to her to be credible, and, therefore, Employer had met its burden to prove that Claimant did not attempt in good faith the position offered to her. Because the record evidence supports the WCJ’s findings, these findings were not made arbitrarily and capriciously, and the WCJ did not err in granting Employer’s Modification Petition.
Affirmed.
JUDICIAL DISCRETION
Frank Guille v. Upper Darby Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 15, 2023
Issue:
Whether the Board erred in affirming the WCJ’s decision because the WCJ’s credibility determinations were insufficient, and the findings of fact were not supported by substantial evidence?
Background:
Claimant was employed as an acting patrol supervisor. While Claimant was investigating a car without a license plate, the suspect put the car in reverse and accelerated backwards downhill into Claimant’s patrol vehicle. Employer filed a termination petition alleging full recovery. In response, Claimant filed a review petition to add additional injuries. The WCJ granted Employer’s termination petition and denied Claimant’s review petition. In so doing, the WCJ credited employer’s expert testimony over claimants. The WCJ found Claimant credible with respect to the occurrence of the work injury. The WCJ found Claimant not credible with respect to his symptoms from the work injury or his inability to work. The Board affirmed the WCJ’s decision.
Holding:
Claimant’s argument that employer’s medical expert’s opinions were equivocal because he was uncertain about the extent of the injuries Claimant had sustained and that the WCJ did not adequately explain his decision to reject claimant’s experts’ opinions is without merit. The WCJ, as fact finder, has exclusive province over questions of credibility and evidentiary weight, and the WCJ’s findings will not be disturbed when they are supported by substantial, competent evidence. The WCJ’s exercise of discretion, is not without limitation. Section 422(a) of the Act requires the WCJ to issue a reasoned decision that adequately explains a credibility determination. The WCJ in this case did more than announce one expert more credible and persuasive than another. The WCJ articulated an objective basis for his credibility determination by identifying and evaluating the factors relevant to credibility. Here, the WCJ, in a proper exercise of his discretion, credited employer’s expert’s testimony. The relevant inquiry in a substantial evidence analysis is not whether there is any evidence which supports the WCJ’s factual finding.
Affirmed.
Khary Parks v. Urban Outfitters, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 11, 2023
Issues:
Whether the WCJ capriciously disregarded uncontroverted evidence, and relied on incompetent evidence and/or contradicted by the overwhelming evidence in the record?
Background:
Claimant was injured during the course and scope of his work as a line cook for Employer on August 22 and 26, 2018, when he slipped and fell on a wet floor. Employer accepted the work-related injury via a Notice of Temporary Compensation Payable (NTCP) that described Claimant’s injury as a “low back contusion.” On September 5, 2018, Claimant filed two Claim Petitions alleging injuries to his neck, arms, and mid and lower back, resulting in total disability as of August 26, 2018. On November 20, 2018, Employer filed two Termination Petitions alleging that as of October 25, 2018, Claimant had fully recovered from the work-related injuries. The WCJ granted, in part, Claimant’s Claim Petitions to the extent Claimant “sustained a lumbar spine contusion and sprain” and concluded that medical benefits are payable until the date of the IME. The WCJ denied Claimant’s Claim Petitions in all other respects. The WCJ granted Employer’s two Termination Petitions effective October 25, 2018. Claimant appealed to the Board, which affirmed.
Holding:
In a workers’ compensation proceeding, the WCJ is the ultimate factfinder and the sole arbiter of credibility and weight of evidence. If the facts as found by the WCJ rest on substantial evidence, they may not be disturbed. It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. Although the Board must determine whether the WCJ’s findings have the requisite measure of support in the record, findings of fact can be overturned only if they are arbitrary or capricious. In this matter, the WCJ did not disregard uncontroverted evidence. Rather, the WCJ made credibility findings which was within her purview. Since Dr. Rushton’s testimony was not based solely on inaccurate information, Claimant’s argument that Dr. Rushton’s testimony was incompetent lacks merit. Claimant merely seeks to reweigh the evidentiary determinations made by the WCJ, which may not be done because such determinations are within the exclusive province of the WCJ as the factfinder and not subject to review on appeal.
Affirmed.
Brian Vazquez v. Arthur Jackson Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 4, 2023
Issue:
Whether the Board erred in affirming the WCJ’s decision because it is not a reasoned decision and the WCJ should have granted the Claim Petition, at least in part?
Background:
Claimant filed a Claim Petition in which he alleged, inter alia, that he suffered a work- related injury in the nature of injury to the lower back with left lower extremity radiculopathy while in the course of his employment as a project manager for Employer. Claimant also alleged that he suffered the injury while he was moving furniture and felt a sharp pain in his lower back, and that he notified his supervisor of the work-related injury. The WCJ noted that he reviewed Claimant’s testimony in conjunction with the other evidence, and did not find it credible. He found the employer’s witness credible and did not find the claimant’s expert credible. The WCJ held that Claimant did not sustain a work injury and concluded that he failed to sustain his burden of proving such to support the award of WC benefits. The Board affirmed.
Holding:
In a claim petition, the claimant bears the burden of proving all of the elements necessary to establish entitlement to benefits under the Act. Claimant’s expert based his opinion on causation entirely upon the history provided to him by the claimant, which the WCJ rejected. If the WCJ rejects the relied-upon information, then expert medical testimony premised upon the expert’s assumption of the truthfulness of the information provided is not competent. Acceptance of a history of an injury by an employer’s medical expert for purposes of rendering a medical diagnosis does not constitute an admission or concession by the employer that the injury was work related. There is simply no evidence supporting Claimant’s Claim Petition because the WCJ discredited Claimant’s testimony and rejected the existence of any work-related injury.
Affirmed.
Department of Agriculture v. Summer Pieretti (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 22, 2023
Issues:
Whether the WCJ erred in finding that Claimant’s work-related injury should be expanded to include “possibly” CRPS? Whether the WCAB erred in amending the conclusion of the WCJ regarding the nature of Claimant’s work injury from “possibly CRPS” to CRPS?
Background:
On August 30, 2017, Claimant was employed by Employer and sustained a left ankle injury when a car backed into her and pinned her foot and ankle between the curb and the car. Claimant filed a Claim Petition seeking benefits pursuant to the Workers’ Compensation Act. On September 12, 2017, Employer filed a Notice of Compensation Payable (NCP) describing the accepted work injury as a left ankle-severe contusion. On April 10, 2018, Claimant underwent surgery. On July 24, 2019, Employer filed a Petition to Modify Claimant’s benefits effective May 21, 2019, based on a labor market survey and an IME. Claimant filed a Review Petition, seeking to expand the description of her work injury to include “left foot/ankle crush injury, post-surgery with residual neuropathy and pain.” The WCJ denied Employer’s Modification Petition and granted Claimant’s Review Petition. Employer appealed. The WCAB ruled that there was substantial, competent evidence to affirm the WCJ’s determination that Claimant suffers from CRPS as a result of her work accident. As such, the WCAB amended the WCJ’s order to include CRPS, and not “possibly CRPS” as one of Claimant’s work-related injuries
Holding:
The WCAB did not err when it concluded that there was substantial, competent evidence to affirm the WCJ’s determination that Claimant suffers from CRPS as a result of her work accident. However, because the inclusion of the word “possibly” in the WCJ’s Conclusion of Law No. 3 was inconsistent with Finding of Fact No. 26, in affirming the WCJ’s decision, the WCAB simply deleted the word “possibly.” There was no error in doing so as the WCAB had the authority to correct the WCJ’s decision in this regard, based upon substantial evidence, and find that she not merely “possibly” suffers from it, but, in fact, does suffer from this condition.
Affirmed.
PHYSICAL/MENTAL INJURY
The School District of Phila. v. Shahyra Smith (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 22, 2023
Issues:
Whether the WCJ and Board erred in applying the physical/mental standard to Claimant’s claim petition?
Background:
Claimant sustained a work injury as a special education teaching assistant when a student struck her in the abdomen. Claimant was eight months pregnant at the time. Claimant filed a claim petition seeking total disability, alleging that she sustained an abdominal contusion and a psychological injury. Employer admitted that Claimant sustained an abdominal contusion but denied that Claimant subsequently developed a psychological injury. The WCJ awarded Claimant total disability benefits. Employer appealed to the Board, which remanded the matter to the WCJ to clarify his reasons for applying the physical/mental standard and to render findings of fact establishing that Claimant met the standard. Following remand, the WCJ circulated a decision, in which he found that Employer accepted liability on a medical-only basis for Claimant’s physical work injury. Therefore, the physical/mental standard applied. The WCJ found that Claimant met her burden, as she sustained a physical injury that required medical treatment. Employer appealed to the Board, which affirmed the WCJ.
Holding:
Employer maintains that Claimant did not sustain a physical injury requiring treatment and, therefore, the physical/mental standard did not apply. A claimant’s burden in a physical/mental case is identical to the burden utilized to determine eligibility for workers’ compensation. There is no dispute that Claimant sought treatment immediately following the work injury. The case law suggests that the courts have declined to apply the physical/mental standard for matters in which a claimant has not received any medical treatment for the physical stimulus that caused a work injury. They have applied the physical/mental standard for matters in which a claimant’s physical injury did not require extensive medical treatment. Here, Claimant did, in fact, receive treatment for her work injury, and the symptoms related thereto, albeit, not extensive. She subsequently developed PTSD that the accepted medical evidence related to the work injury. Based on these undisputed facts, the WCJ did not err in applying the physical/mental standard in this matter.
Affirmed.
DISSENTING OPINION BY PRESIDENT JUDGE COHN JUBELIRER
The dissent felt that the case should be evaluated under the mental-mental standard, but without requiring a claimant to show abnormal working conditions as is currently required with the mental- mental standard.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
08/01/2023 – 08/31/2023
JUDICIAL DISCRETION
Gonzalez v. New Jersey Transit Corp.
Superior Court of New Jersey, Appellate Division No. A-1408-22; 2023 WL 5344867
Decided: 08/21/2023
Background:
Claimant, a NJT bus driver, sustained an injury after a slip and fall in January 2016 while walking from a convenience store to his bus. He filed a claim petition for his injuries.
Employer admitted that the injuries were sustained in the course of employment “but did not admit the nature and extent of his injuries.” The Employer also reserved the right to invoke their Section 40 lien rights.
Employer proposed a Section 20 settlement to the Judge of Workers’ Compensation (JWC). There were still the contested issues of the causal relationship between the injuries and the incident. This was because Claimant’s prior injuries and prior workers’ compensation awards were not disclosed until treatment and settlement discussions had already commenced. In addition, Claimant had a Section 40 lien from a settlement with the convenience store and there were disputes involving this.
The JWC advised the parties that she needed Claimant to testify before approving the proposed Section 20 settlement and scheduled trial. Employer filed a motion for leave to appeal with this court. This court granted leave to appeal and remanded requiring the JWC to issue an order either approving or rejecting the proposed settlement along with a statement of reasons supporting the order.
The JWC timely issued an order rejecting the Section 20 settlement. The JWC supported the decision by stating a Section 20 settlement is the equivalent of a dismissal with prejudice since the petitioner receives a one-time payment and loses the right to seek additional benefits; it therefore requires additional scrutiny to avoid abuse. The JWC found no basis to support a Section 20 settlement in the Employer’s arguments regarding the nature of the credit for the pre-existing injuries, the Claimant’s failure to disclose prior injuries, and the Section 40 lien’s impact on recovery. Both the Section 40 lien and credit for the Claimant’s pre-existing injuries are not statutory reasons in support of a Section 20 settlement as they can be addressed in a “workers’ compensation court in a
N.J.S.A. 34:15-22 order approving settlement, which would not dismiss the case with prejudice.” The JWC determined that the Claimant’s live testimony was necessary to establish his credibility regarding his existing injuries since permanency doctors found a causal relationship and the Employer admitted the injuries were sustained during employment. Thus, the JWC determined that this matter was inappropriate for Section 20 settlement.
Employer appealed the order, and this court affirms the decision. Employer argues that the JWC abused discretion, specifically that the scope of their inquiry must be confined to the record. They argue that during the COVID-19 pandemic, Section 20 settlements were approved based on a petitioner’s affidavit and a waiver of appearances. They further argue that the JWC instead of making a fairness determination, focused on the validity of the disputes.
Holding:
The JWC has oversight regarding approval of settlements given to it by the Legislature. This includes hearing petitioner testimony to ensure compliance with Section 20. Here, the JWC properly exercised this discretion. Section 20 requires consideration of live testimony unless the JWC finds circumstances to prevent the petitioner’s appearance. It is within the JWC’s discretion to decide to approve a Section 20 settlement based only on an affidavit because of situations due to COVID-19. Here, there was no problem with Claimant testifying, therefore COVID-19 was not a valid reason to prevent testimony.
Liability and causal relationship were not at issue here. There was no evidence that the employer’s liability would be eliminated by the Section 40 lien credits or prior injury credits. It was admitted that the accident occurred in the course of employment and there was a factual finding that both parties’ doctors found a relationship between the accident and injury; therefore, a causal relationship clearly existed. The decision of the JWC did not abuse her discretion as her decision is justified and supported.
Affirmed.