PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
9/1/2023 – 9/30/2023
REVIEWING BUREAU DOCUMENTS BASED UPON EDI
Solutions Construction LLC v. Sidar Garcia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 29, 2023
Issue:
Whether the WCJ erred by granting Claimant’s Claim Petition and Penalty Petition and denying the Petition to Review the Bureau Documents?
Background:
Claimant filed a Claim Petition for Workers’ Compensation (Claim Petition) under the Workers’ Compensation Act (Act) against his employer (Solutions Construction), alleging he sustained an injury at work on April 5, 2018. On December 18, 2018, Claimant filed another Claim Petition for Workers’ Compensation (Second Claim Petition), alleging the same injuries as in his Claim Petition, but adding dental/facial disfigurement to his list of injuries. In the Second Claim Petition, Claimant listed his employer as American Diamond Builders, Inc. (American Diamond). On July 26, 2019, the WCJ issued an interlocutory 410 Order against Solutions Construction and American Diamond. On September 18, 2019, Solutions Construction issued a Notice of Temporary Compensation Payable (NTCP). On September 27, 2019, Solutions Construction issued an Amended Notice of Compensation Payable (Amended NCP). On February 4, 2020, Claimant filed a Penalty Petition. Claimant asserted Solutions Construction did not issue payments in compliance with the Section 410 Order. On October 5, 2020, Solutions Construction filed a Review Petition requesting the WCJ set aside the NTCP and Amended NCP as materially incorrect. The WCJ Craig granted Claimant’s Claim Petition and Penalty Petition, and denied the Employer’s Review Petition, and ordered Solutions Construction to reimburse American Diamond for the benefits it paid consistent with Section 410 of the Act. The Board affirmed.
Holding:
The WCJ found Claimant was an employee of Solutions Construction at the time of his work injury. Substantial evidence existed on this issue. Therefore, substantial evidence in the record established Claimant met his burden of proof on his Claim Petition. Further, the WCJ awarded penalties based upon Solutions Construction’s failure to make payment as the Act required and by not paying benefits according to the September 27, 2019 Amended NCP. However, given the somewhat novel Bureau computer system issue, the WCJ declined to award penalties for Solution Construction’s failure to pay benefits on the Amended NCP. The WCJ’s exercise of discretion was not manifestly unreasonable or the result of partiality, prejudice, bias or ill will. The Board did not err in affirming the partial grant of the Penalty Petition. Finally, Solutions Construction filed a Review Petition to set aside the NTCP and Amended NCP, alleging they were materially incorrect. Solutions Construction argued the NTCP and Amended NCP were generated erroneously as a result of processing payment under the Interim Section 410 Order. The electronic data interchange (EDI) system is the system a claims adjuster uses to issue forms like the NTCP or NCP and to update a claim’s status. On September 18, 2019, an initial payment transaction on the Section 410 Order triggered the issuance of an NTCP. Two individuals supplied testimony about the EDI system and the process for generating NCPs. While certain testimony indicated that no one from the carrier issued the NTCP or Amended NCP, all forms were generated through EDI transactions and the NTCP was generated due to the State’s conversion to compensable, the WCJ did not find this testimony credible. Harte Pricer testified she was the manager of the EDI system for the Bureau since 2015, responsible for the EDI system and the staff who responded to inquiries. Pricer explained that a claims adjuster enters data in the EDI to generate forms such as an NCP. Further, Pricer offered ways an adjuster could enter information without generating an NCP. The WCJ considered Pricer’s testimony credible and found she “demonstrated a thorough knowledge of the EDI system” and the process by which it generated forms. The WCJ found that Employer and its insurer issued an NTCP and admitted liability. This finding was based upon the WCJ’s credibility determinations and the weight the WCJ afforded the evidence they presented. Credibility and weight of the evidence determinations are areas within the WCJ’s domain, and they had support in the record. The Board did not err in affirming the WCJ’s determination that Solutions Construction failed to meet its burden of proving a material mistake.
Affirmed
LABOR MARKET SURVEY
Adam Strzyzewski v. Extensis II, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 22, 2023
Issue:
Whether the Board erred by granting the Modification Petition based on general work availability because Employer failed to establish that it did not have a job available to Claimant between the Notice of the Ability to Return to Work and the Modification Petition?
Background:
Claimant suffered injuries to his neck and low back while in the course and scope of his employment. On July 19, 2019, Employer filed a Modification Petition following the Independent Medical Examination (IME). The Modification Petition was based on a labor market survey conducted by Employer’s vocational expert, who identified four open and available jobs in Claimant’s geographical area within his medical and vocational capabilities. Prior to conducting a labor market survey, the vocational expert attempted unsuccessfully to contact Claimant’s time-of-injury employer to determine if Employer had any modified work available for Claimant within his current restrictions and transferrable skills. Employer never responded and did not indicate that no work was available to Claimant. Therefore, she concluded that there were no job vacancies available with Employer. The WCJ found that Employer had demonstrated that work was open and available to Claimant within his medical and vocational capabilities as of the date of the first available job referral. Claimant appealed and the Board affirmed.
Holding:
An employer does not have the burden to prove the nonexistence 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 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. While Employer had the duty to offer Claimant a job within that relevant period if one was available, that duty is different than the burden of proof at a hearing on a modification petition. The case law makes it clear that during the hearing on the modification petition, the employer is not required to prove the nonexistence of an available job position. Only if the claimant presents some evidence that a job was open and available during the period between the notice of ability to return to work and modification petition, does the burden shift to prove the non-existence of the position. Absent some evidence presented by the claimant that an employer has an open and available position within the claimant’s work restrictions, the burden does not shift to the employer to prove it does not have such a position available.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
Dawn Rowles v. PA Dept of Military & Veterans Affairs (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: September 11, 2023
Issue:
Whether IREs are constitutional?
Background:
Claimant sustained a work-related injury. Employer obtained an impairment rating evaluation (IRE) of Claimant pursuant to Section 306(a.3) of the Workers’ Compensation Act (WC Act). Employer filed a modification petition seeking to change Claimant’s disability status from total to partial based on the IRE. The WCJ granted Employer’s petition and modified Claimant’s benefits to partial disability. Claimant appealed to the Board, arguing that Act 111 cannot be retroactively applied to her claim because her rights were established prior to its passage. The Board affirmed the WCJ’s decision and order.
Holding:
The Court has repeatedly rejected claimants’ arguments that they had vested rights in their total disability status that precluded retroactive application of Act 111’s IRE provisions to them. Claimants do not acquire vested rights to total disability benefits because Protz made the prior IRE provision void ab initio. The language of Act 111 is sufficiently specific to make its application retroactive.
Affirmed.
JUDICIAL DISCRETION
Maryam Muhammad v. Kelly Services Global LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 22, 2023
Issue:
Whether the WCJ’s findings regarding the extent of claimant’s work-related injuries were supported by substantial evidence and the decision was a reasoned decision?
Background:
On September 11, 2019, Claimant, who worked for Employer as a substitute teacher, sustained a work-related injury in the nature of a neck and back injury. On October 10, 2019, Employer issued a medical-only Notice of Temporary Compensation Payable (NTCP), recognizing a work-related injury described as a cervical and thoracic strain. On September 15, 2020, Claimant filed a Claim Petition seeking total disability benefits for the September 11, 2019 injury for the closed period of February 24, 2020, through April 6, 2020. Claimant also filed a Penalty Petition, asserting that Employer violated the Act by failing to fully investigate the claim and file the appropriate documents. On October 9, 2020, Claimant filed a second Claim Petition alleging she sustained a work-related injury in the nature of a low back injury on September 17, 2019, when she was involved in a motor vehicle accident while being transported for treatment for the September 11, 2019 work injury. Employer filed a Termination Petition alleging that Claimant had fully recovered from all work-related injuries as of January 14, 2021. The WCJ granted Claimant’s Claim Petitions for a closed period, denied her Penalty Petition, and granted Employer’s Termination Petition terminating benefits as of January 14, 2021. Claimant appealed and the Board affirmed.
Holding:
Because the Board did not address the reasoned decision claim, the Court was constrained to vacate the Board’s order and remand the matter to the Board for consideration of this issue.
Vacated, and Remanded.
Carmel G. Jean v. Bloomin’ Brands, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 25, 2023
Issue:
Whether the WCJ erred or abused his discretion by denying the Review Petition and granting the Termination Petition by misconstruing Employer’s expert evidence?
Background:
Claimant sustained an injury in the course and scope of her employment with Employer. Pursuant to a Notice of Temporary Compensation Payable (NTCP), Employer recognized Claimant’s injury as a low back strain and paid Claimant workers’ compensation benefits. Employer filed a Termination Petition alleging that Claimant had fully recovered from her work-related low back strain. Claimant then filed a Review Petition alleging an incorrect injury description. The WCJ concluded that Employer met its burden of proving that Claimant had fully recovered from her accepted work-related injuries. The WCJ concluded that Claimant failed to meet her burden of proving that she sustained any additional work-related injuries or that Employer violated the Act. Claimant appealed the WCJ’s decision to the Board, which affirmed.
Holding:
The WCJ did not misconstrue employer’s testimony. The testimony does not support an expansion of Claimant’s injury description. Further, the finding that Claimant was fully recovered from her accepted work injuries is supported by substantial evidence. The WCJ is the ultimate finder of fact, and the exclusive arbiter of credibility and evidentiary weight. The WCJ is free to accept or reject, in whole or in part, the testimony of any witness. Determinations as to witness credibility and evidentiary weight are generally not subject to appellate review. However, the WCJ’s evidentiary findings are not immune from review. The WCJ must base his decision on substantial evidence. The WCJ did so in this case.
Affirmed.
Kathy Ann Charter v. Lehigh Valley Health Network (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 22, 2023
Issue:
Whether the WCJ erred by denying the Claim Petition?
Background:
Claimant filed a Claim Petition for an injury that occurred on September 15, 2020. Claimant described the injury as “low back, right leg,” and listed September 15, 2020, as the date of the injury with November 16, 2020, as the date she stopped working due to the injury. Employer submitted a medical-only Notice of Compensation Payable (NCP) that acknowledged the September 15, 2020 injury as a “left low back strain.” Claimant filed a review petition to add other injuries. The WCJ denied and dismissed Claimant’s Claim Petition, and Review Petition, finding that Claimant did not meet her burden of proof to amend the injury’s description on the medical-only NCP.
Holding:
Here, Employer did not accept Claimant’s claim that she suffered a work injury that caused a loss of earning power, and this claim has been fully litigated. In the end, it was established that Claimant sustained a work injury, but not one that caused a loss of earning power. Because the WCJ found that Claimant failed to prove a work-related disability, there is no basis upon which Claimant could be placed under a suspension status. Claimant did not meet her burden of proof to establish that she sustained any additional work-related injury or work-related disability. While the WCJ credited Claimant’s testimony regarding the September 15, 2020 work injury, the WCJ also found Claimant was able to do light duty work without a loss of wages through November 16, 2020. It was not until November 16, 2020, when Claimant experienced a non-work-related injury at home, that she was not able to work light duty. These credibility determinations and findings substantiate that Claimant did not meet her burden of proof to show that the accepted lower back strain incurred on September 15, 2020, caused a wage loss as of November 16, 2020, or that the description of injury should be amended.
Affirmed.
TERMINATION PETITIONS
Susan Johntz v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 12, 2023
Issue:
Whether the Judge’s Decision on the Termination Petition is supported by substantial evidence, especially in light of a previous IRE?
Background:
Claimant is a psychiatrist who worked at Norristown State Hospital before suffering a work-related injury on August 15, 2013. According to Claimant, she was punched in the face by a patient who had just been released from prison. Her head went back and hit the plexiglass at the nurse’s station. Employer issued a notice of compensation payable, acknowledging Claimant’s injury as a concussion. Claimant filed a review petition, alleging she suffered injuries in addition to the concussion. In 2016, the WCJ granted Claimant’s petition, amending the notice of compensation payable to include diagnoses of “closed head injury, post-concussion syndrome, post-traumatic stress disorder (PTSD), significant facet mediated neck pain, cervical radiculopathy and neurocognitive deficit. Claimant participated in an impairment rating evaluation (IRE) which concluded, prior to Protz II, that she had an impairment rating of less than 50%. Consistent with the law as it existed at the time, Claimant’s workers’ compensation benefits changed from total to partial disability. The WCJ granted Claimant’s petition for reinstatement and reinstated Claimant’s workers’ compensation benefits to total disability effective the day she filed her petition. The WCJ granted Employer’s termination petition effective the day of the IME.
Holding:
The record supported the WCJ’s decision. Employer’s experts testified, to a reasonable degree of medical certainty, that Claimant was not suffering from her work-related diagnoses at the times they examined her. Claimant was essentially asking the Court to reweigh the evidence in her favor, which the Court cannot do. Even if an expert does not believe a work injury occurred, testimony that the claimant is fully recovered from any injury he or she might have sustained will be sufficient to support a termination petition. Employer’s experts’ testimony therefore supported the WCJ’s findings and conclusions. Further, the IRE did not preclude the employer from seeking termination. An IRE impairment rating is distinct from a determination regarding the claimant’s degree of disability.
Affirmed.
PENALTY PETITIONS
Eddy Jeantel v. Success America (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 12, 2023
Issue:
Whether the WCJ committed an error of law and abused her discretion by not imposing substantial penalties?
Background:
Claimant sustained work-related injuries when he became involved in a physical altercation with an unruly student. Employer issued a medical-only notice of compensation payable. When Claimant reported his injuries to Employer’s owner (Owner), Owner did not provide Claimant with a list of Employer’s panel physicians or indicate that Claimant had a choice of panel physicians, but made an appointment for Claimant to be seen by a particular panel provider, WorkNet. During a hearing on a claim petition filed by Claimant, which was ultimately denied, Claimant sought the imposition of penalties due to Employer’s failure to provide him a list of panel physicians at the time of injury as required by the Act. Claimant did not allege that Employer failed and/or refused to pay for Claimant’s causally-related and reasonable and necessary medical treatment.
Holding:
At issue in this matter is the denial of Claimant’s request for penalties based on Employer’s violation of the Act. Here, it is undisputed that Owner did not provide Claimant with a list of panel physicians or notice of his rights, as required by the Act, but made an appointment for Claimant with WorkNet, which was one of the providers on the panel list. This, as the WCJ found and the Board affirmed, was a violation of the Act and Section 127.755 of the regulations. However, this does not mean that the imposition of a penalty was required. The effect of Employer’s failure to provide the requisite notice was that it was liable for all of the medical treatment received for the work injury, which is the relief the WCJ granted. Such relief is consistent with Section 306(f.1)(1)(i) and the regulations. Further, Claimant did not testify that he was unable to obtain treatment or care after the work injury and, in fact, sought and obtained treatment from his own providers, for which Employer was liable. Under these circumstances, there was no evidence of ill will or bias in the WCJ not imposing penalties for this technical violation of the Act, as she gave objective reasons for her decision, and, therefore, there was no abuse of discretion in not imposing penalties.
Affirmed.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
09/01/2023 – 09/30/2023
INJURIES WITHIN THE COURSE OF EMPLOYMENT
Duane Sykes v. George Harms Construction Company, Inc.
Superior Court of New Jersey, Appellate Division
No. A-3320-20; 2023 WL 6305747
Decided: 09/28/2023
Background:
The petitioner worked for George Harms for twenty-eight years. On April 30, 2019, he lost consciousness at work while operating an excavator on a bridge construction project. The petitioner testified that a piece of asphalt broke loose, causing the excavator to move into a barrier and his body to move backwards. The next thing he testified remembering is talking to a doctor hours later. The petitioner believes that “he hit his head on something in the cab and lost consciousness.” He has a medical history of seizures.
The petitioner brought a motion for medical and temporary benefits seeking an MRI of his right shoulder as well as his cervical and lumbar spine. The MRIs were recommended by both doctors who had performed his need for treatment exams. He testified that he was experiencing a lot of pain in his shoulder, neck, and back since the accident and had not experienced any pain in his back or shoulder prior to the accident.
On the day of the accident, the petitioner was working with a dump truck driver. The driver testified that saw the excavator movement and radioed another worker to check on the petitioner. He testified that the excavator had been operating smoothly until the incident. When the worker found the petitioner, he was “passed out.” The worker stated that the petitioner was not visibly injured. Another worker testified that the petitioner was not acting normal but got out of the excavator without assistance or complaints of pain.
The WCJ denied the petitioner’s motion for medical and temporary benefits. He explained that the petitioner carries the burden of proof to show that the injury occurred in the course of employment. The WCJ found that there was no way for the petitioner’s head to have hit the back of the cab based on the configuration of the cab. He further explained that the petitioner lost consciousness, but according to witnesses was in a normal position after he hit the barrier. The WCJ found that there was no evidence petitioner had moved from that normal position. Additionally, the WCJ rejected the petitioner’s argument that whatever the cause of his loss of consciousness, it occurred in the course of his employment making the injuries compensable. He explained that “there is no presumption that once a petitioner goes unconscious, that whatever else he claims happened to him must have happened during the course of the accident.” There was no direct or circumstantial evidence that the petitioner suffered the impact he claims caused his injuries. He found the petitioner’s testimony not to be credible as it was only based on theory.
Holding:
This court reviewed this decision based on “whether the findings made could have been reached on sufficient credible evidence present in the record.” The court found that the petitioner has not provided any reason to reject the WCJ’s findings. There is substantial credible evidence to support the findings. The court finds that petitioner’s new argument that the WCJ did not protect “him from bad faith conduct of the respondent, is utterly without merit.”
Affirmed.