PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
06/1/2024 – 06/30/2024
PROOF OF EARNINGS LOSS – LEAD EXPOSURE
Jerry Mercer v. Active Radiator (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: June 3, 2024
Background:
On August 24, 2018, Claimant advised Employer that he had sustained a work-related injury due to lead exposure, and Employer issued a notice of denial. Claimant filed a claim petition seeking full disability benefits. The WCJ issued a decision denying Claimant’s claim petition. The Board issued a decision and order affirming the WCJ’s order.
Issues:
- Whether the WCJ capriciously disregarded relevant and competent evidence and his findings and conclusions were supported by substantial record evidence? 2. Whether the WCJ wrongly failed to apply the occupational disease rebuttable presumption? 3. Whether the WCJ’s rejection of testimony by Employer’s experts regarding Claimant’s return to work for Employer and the danger of further lead exposure was in error?
Holding:
First, capricious disregard occurs when the factfinder deliberately ignores relevant, competent, and “apparently trustworthy” evidence. The WCJ may reject even a witness’s uncontradicted testimony. The WCJ did not capriciously disregard dispositive evidence of record and the Board did not err in affirming the WCJ in this regard. Although Employer’s experts testified to one degree or another that lead toxicity can result in varied and that in the absence of baseline lead testing before Claimant worked for Employer, it can be difficult to diagnose or rule out definitively, 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. A reasonable mind could certainly find this sufficient to support the WCJ’s determination that Employer’s experts’ testimonies were credible and sufficient to refute the allegations in the claim petition; therefore, that determination was supported by substantial evidence of record. Second, Claimant’s argument that the WCJ erred in declining to apply the presumption on the basis that he did not establish that he actually sustained lead toxicity is without merit. The WCJ was not required to conclude that he sustained a work-related injury because two of Employer’s experts stated that he should not be returned to work in an environment posing risk of further lead exposure. Here, the WCJ rejected the claimant’s position after hearing from multiple experts on both sides and evaluating their testimonies thoroughly. The Court has no basis to overturn the WCJ’s reasoned and supported credibility determinations as to the non-occurrence of an occupational disease and the legal conclusion based on those determinations that the presumption does not apply. Accordingly, the WCJ did not err in declining to apply the presumption and the Board did not err in affirming in this regard. Finally, the WCJ did not err by denying the claim petition and in giving more weight to Employer’s experts’ testimony that Claimant could resume work generally and without restrictions than to those experts’ acknowledgements that returning Claimant to a lead-oriented environment might not be optimal, and the Board did not err in affirming in this regard.
Affirmed.
MODIFICATION PETITION
Mark Rossi v. Cleveland Brothers Equipment Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 28, 2024
Background:
Claimant was injured in the course of his employment and Employer accepted the injury by a Notice of Compensation Payable (NCP). As of May 4, 2010, Claimant’s benefits were suspended. Claimant filed the instant Reinstatement Petition seeking to reinstate his benefits as of March 1, 2016, because his employment was terminated while he was on restrictions for his work injury. Claimant did not return to work after a second surgery until January 2013. Claimant again worked for Employer within his restrictions until June 2015 when he underwent surgery for an unrelated back condition. Upon being released to return to work with restrictions yet again, Employer informed Claimant that his previous position at their New Stanton, Pennsylvania, location was unavailable. Instead, Employer offered Claimant a parts warehouse position at its Cranberry, Pennsylvania, location. Claimant believed that the Cranberry position entailed heavier lifting, but ultimately declined Employer’s offer because of the mileage between his home and Cranberry – at least a 41-mile drive. Thereafter, Claimant obtained employment with a multitude of employers. However, due to his knee and back restrictions, Claimant did not last long in any position. The WCJ denied Claimant’s Reinstatement Petition. Although the WCJ found that Claimant continued to suffer from the effects of his work injury, he also found that Employer did not have work available to Claimant at his time-of-injury facility. The WCJ found that the evidence of record indicated Claimant’s reason for declining the Cranberry position was due to the travel distance and that any mention of Claimant’s continuing knee injury was simply “a passing comment.” The WCJ found that the Cranberry position was within Claimant’s physical capabilities and Claimant failed to show his wage loss was through no fault of his own. The Board affirmed the WCJ.
Issue:
Whether the WCJ erred by placing the burden of proof regarding Claimant’s job availability on Claimant rather than Employer and concluding that a position was within Claimant’s usual employment area?
Holding:
Where a claimant has been laid off after returning to a modified-duty position, he is entitled to the presumption that his disability is causally related to the continuing work injury. Once this presumption is established, the burden shifts to the employer to demonstrate that the claimant’s loss of earnings is not caused by the work-related disability by proving that there is suitable work available to the claimant. Jobs are available to a claimant if they are within the geographic area where others in the claimant’s community would accept employment. Claimant was entitled to a presumption that his continuing work injury was causally related to his loss in earning power, Employer bore the burden of rebutting this presumption by demonstrating that it offered him employment within his usual employment area. The WCJ prematurely shifted the burden of proof to Claimant. Employer failed to offer any competent testimony that members of Claimant’s community would accept offers of employment in Cranberry, be it by a vocational expert’s testimony or otherwise. Although it is true that the WCJ “as factfinder must have some latitude in determining what is ‘available’ to a specific claimant on the basis of the numerous factors set forth. Whatever the value of the WCJ’s personal experience may be, it is not a substitute for an employer’s evidentiary burden in this context. Furthermore, a two-day stint at the Cranberry location to cover another employee’s suspension is not the damning admission that Employer portrays it as. Many members of Claimant’s community may have accepted the Cranberry position knowing it was on a short-term basis. This does not mean they would have accepted it on a regular basis. Thus, while it may very well be the case that the Cranberry position was available to Claimant, Employer failed to make that case. The Board erred in affirming the WCJ because it was Employer, rather than Claimant, which bore the burden of demonstrating that others in Claimant’s community would accept the offered employment. To that end, Employer failed to offer any such evidence.
Reversed.
REINSTATEMENT PETITION
Veronica North v. GHG, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
Claimant was working for Employer as a home health aide when she was kicked in the right shin by a patient. Claimant continued to work without wage loss until May 19, 2016, when she underwent a surgical excision to remove a contusion, blood clot, and mass that had formed in her right leg following the injury. For a period of disability following the surgery, Claimant had been awarded wage loss benefits by a WCJ in a prior decision. On January 8, 2018, Claimant sustained an injury to her left knee, which aggravated pain symptoms persisting from the previous injury to her right leg. Claimant was again disabled for a period following that injury, for which she sought a reinstatement of the benefits from the prior injury. The WCJ reinstated Claimant’s wage loss benefits and amended Claimant’s injury description to include a scar neuroma. Following an updated IME, the parties filed additional petitions. The Employer’s expert disputed that there was a causal connection between the 2015 work injury and the conditions that purportedly necessitated a January 29, 2021 surgery. Employer’s expert further opined that there was no explanation for Claimant’s subjective pain complaints from a musculoskeletal standpoint. The WCJ denied both Claimant’s Review Petition and Employer’s Termination Petition. Neither party appealed from these aspects of the WCJ’s decision. Having been released back to work with restrictions, Claimant resumed working for Employer in a light-duty position on April 27, 2021, without loss in pay. Employer filed a Notice of Suspension on April 30, 2021, which announced its intention to suspend Claimant’s wage loss benefits as of April 28, 2021. Claimant did not file a challenge of the Notice of Suspension. However, on October 22, 2021, she filed a Penalty Petition. In the WCJ’s view, it was difficult to ascertain why the unchallenged Notice of Suspension should not be considered a fully executed supplemental agreement for the suspension of benefits consistent with Section 413(c) of the Act. The WCJ concluded, there is no reason to suppose that the Notice of Suspension was voided by any purported procedural error.
Issues:
Whether the WCJ further erred by declining to reinstate wage loss benefits for the period following Claimant’s recovery from work-related surgery?
Holding:
Claimant’s arguments as the lack of a reasoned decision and the other errors ascribed to the decision are without foundation. First, the contention that the WCJ failed to identify the evidence on which he relied is inaccurate. The WCJ’s decision contains a thorough discussion of the evidence that factored into his reasoning, above all the Notice of Suspension by which both parties agreed that Claimant’s benefits were to be suspended. The WCJ was under no obligation to consider all evidence presented, especially evidence that has already been adjudicated. If Claimant wished to challenge the WCJ’s previous determination that her September 8, 2021 surgery was not work-related, the appropriate method would have been to file an appeal of that decision to the Board. Furthermore, the WCJ carefully addressed each of Claimant’s procedural objections to the Notice of Suspension and explained in detail why none of its alleged defects rendered the agreement void. Claimant thus failed to establish why meaningful appellate review is in any way hindered by the WCJ’s decision. Employer’s refusal to pay wage loss benefits for her seven-week absence from work following her September 8, 2021, surgery was not illegal self-help and a disregard of the WCJ’s clear orders. As the WCJ explained in the decision below, the Notice of Suspension constituted a valid supplemental agreement between the parties, which the WCJ lacked authority to undo with an interim reinstatement order. In this instance, where no reinstatement order existed, the burden remained on Claimant to prove the elements for reinstatement. Since the WCJ’s February 6, 2022 decision already rejected the contention that her temporary absence from work following the September 8, 2021 surgery was work-related, the WCJ did not err in ruling subsequently that Employer was not responsible for wage loss benefits for that period.
Affirmed.
COMPENTENCY OF THE MEDICAL EVIDENCE
Giorgi Global Holdings, Inc. v. Edy Garcia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
Claimant sustained intense pain in both shoulders. As her symptoms persisted, she was forced to stop working a little while later. Employer accepted liability for Claimant’s injury, as bilateral shoulder pain from scaling and as a sprain or tear in the shoulders. Claimant filed a Claim Petition seeking wage loss benefits for bilateral shoulder damage caused by repetitive use and motion coupled with awkward positioning. The WCJ determined that Claimant met her burden of proof on the Claim Petition, finding that she sustained a work-related injury in the nature of an aggravation of a left shoulder chronic massive rotator cuff tear. While acknowledging that Claimant’s medical expert declined to state definitively whether Claimant’s ailment was work related, the WCJ accepted her clearly set forth opinion that Claimant’s activities in weighing the trays at chest height aggravated Claimant’s underlying shoulder condition such that Claimant required surgery and restrictions for her left shoulder and continued treatment for her right shoulder. The Board affirmed.
Issues:
Whether the opinions set forth in claimant’s expert report are incompetent and equivocal as a matter of law?
Holding:
Claimant’s medical expert’s opinions are not legally incompetent. The Court does not accord a talismanic significance to such words as “substantial contributing factor” when reviewing medical opinions. Rather, it only requires that the opinion permit a valid inference of causation. The WCJ’s omission of the word “substantial” is not legally erroneous, as the finding of a substantial contributing factor can be easily inferred from the context of his opinion. Employer also argued the claimant’s expert report substantiated nothing more than the occurrence of pain in Claimant’s shoulders while working, which itself is insufficient to establish work-related aggravation. This argument had no merit. The Court has consistently regarded the question of whether a work-related aggravation has occurred as one of fact, well within the WCJ’s purview. While the case law does require unequivocal medical evidence in instances where the causal connection is not obvious, it is only necessary that the evidence permit “a valid inference” that the requisite causal relationship was present. Contrary to Employer’s arguments, the report authored by Claimant’s expert was neither incompetent nor equivocal, and can provide the foundation for the WCJ’s decision. The appellate role in a workers’ compensation case is not to reweigh the evidence, but simply to determine whether the WCJ’s findings have the appropriate measure of support in the record. Since the WCJ’s factual findings in this case constituted a proper exercise of his discretion, the Board’s decision was affirmed.
Affirmed.
JUDICIAL DISCRETION
Daniel J. Cifelli v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 7, 2024
Background:
On July 30, 2020, Claimant, a corrections officer for Employer, was involved in an altercation with an inmate at work, during which he was injured. Employer accepted, via a Notice of Temporary Compensation Payable which converted to a Notice of Compensation Payable (NCP) by operation of law, a work-related injury in the nature of a laceration under his right eye when he was assaulted by an inmate who struck him in his face. Employer paid Claimant wage loss benefits until January 18, 2021, when it notified Claimant that it was suspending his benefits based on his return to work at no loss of earnings. On March 5, 2021, Claimant filed various Petitions asserting that his disability had recurred on February 17, 2021 when he could not work his time-of-injury position. He also argued that he sustained injuries beyond the accepted in the NCP and that the Employer violated the Workers’ Compensation Act when it failed to pay him disability benefits despite there being an open NCP. The WCJ found that all disability referable to the work injury ceased on October 19, 2021, thereby entitling Employer to a termination of benefits. Additionally, the WCJ found that Employer did not violate the Act in not paying wage loss benefits to Claimant after January 18, 2021, when Employer filed its notice of suspension, which Claimant did not challenge. The WCJ concluded that Claimant did not meet his burdens of proof on the Reinstatement and Penalty Petitions but that he did prove he suffered an additional work injury, the aggravation of his sternoclavicular arthritis, but that this injury did not disable him from his job and had fully resolved by October 19, 2021. The Board affirmed.
Issue:
Whether the WCJ’s decision represents a capricious disregard of the evidence, is unreasoned, and abuse of discretion, and unsupported by substantial evidence?
Holding:
First, the Board committed no error in the standard of review applied. In cases where both parties present evidence, the critical inquiry is whether there is evidence to support the findings actually made, and it is irrelevant whether the record contains evidence to support findings other than those made by a WCJ. A WCJ, as the factfinder, has the sole authority to assess credibility, to resolve conflicting evidence, and to determine the weight given to the evidence. The Board did not ignore the allegations of capricious disregard, rather it recognized that there was substantial evidence to support the WCJ’s findings of fact and the findings support the conclusions. If the Board erred in invoking the mental/mental standard, any such error was harmless because Claimant did not establish that he sustained PTSD in the first instance. Second, as for the WCJ’s failure to specifically reference that evidence in the findings, a WCJ is not required to provide a line-by-line explanation of the evidence presented and how that evidence may have affected the ultimate decision. Finally, whether medical opinion evidence is competent or equivocal is a question of law based upon a review of the opinion or testimony as a whole. A medical expert’s opinion is not incompetent unless it is based solely on inaccurate or false information. The opinion must be viewed as a whole, and even inaccurate information will not render the opinion incompetent unless it is dependent on the inaccuracies. Here, it cannot be said that the opinions, when taken as a whole, were solely based on inaccurate or false information and not legally competent for that reason. The Claimant did not establish that either the WCJ or the Board erred or abused their discretion in this matter. Accordingly, the Board’s Order is affirmed.
Affirmed.
Amanda Bailey v. Pyramid Health Holdings, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: June 5, 2024
Background:
Claimant filed a Claim Petition alleging that she sustained a lower back injury. Employer filed an Answer denying that Claimant was entitled to benefits. Employer alleged that, although Claimant had stopped working as of May 2, 2019, she had not stopped working because of her work injury. Claimant testified that she formerly was employed as a direct care worker for Employer, which position involved helping individuals with disabilities to cook, clean, and bathe. Claimant was injured while helping an individual out of the shower and back into his wheelchair. Claimant reported the incident to the on-call nurse but did not report that she had been injured because she did not feel that she was injured at that time. A few weeks later, Claimant was experiencing symptoms. Thereafter, Claimant reported the injury to her manager during a staff meeting and advised that she was going to file for workers’ compensation benefits because her physical condition was preventing her from doing her job. Disc abnormalities were noted on the MRI, and the Claimant’s expert attributed one of these to the work injury, as if would have created immediate symptoms, based on its size. Two fusion surgeries were performed. Claimant also appeared to have a prior low back issue, in spite of what she related to the providers. The WCJ did not find the Claimant credible, even though the incident occurred, as the claimant provided an inconsistent work injury. Claimant’s expert did not have an accurate history and employer’s expert was more credible. While Claimant met her burden to establish that she sustained a work injury in the nature of a lumbar strain and contusion with aggravation of a pre-existing radiculopathy. However, Claimant did not meet her burden to establish that her disability was related to that injury. The disability beginning May 2, 2019, was associated with the condition for which she had surgery, and which was unrelated to the work injury. The Board affirmed.
Issue:
Whether the WCJ’s credibility determinations are in error and supported by substantial evidence?
Holding:
Claimant’s issues involved the WCJ’s credibility determinations and whether they are sufficiently “reasoned” under Section 422(a) of the Act. Even where a WCJ makes credibility determinations on a cold record, the Court affords substantial deference and will overturn those determinations only where they are arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render the WCJ’s decision irrational. Claimant’s argument is simply an attempt to reevaluate and second-guess the WCJ’s credibility determination, which the Court may not do. A WCJ need only explain the rationale used for discrediting otherwise competent, relevant evidence to a degree that permits a court to conduct meaningful appellate review without having to “imagine” the WCJ’s reasoning. Regarding live witnesses such as Claimant, a WCJ may rely exclusively on the witness’s demeanor to justify a credibility finding. The WCJ’s explanation of his credibility determinations in this regard are adequately reasoned.
Affirmed.
JUDICIAL DISCRETION – COVID CASE
Laura A. Goodz v. County Of Lancaster (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 3, 2024
Background:
Employer hired Claimant as a full-time Correctional Officer at the County Prison beginning October 26, 2020. Claimant worked in D-Block, which was an isolation area for inmates with COVID-19, on November 20, December 6, and December 27, 2020, and January 1, and January 2, 2021. Claimant began to experience COVID-19 symptoms in January 2021, including fatigue and shortness of breath. She reported her concerns to Employer on January 8, 2021, after having worked a long shift and being asked to work mandatory overtime. Employer issued a Notice of Compensation Denial on March 11, 2021. On March 15, 2021, Claimant filed the Claim Petition, therein alleging that she suffered a work-related injury on January 8, 2021, when she contracted COVID-19 pneumonia from her employment at the County Prison. Claimant sought temporary total disability as of January 14, 2021, and ongoing. The WCJ denied Claimant’s Claim Petition. The Board affirmed.
Issue:
Whether the Board erred by affirming WCJ Lugo’s credibility determinations (COVID allegation)?
Holding:
The WCJ is the ultimate factfinder and is empowered to determine witness credibility and evidentiary weight. The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses. The WCJ’s decision is not arbitrary and capricious. The requirement that the WCJ adequately explain his reasons for accepting or rejecting evidence protects the parties to a decision by ensuring that a legally erroneous basis for a finding will not lie undiscovered. For instance, if a WCJ rejects evidence based on an erroneous conclusion that testimony is equivocal, or that the evidence is hearsay or for some other reason incompetent, such legal error will be evident and can be corrected on appeal. However, the WCJ’s prerogative to determine the credibility of witnesses and the weight to be accorded evidence has not been diminished by the amendments to Section 422(a) of the WC Act. The evidence established that Claimant tested positive for COVID on January 11, 2021, and thereafter developed COVID pneumonitis with evidence of shortness of breath with hypoxia. Both medical experts agreed on the diagnosis. Both medical experts also agreed Claimant cannot perform the duties of her regular job as a corrections officer. The issue was whether Claimant was exposed to and became infected with COVID from an exposure at work. Claimant maintained that the only place she was exposed to COVID was at work because she worked in D-Block where they housed people with COVID. Employer’s records indicate that during the possible period of incubation in this case (December 23, 2020-January 5, 2021), only one inmate tested positive for COVID on December 8, 2020, which was well before Claimant’s possible exposure period based on her January 11, 2021 positive test date. The WCJ described her reasons for accepting one medical testimony and rejecting the other testimony. The WCJ held that the Claimant has not established that she contracted COVID from an exposure at work and rejected Claimant’s expert’s opinion on causation. Claimant did not prove an exposure during the relevant times. Even where a WCJ has based a credibility determination on a cold record, substantial deference is due. The Court must view the reasoning as a whole and overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational. This Court would not hold that the WCJ’s credibility determinations of the medical experts were arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational. Accordingly, the Board did not err by affirming the WCJ’s credibility determinations.
Affirmed.
EMPLOYER EMPLOYEE RELATIONSHIP
Reading Anthracite Company, et al. v. Molly Oxenrider, et al. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: June 11, 2024
Background:
West Spring, Reading Anthracite Coal Company (RAC), and Rockwood Casualty Insurance Company (Rockwood) were the Petitioners. West Spring and RAC conduct coal mining operations. West Spring employed Decedent as an equipment operator but scheduled him to be laid off. RAC needed a bulldozer operator for a new project at one of RAC’s refuse banks. Decedent was directed to report to RAC for a bulldozer operator assignment. Decedent was fatally injured while operating a bulldozer on a refuse bank for RAC. West Spring, through its insurer, Rockwood, filed an NTCP acknowledging that Decedent sustained a fatal crushing injury during the course and scope of his employment. This was later converted to an NCP. RAC’s insurer, SWIF, filed an Notice of Workers’ Compensation Denial (NCD) acknowledging Decedent’s fatal crush injury, and stating a denial on the basis that no policy was in effect on the date of the accident. SWIF issued another NCD stating that Decedent was not an employee of RAC at the time of the injury. Later, Rockwood’s claims representative entered into an Agreement with Widow acknowledging therein that Decedent sustained fatal injuries to his head, thorax, and left leg when he was run over by the track of a bulldozer. On February 21, 2020, the United States (U.S.) Secretary of Labor filed a Motion to Approve Settlement (Settlement) between the Mine Safety and Health Administration (MSHA) and RAC. Pursuant to the Settlement, MSHA sought civil penalties for RAC’s six citations for violation of the Federal Mine Safety and Health Act of 1973 in connection with Decedent’s death. The Settlement reflected that Decedent was working under RAC’s direct control and supervision at the time of his death. RAC was ordered to pay a civil penalty of $70,359.50 to MSHA within 30 days. West Spring filed a Joinder Petition seeking to join RAC as an additional employer and SWIF as an additional insurer. The WCJ denied West Spring’s Joinder and Review Petitions. The WCJ found that West Spring failed to meet its burden of proving that there was either a material mistake of fact at the time it issued its NCP, or that there was insufficient time to investigate the claim before West Spring accepted it. In addition, the WCJ found that an ongoing employment relationship existed between West Spring and Decedent at the time of Decedent’s death on July 25, 2017. The WCJ also found that Rockwood shall remain the carrier liable for the fatal claim, subject to the Agreement. The Board affirmed the WCJ’s decision.
Issues:
(1) Whether the Board erred when it affirmed the WCJ’s denial of the Petitions with respect to Decedent’s employment relationship?; and (2) Whether the Board erred by affirming the WCJ’s decision, wherein, the WCJ failed to find that Decedent was a borrowed servant?
Holding:
A WCJ may, at any time, review and modify or set aside an NCP and an original or supplemental agreement or upon petition filed by either party. However, this is discretionary. The issue of who employed Decedent at the time of death was identified and vetted by the Rockwood Claims Adjuster during the time the NTCP was issued and the date the Conversion Notice was issued. There was communication which identified Decedent as an employee of West Spring. Then, more than two years after the accident, the Claims Representative from Rockwood, on behalf of its insured West Spring, entered into the Agreement. This document was signed by both the Rockwood Claims Representative and the Widow of Decedent. In addition, the evidence presented in this dispute, which was accepted as credible by the WCJ, supported a finding that Decedent remained on the payroll of West Spring up to the date of death and that there had been no determination as to whether Decedent would be permanently transferred to RAC. Clearly, there was an ongoing employment relationship between Decedent and West Spring at the time of his death. The credible evidence also supports a finding that at the time the accident was reported to Rockwood, the person responsible for reporting injuries and claims for work injuries, a RAC employee, considered Decedent an employee of West Spring. The Petitioners had sufficient time to investigate the identity of Decedent’s employer, based upon substantial evidence. The WCJ did not err or abuse its discretion by denying the Petitions with respect to Decedent’s employment relationship. The Board properly affirmed the WCJ’s decision.
Affirmed.
APPEALS – TIMELINESS
Ronald Neff v. Heat Treating (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
Claimant sustained an injury while employed as an operations manager by Employer. Claimant filed a claim petition, in which he requested the payment of full disability benefits as of the date of the episode, along with payment of medical bills and counsel fees. The WCJ granted the Claim Petition in part and denied it in part. The WCJ found that although Claimant did suffer a work-related injury, he was able to return to his pre-injury employment shortly after the incident on November 19, 2018, without restrictions or limitations. Accordingly, the WCJ granted the Claim Petition for medical benefits only and awarded counsel fees. The Board affirmed. Approximately seven months later, Claimant attempted to petition the Commonwealth Court for review of the Board’s Order pro se via email on November 4, 2022. The Court issued a Notice on December 19, 2022, providing Claimant with detailed instructions regarding the appeal process and enclosing a blank petition for review form. Claimant filed his petition for review three months later, on March 22, 2023. The Court issued an Order noting the potential untimeliness of the appeal and directing the parties to address this issue in their briefs or by appropriate motion.
Issue:
Whether the Claimant’s Petition is untimely and should be quashed?
Holding:
Whether Claimant’s Petition was timely filed implicates the Court’s jurisdiction over this appeal. The Pennsylvania Rules of Appellate Procedure provide that a petition for review of a quasijudicial order shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order. An appellate court may not enlarge the time for filing a petition for review. Claimant did not file his Petition in this Court until nearly one year after the Board issued its order, well in excess of the 30-day statutory appeal period. Given the patent untimeliness of Claimant’s Petition, the Court was without jurisdiction to consider it and therefore quashed this appeal as untimely.
QUASHED as untimely.
IMPAIRMENT RATING EVALUATIONS
Adam Kirsch v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
On May 14, 2018, Claimant sustained a work-related injury. Employer filed a Modification Petition seeking to change Claimant’s disability status from temporary total disability to temporary partial disability based on the results of an IRE performed on February 28, 2022. The WCJ granted Employer’s Modification Petition, holding that the Employer established entitlement to a modification of Claimant’s benefits to temporary partial disability status based on the IRE that found him 16% impaired under the American Medical Association “Guides to the Evaluation of Permanent Impairment,” 6th edition (second printing April 2009). The Board affirmed.
Issue:
Whether the IRE process set forth in Act 111 is unconstitutional?
Holding:
Act 111 does not represent an unconstitutional deprivation of property rights in violation of the due process and equal protection clauses of the Pennsylvania and United States Constitutions. The Court’s prior decisions reveal that the claimant’s arguments have no merit.
Affirmed.
PENNSYLVANIA LEGISLATIVE REVIEW
As of June 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. This proposed legislation was presented to the Pennsylvania Bar Association, House of Delegates, at the House meeting on May 10, 2024, and received overwhelming support.
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
06/01/2024 – 06/30/2024
WORKERS’ COMPENSATION ACT EXCLUSIVITY PROVISION
Evan v. City of Newark
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-0832-22; 2024 WL 2838522
Decided: 06/05/2024
Background:
Evan Scott (Plaintiff) was a sanitation worker employed by the City of Newark (Employer). On September 11, 2015, the plaintiff was assigned to collect garbage with a coworker. A resident gave the plaintiff and the coworker a case of beer along the route and a dispute arose over it. At the end of the route, the coworker threatened plaintiff and then went to his car and came back with a baseball bat. The coworker then hit plaintiff about six or seven times with the bat. The coworker also stabbed the plaintiff in the back of the head with an ice pick.
Plaintiff sought and received workers’ compensation benefits for his injuries. The plaintiff filed a complaint against the City and alleged the assault constituted intentional infliction of emotional distress and the City was responsible under respondeat superior and negligent retention/supervision. The City moved for summary judgment on three grounds, one of which was that the negligence claims were precluded by the Workers’ Compensation Act’s (WCA) exclusivity provision.
The plaintiff argued that the claims were not barred by the WCA because the City continued to employ the coworker after reports of violence towards other coworkers which resulted in substantial certainty of injury.
The court found that the plaintiff did not demonstrate that the City had exposed him to substantial certainty of injury, which would permit the claims to overcome the WCA bar.
Holding:
On Appeal, the plaintiff raised the same argument, specifically contending the City was aware of his coworker’s “history of violating the rules, harassing, and threatening fellow employees and assaulting coworkers” which was documented, yet they continued to keep him employed. Plaintiff argued this created a substantial certainty that he would continue and that his injuries were beyond what Legislature could have contemplated an employee to recover under the WCA.The WCA is the exclusive remedy for injuries sustained in an accident arising out of and in the course of employment. There is an exception for an intentional wrong. To show an intentional wrong, the employee must establish the employer knew that its actions were substantially certain to result in injury or death to the employee.The Court found that the coworkers past disciplinary history, including a prior altercation, does not alone establish that the City was aware that the coworker’s continued employment was substantially certain to cause the plaintiff’s injuries. Thus, the plaintiff did not meet his burden to overcome the WCA’s exclusivity provision.
Affirmed.
Gjana v. Diabes Enterprises
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2651-22; 2024 WL 2954302
Decided: 06/12/2024
Background:
Besnick Gjana (Plaintiff) broke his leg when he fell off a ladder at a construction site. Plaintiff did not speak English and secured the job through his cousin. Plaintiff filed a workers’ compensation claim as well as a personal injury claim.
There was confusion as to who Plaintiff worked for – Diabes Enterprises or Waterside Company. At the close of discovery, Defendants filed a summary judgment motion and asserted the plaintiff’s claims were barred by the exclusivity provision under the Workers’ Compensation Act (WCA). They additionally noted that the plaintiff did not dispute he worked for Waterside and that he filed a workers’ compensation claim against Waterside.
The trial court found that the WCA barred the plaintiff’s claims against Waterside. They additionally concluded only Waterside owed a duty to plaintiff. An argument that Waterside’s failure to procure workers’ compensation insurance rendered the WCA inapplicable was rejected.
Holding:
On appeal, plaintiff argues the judge erred in concluding the claims against Waterside were barred by the WCA because Waterside failed to obtain workers’ compensation insurance and thus should not have protections under the WCA. He additionally argued the judge erred in determining the other alleged defendants, Diabes Enterprises or 525 Livingston did not owe a duty to him.
Under the WCA, the Fund will provide compensation to uninsured employers who fail to provide compensation to their employees.
Here, plaintiff was an employee of Waterside and filed a workers’ compensation claim against Waterside. By agreeing to pursue the workers’ compensation claim, plaintiff relinquished his right to any other method or type of compensation. If Waterside fails to pay what was awarded by the workers’ compensation court, the plaintiff may seek recovery from the Fund. It was further found that the WCJ properly found that neither Diabes Enterprises or 525 Livingston owed a duty of care to plaintiff.
Affirmed.
REIMBURSEMENT OF COUNSEL FEES FOR NEGLIGENCE ACTION
Lawson v. Nunn
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-3295-22; 2024 WL 2862824
Decided: 06/06/2024
Background:
Doug Nunn is a thoroughbred racehorse trainer that owns horse stables at Monmouth Park Racetrack. Madison Lawson (Plaintiff) was thrown from a horse and injured at the racetrack.
Plaintiff filed a claim petition alleging she injured her left leg while employed as an exercise rider for Nunn. Following the claim petition, the plaintiff also filed a negligence action against Nunn to recover damages for the same incident alleged in the claim petition.
The insurance company providing coverage to Nunn took the position that under their agreement, coverage was not provided here. The question was whether the plaintiff was an employee at the time of the incident. Nunn asserted in its answer to the claim petition that plaintiff was not employed by Nunn at the time of the incident. The WCJ ruled that plaintiff was Nunn’s employee at the time of the incident.
Nunn filed a motion seeking counsel fees from the insurance company for its failure to defend Nunn in the negligence claim. The trial court found that the insurance company had a duty to defend Nunn in the negligence accident once the WCJ ruled the plaintiff was an employee and denied reimbursement for counsel fees.
Holding:
On Appeal, Nunn argued the trial court erred in denying counsel fees. Nunn alleged the insurance company breached its duty and must reimburse for the defense costs until the WCJ decided whether the plaintiff was an employee because that determination informed that there was coverage under the insurance policy.
The Court determined the insurance company’s duty to defend is in the plain language of the policy. The allegations in the plaintiff’s complaint fell under the insurance provided. The trial court properly concluded the insurance company had a duty to defend the negligence action prior to the WCJ ruling. The court further found that there was no duty to reimburse counsel fees because Nunn was not a prevailing party in the action.
Affirmed.
WITHIN THE SCOPE OF EMPLOYMENT
Barrett v. Hackensack Univ. Med. Ctr.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-3441-22; 2024 WL 2967278
Decided: 06/13/2024
Background:
Vilma Barrett (Plaintiff) worked for Hackensack University Medical Center (Defendant) as a certified nursing assistant. The plaintiff worked the night shift. On the day of her injury, she had clocked out of work and went with her son to the Hospital’s emergency department. After the son was discharged, the plaintiff was walking in the hospital’s parking garage when she tripped and fell. The plaintiff sustained injuries in the fall.
The plaintiff filed a negligence injury claim. The defendant moved for summary judgment, which was granted. The trial court found that the New Jersey Workers’ Compensation Act (WCA) barred the plaintiff from suing the defendant for her injuries because she never left the premises after concluding her shift.
Holding:
On appeal, the summary judgment was reviewed. The question was whether the fall was in the course of the plaintiff’s employment.
The WCA only compensates for injuries arising out of and in the course of employment. This requires causality and the circumstances to be related to the employee’s duties.
Here, the Court found that the plaintiff’s decision to remain at the hospital was purely personal. This was similar to other cases where the plaintiff was on the employer’s premises for personal reasons. The Court stated that the location of the injury is not dispositive. The premises rule applies only to the first part of the inquiry regarding the WCA’s application. Additionally, the WC court and trial court can both exercise concurrent jurisdiction to determine compensability. There was no evidence that the plaintiff was performing any work-related tasks while in the emergency room. The trial court erred in granting summary judgment. The Court reversed and vacated the order granting summary judgment.
Reversed and Remanded.
CAUSALLY RELATED
Salomone v. Spectrum360
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-0710-23; 2024 WL 3092731
Decided: 06/24/2024
Background:
Victoria Salomone (Petitioner) was employed as a special education teacher by Spectrum360 (Respondent). The claimant was kicked in her left breast by a student where she had breast augmentation 11 years earlier. The petitioner claimed the kick caused her tremendous pain, tenderness, extreme redness, and blood clotting in the left breast.
Petitioner filed a Claim Petition seeking benefits. In Respondent’s answer, they disputed the existence, nature, extent, causation, and permanency of the alleged injuries. Petitioner filed a Motion for Temporary Medical and Disability benefits seeking a breast reconstruction surgery.
Petitioner’s medical expert, Dr. Volshteyn, recommended breast reconstruction surgery as well as the removal and replacement of both implants as he suspected a slow leak rupture of the left breast implant. An MRI showed no definitive evidence of a rupture and Petitioner was sent for a second opinion. Dr. Friedlander examined the petitioner and found no evidence of implant damage or rupture. She further explained that saline implants, such as these, would deflate quickly unlike silicone implants. No deflation was shown on the MRI. Dr. Friedlander opined that the petitioner’s complaints are unrelated to the incident and a result of her significant weight gain. Respondent additionally asserted that the petitioner’s complaints include her comorbidities of lupus and rheumatoid arthritis.
The petitioner and two doctors testified at a plenary hearing on the Motion. Dr. Volshteyn had based his examination and initial opinion on the assumption that the petitioner had silicone implants. This undermined his testimony. Dr. Friedlander testified that the implant had not ruptured and that the proposed surgery was unnecessary and unrelated to the incident.
The judge denied the Motion for Medical and Temporary Benefits. The judge found Dr. Friedlander to be more credible because she relied on objective information. The judge concluded that the petitioner failed to prove by a preponderance of the evidence that the recommended surgery was causally related to the work incident.
Holding:
On appeal, the petitioner argued that the judge’s decision was not based on credible evidence and that the judge misapplied the medical standard.
The Court found that the judge’s decision was supported by sufficient, credible evidence in the record. The decision was supported by the testimony of Dr. Friedlander and the objective evidence from the MRI. The Court further found that the petitioner failed to sustain her burden of proving the surgery is casually related to the work incident. The judge’s findings are supported by competent relevant and reasonably credible evidence in the record.
Affirmed.
NEW JERSEY LEGISLATIVE UPDATE
Assembly Bill 3986/S2822
Revises workers’ compensation law to increase contingency attorney fee cap in contingency cases from 20 percent to 25 percent.
Last Action: May 16, 2024 – Reported out of Assembly Committee, 2nd Reading
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee