PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
07/1/2024 – 07/31/2024
IMPAIRMENT RATINGS EVALUATIONS – SCOPE
Supreme Court of Pennsylvania – Published Per Curiam Opinion (Evenly Divided Court)
Vincent Sicilia v. Api Roofers Advantage Program (WCAB)
Decided: July 17, 2024
Justice Donohue, in Support of Affirmance of Commonwealth Court
Justice Brobson, in Support of Reversal of Commonwealth Court
Justice Brobson, in Support of Reversal of Commonwealth Court
Issue:
Whether, under Duffey, the IRE doctor was permitted to consider the spondylolisthesis diagnosis during the IRE when calculating his impairment rating, such that the Commonwealth Court did not expand that holding?
Background:
Claimant was employed by Employer when he sustained work-related injuries after falling from a ladder. Employer issued an NCP accepting Claimant’s injuries as a lumbar strain and left knee contusion and, in 2003, a WCJ approved a stipulation by the parties that expanded the scope of Claimant’s work-related injury in the NCP to include chronic pain syndrome and chronic adjustment disorder with anxiety and depression. In 2007, Claimant underwent back surgery to alleviate the pain associated with his conditions and, during the next several years, the parties engaged in protracted litigation over Employer’s liability for medical expenses due to the surgery. In 2011, a WCJ determined that Claimant’s surgical procedures were work-related. The instant matter began in August of 2019 when, upon Employer’s request, Dr. Daisy Rodriguez conducted an IRE and found that Claimant had reached maximum medical improvement on the NCP-defined injuries as of September of 2017, with a whole person impairment rating of 25%. Based on the IRE report, Employer filed a petition to modify benefits. Dr. Rodriguez subsequently prepared an addendum report at Employer’s request, in which she arrived at a 45% impairment rating when the additional spinal diagnoses were included in her analysis under the AMA Guide. Dr. Rodriguez was deposed and opined the spondylolisthesis diagnosis addressed in the Addendum IRE Report was causally related to the injury. The WCJ found Dr. Rodriguez credible regarding an impairment rating of 25% in the original IRE Report. However, the WCJ determined that her testimony that the work-related injury includes additional diagnoses was not credible and rejected Dr. Rodriguez’s evaluation of spondylolisthesis because it was not listed in the NCP nor in any of the prior decisions that described defined injuries. Accordingly, the WCJ granted Employer’s petition to modify benefits on that basis. On appeal, the WCAB distinguished Duffey on the basis that Dr. Rodriguez had “clearly recognized” that the spondylolisthesis diagnosis that informed the 45% impairment rating was distinct from the “accepted injury,” which is why she calculated different impairments, and affirmed the WCJ. The Commonwealth Court reversed the WCAB’s decision.
Holding in Favor of Affirmance:
The affirmance agreed with the Commonwealth Court’s decision insofar as it held that the IRE reviewer was permitted under Duffey v. Workers’ Compensation Appeal Board (Trola-dyne, Inc.) to consider additional diagnoses as impairments that are due to compensable injuries. The Commonwealth Court’s decision faithfully applied Duffey in that regard; it did not expand it. The affirmance also agreed with the Commonwealth Court that the WCJ did not conduct a genuine credibility assessment of the evidence provided by the IRE doctor regarding those additional diagnoses. However, the Commonwealth Court should not have reversed the WCJ’s decision outright under these circumstances. Instead, the Commonwealth Court should have remanded this matter to the WCJ for an actual credibility assessment. Had the Court reached a consensus on that point, the affirmance would have also directed the Commonwealth Court to remand this matter to the WCJ for a credibility assessment. It was Dr. Rodriguez’s professional medical opinion that Claimant’s spondylolisthesis was ‘due to’ the NCP-defined workplace injuries. As this Court explained in Duffey, while the NCP defines the compensable injury, that “simply does not determine the range of impairments which may be ‘due to’ such injury.” Under 77 P.S. § 511.3(1), the “physician-evaluator must exercise professional judgment to render appropriate decisions concerning both causality and apportionment of identified impairments. That is precisely what occurred here. The WCJ rejected the spondylolisthesis diagnosis as an impairment only because it was not listed in the NCP and prior decisions describing the NCP not because the Addendum IRE Report and the related testimony suggested this. Thus, Dr. Rodriguez did not manufacture a new workplace injury. She examined the medical records and determined that the NCP-defined injuries included spondylolisthesis. The Commonwealth Court correctly held that the WCJ rejected the higher impairment rating evidence based on “a misapprehension of the discretion accorded an IRE physician-evaluator” under our interpretation of the Workers’ Compensation Act in Duffey.
Holding 1 in Favor of Reversal:
The Duffey Court concluded that the legislature intended to give IRE physicians the authority to decide whether the claimant has any additional compensable injuries beyond those listed in the NCP—and then to rate those additional injuries. Though nothing in the Act authorizes physicians to sit as junior-varsity WCJs, the Duffey majority created this result by conflating the concepts of “injury” and “impairment.” We should accept Employer’s invitation to overturn Duffey today. Put simply, Duffey made two critical mistakes. It took away the authority of WCJs to define the claimant’s compensable injury. And it gave physician evaluators permission to make a de novo assessment of the claimant’s “compensable injury” at every single IRE. Remedying the former error without addressing the latter is only a partial fix. While Justice Brobson’s approach is better than the status quo that Duffey wrought, the disruptive consequences arising from Duffey’s expansion of the physician-evaluator’s proper scope would persist.
Holding 2 in Favor of Reversal:
While Duffey may have stretched the bounds of the IRE physician-evaluator’s authority by requiring her to consider whether certain conditions—i.e., conditions not included in the description of the accepted work-related injury but reported by the claimant at the time of the IRE—were fairly attributable to the compensable injury and, if so, to include those conditions in her determination of the claimant’s whole-person impairment rating, Duffey was never intended to eliminate the WCJ’s exclusive role to determine the nature and extent of a claimant’s work-related injury through her determinations of credibility and evidentiary weight. Rather, Duffey was meant to apply only under very unique circumstances: where, during the IRE proceedings, the claimant sought to litigate before the WCJ the extent of his work-related injury and, in doing so, introduced his own medical evidence to establish that a material mistake of fact or law was made at the time the NTCP/NCP was issued or that the scope of the work-related injury had changed. Here, unlike in Duffey, Claimant did not produce any medical evidence to establish that, in addition to those diagnoses included within the accepted work-related injury, he also sustained a lumbar disc protrusion or spondylolisthesis with lumbar radiculopathy as a result of the August 25, 1999, work-related incident. Claimant sought to rely exclusively on Dr. Rodriguez’s testimony and opinions that those diagnoses were causally related to the work-related incident and that, when those diagnoses were included in the IRE determination, Claimant had a whole-person impairment rating of 45%. The WCJ, however, rejected Dr. Rodriguez’s testimony and opinions in that regard on the basis that Claimant’s work-related injury had been described in numerous prior decisions and that such description had never been amended or expanded to include those additional diagnoses. Making this credibility determination and rejecting Dr. Rodriguez’s testimony and opinions was certainly within the WCJ’s purview as the factfinder. The Commonwealth Court impermissibly expanded this Court’s holding in Duffey so as to usurp the WCJ’s authority to determine the nature and extent of a compensable injury and substituted its assessment of the credibility of the witnesses for that of the WCJ when it reversed the Board’s decision and remanded the matter for the reinstatement of Claimant’s total disability benefits.
Affirmed – The IRE reviewer is permitted under Duffey v. Workers’ Compensation Appeal Board (Trola-dyne, Inc.) to consider additional diagnoses as impairments that are due to compensable injuries.
EXCLUSIVITY
Elite Care, Rx v. Premier Comp Solutions, LLC, et al.
Supreme Court of Pennsylvania – Published Per Curiam (Evenly divided Court)
Decided: July 17, 2024
Justice Dougherty, in Support of Affirmance of Superior Court
Justice Wecht, in Support of Reversal of Superior Court
Issue:
Whether the trial court lacked jurisdiction over Elite Care’s civil action?
Background:
Appellant Insurers refused to make payments to Elite Care totaling $548,035.28 in prescriptions for 110 injured employees on the basis that Elite Care was not a provider under the Act. An attorney from Premier Comp Solutions, told Elite Care that if it disagreed with Insurers’ decision, its exclusive remedy is to file an Application for Fee Review with the Pennsylvania Workers’ Compensation Bureau. Elite Care attempted to confirm its provider status, and receive payment, by filing fee review petitions for each patient, as Insurers demanded. But when some of those fee review determinations started to go in Elite Care’s favor, Insurers then appealed these decisions to a Hearing Officer and argued that the Fee Review process lacked jurisdiction over this issue of whether Elite Care was an agent of these Providers. Those Hearing Officers authored Opinions and Orders finding that the Fee Review process lacked jurisdiction over this issue and specifically advising that Elite Care may wish to pursue other remedies, which may be available outside of the fee review process. Rather than appealing to the Commonwealth Court, Elite Care again did as instructed and filed the civil action at issue, seeking a declaration that it is a provider under the Act and also alleging fraud, civil conspiracy, and unjust enrichment. In response, Insurers filed preliminary objections, alleging, inter alia, the trial court lacked subject-matter jurisdiction because Elite Care was required to seek payment through the workers’ compensation system pursuant to the Act’s exclusivity provision, 77 P.S. §481. The trial court overruled Insurers’ preliminary objections and the Superior Court affirmed.
Holding in Favor of Affirmance:
The Superior court misinterpreted Subsection 306(f.1)(5) of the Workers’ Compensation Act (the Act), 77 P.S. § 531(5)] and created a state of affairs that plainly conflicts with the Act’s exclusive remedy provision. However, half of the Court would affirm the decision below and allow the civil action filed by Elite Care, RX, LLC to proceed based on the doctrine of judicial estoppel. However, generally, and going forward, the affirmance agreed trial courts lack jurisdiction over civil actions seeking payment for workers’ compensation benefits for the reasons set forth in the Opinion in Support of Reversal, concluded that judicial estoppel bars Insurers from advancing that argument in this particular case. Here, Insurers have assumed inconsistent positions. First, Insurers told Elite Care it had to utilize the fee petition process within the Workers’ Compensation Bureau. Then, once Elite Care started succeeding before that body, Insurers appealed and argued the fee review hearing officers lacked jurisdiction to determine provider status. After Insurers’ argument persuaded the hearing officers to dismiss Elite Care’s fee petitions, Elite Care filed a civil suit. During the civil action, Insurers again switched their position and argued to the trial court that it lacked jurisdiction because provider status must be determined through the workers’ compensation system. Insurers admit their position has changed. Although the Armour Pharmacy case may have justified Insurers’ final switch, it does not explain their earlier conduct. Instead, it seems apparent that Insurers continuously changed course only to avoid liability. Thus, rather than reward Insurers for their gamesmanship, the affirming half of the court would hold Insurers are judicially estopped from challenging the trial court’s jurisdiction over Elite Care’s civil action.
Holding in Favor of Reversal:
The decision below plainly conflicts with the Workers’ Compensation Act’s exclusive remedy provision, which this Court has held “extends to [the] workers’ compensation insurance carrier, protecting the insurer to the full extent of the employer’s protection.” Because the employer/insurer’s obligation to pay the claimant’s medical expenses arises from the Workers’ Compensation Act in the first place, the workers’ compensation system is the exclusive forum for resolving both payment disputes and alleged mismanagement of workers’ compensation claims. The Superior Court’s rationale for departing from this well-established rule is unpersuasive. This Court need not adopt Armour Pharmacy’s reasoning in toto to conclude that the Superior Court erred below. It is enough to say that Armour Pharmacy was correct in abandoning the notion that provider status “is a question of liability, which is beyond the scope of a fee review and must be decided by a Workers’ Compensation Judge.” Whether challenges to an entity’s provider status should be resolved in the first or the second level of the fee review process is irrelevant. It is enough for our purposes today to say that nothing in the Act prevents the issue of a putative provider’s standing from being resolved in fee review. The Superior Court therefore erred in holding that the Act “does not provide for an administrative proceeding by or against putative providers or their billing agents in the Bureau.” The decision below misinterpreted Subsection 306(f.1)(5) and created a state of affairs that plainly conflicts with the Act’s exclusive remedy provision. Elite Care’s sole remedy lies in the administrative realm. The lower courts therefore erred in allowing Elite Care’s civil suit to proceed.
Affirmed – based upon an evenly divided court.
IMPAIRMENT RATING EVALUATIONS
Douglas Bellamy v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 22, 2024
Issues:
(1) Whether the WCJ erred in reinstating Claimant’s total disability benefits as of the date of his Reinstatement Petition, rather than the initial December 16, 2014 modification date; (2) Whether the WCJ erred in applying Act 111 to an injury occurring before its effective date; and (3) Whether Act 111 constitutes an unconstitutional delegation of the General Assembly’s legislative authority?
Background:
In 2009, Claimant suffered a work-related injury to his neck when he tripped and fell. Nevertheless, he continued working until January 7, 2010, when, in the course of his employment, he fell into a sewer hole. On May 6, 2015, the WCJ granted Employer’s Modification Petition to reduce Claimant’s indemnity benefits to partial disability as of December 16, 2014, after an IRE of Claimant found his whole-person impairment rating to be less than 50%. On May 13, 2021, Claimant filed a Reinstatement Petition seeking reinstatement of total disability benefits and status based upon the Protz I and II decisions. Additionally, following a 2022 IRE, Employer filed a Modification Petition seeking to have Claimant’s status and benefits modified to partial disability once again, because Claimant’s whole-person impairment rating was found to be 5%. The WCJ granted Employer’s Modification Petition reducing Claimant’s benefits to partial disability as of September 2, 2022 and ongoing.
Holding:
However, these issues were easily disposed of by the Court, which has rejected identical arguments in the past. First, the WCJ correctly reinstated total disability benefits as of the date of the filing of Claimant’s Reinstatement Petition, relying on this Court’s decision in Whitfield. A claimant who litigates a modification petition based on an IRE performed under Act 57 is entitled to seek reinstatement to total disability benefits even though the claimant did not challenge the constitutionality of Section 306(a.2) during that litigation. However, claimant bears the burden of proving continuing disability, which, if met, only entitles a claimant to reinstatement as of the date the reinstatement petition was filed. The WCJ did not err by reinstating Claimant’s benefits as of the date of his Reinstatement Petition, rather than his original modification date. Second, the Court’s decision in Rose Corp. makes clear that Act 111 applies retroactively to previous weeks of compensation paid. Third, Act 111 does not violate the non-delegation doctrine.
Affirmed.
Michelle D. Epps v. City Of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 8, 2024
Issue:
Whether Act 111 is unconstitutional because the claimant’s 2010 injury occurred prior to its October 2018 effective date and it retroactively negates the claimant’s previously vested rights in continuing benefits?
Background:
Claimant sustained a disabling work-related injury to her left knee on January 26, 2010. On December 16, 2021, Claimant underwent an IRE which determined that Claimant had reached maximum medical improvement (MMI) and had an impairment rating of 1%. Employer filed a modification petition based on the IRE. The WCJ granted the petition.
Holding:
This Court has concluded that the adjustment in Act 111 cured the infirmity in the prior IRE provisions because the legislature may adopt as its own a particular set of standards which are already in existence at the time of adoption without violating non-delegation principles. As such, Claimant’s constitutional challenges to Act 111 are meritless.
Affirmed.
JUDICIAL DISCRETION – REVIEWING STIPULATIONS
VNA Of St. Luke’s Home Health/Hospice v. Elizabeth Ortiz (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: July 23, 2024
Issue:
Whether Employer’s request to set aside the stipulation should have been granted because the nature of Claimant’s work injury was materially incorrect?
Background:
Claimant initially filed a claim for a November 2017 work injury in the nature of a left shoulder strain, therein asserting that she fell while attempting to sit on a chair and injured her left shoulder. In May 2018, Employer issued an NTCP accepting a left shoulder strain. In June 2019, Claimant filed a claim petition seeking to expand the work injury and asserting a left rotator cuff tear and biceps tendon injury. In September 2019, the WCJ circulated an order adopting a stipulation of facts wherein the parties agreed that the work injury had caused a left shoulder injury that required a rotator cuff repair and a biceps tenodesis. Employer filed two modification petitions asserting that Claimant had failed to respond in good faith to modified-duty job offers. While litigating the modification petitions, medical records newly disclosed to Employer demonstrated that the left rotator cuff tear and biceps injury preexisted the November 2017 work accident. In fact, Claimant repeatedly falsely denied having suffered, and being treated for, the stipulated injuries before the work accident. Consequently, Employer sought to set aside the stipulation of facts attributing those injuries to the work accident. The WCJ granted Employer’s modification petitions, but disability benefits were reinstated effective the date Claimant underwent additional work-related left shoulder surgery. The WCJ denied Employer’s request to set aside the September 2019 stipulation of facts and concluded that Claimant’s litigation costs were not reimbursable. The Board affirmed.
Holdings:
As found by the WCJ, Claimant’s denials were false. The Court held that this case boiled down to how much an employer is expected to do by way of investigation and within what timeframe when a claimant misrepresents her condition and/or the existence of prior injuries. Good faith on the part of both parties is necessary to fulfill and advance the humanitarian purpose of the Act. Employer became aware that Claimant had a medically significant preexisting injury to the same area and acted on that knowledge. Given the time that ensued between Employer’s March 2021 receipt of documentation and Dr. Rubenstein’s second deposition in July 2021, we conclude that Employer did not unduly delay in making its request to set aside the stipulation. To the extent to which Employer should have conducted a more vigorous investigation before entering the stipulation, the Court noted that Claimant time and again misled Employer, her own surgeon, and the workers’ compensation tribunal as to pre-existing left shoulder issues. The Court felt it noteworthy that Employer was not seeking to set aside its original acceptance of Claimant’s work injury. It was disingenuous for Claimant to attempt shifting the blame for her repeated misrepresentations when such falsification had the practical effect of complicating the proceedings. Claimant was not successful in defending against the modification petitions. Claimant essentially accrued litigation costs solely in defending the modification petitions. Consequently, she did not incur litigation costs on any issue on which she might be deemed to have prevailed. The Court affirmed the Board’s order granting Employer’s modification petitions and denying Claimant’s request for litigation cost reimbursement; and reversed the Board’s order denying Employer’s request to set aside the stipulation of facts.
Affirmed in part, Reversed, in part.
JUDICAL DISCRETION – HEARINGS
Becky A. Tarawallie v. Magee Memorial Hospital (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: July 22, 2024
Issues:
Whether Claimant’s counsel failed to submit evidence; the WCJ violated her constitutional right to a fair hearing by rendering a decision without evidence; and the WCJ erred in allowing Employer’s surveillance video?
Background:
Claimant worked as a Certified Nurse Assistant (CNA) for Employer. On November 4, 2020, Claimant slipped and fell on blue cheese dressing that had spilled on the floor at her workplace. Claimant filed a Claim Petition under the Act alleging she sustained a low back strain, disc herniations, and a right hip strain because of her fall. Employer issued a Temporary Notice of Compensation Payable (NCP) and then an Amended NCP acknowledging Claimant sustained a work injury in the form of right upper arm and right hip contusions. In January 2021, Employer issued a Notice of Workers’ Compensation Denial (Denial), a Notice Stopping Temporary Compensation (NSTC), and a medical-only NCP. In late 2021, Employer filed a Termination Petition alleging Claimant was fully recovered as of December 1, 2021. The WCJ concluded Claimant had fully recovered from the work injury. Claimant appealed to the Board, and the Board affirmed.
Holding:
In a Termination Petition, the employer bears the burden of establishing the work injury has fully ceased. In a case where the claimant complains of continued pain, an employer meets this burden when its medical expert unequivocally testifies the claimant is fully recovered, the claimant can return to work without restrictions, and there are no objective findings which either substantiate the claims of pain or connect them to the work injury. The WCJ found Claimant did not sustain her burden of establishing a continuing injury entitling her to further indemnity benefits and there was substantial evidence to support this finding. Further, Employer’s expert testified that his opinion, within a reasonable degree of medical certainty, was Claimant had fully recovered as of the date of the IME and could return to work as a CNA without restrictions. Based on his “objectively normal physical examination” of Claimant, he opined Claimant had fully recovered from her injury. The WCJ considered this evidence and found Employer’s expert credible and convincing. Further, Claimant generally challenges the video surveillance footage. She does not argue it was inadmissible but argues the WCJ did not afford it the correct weight. Determinations of evidentiary weight are within the WCJ’s authority. Further, regarding Claimant’s constitutional challenges to the WCJ Decision, Claimant had the opportunity to testify and present evidence at multiple hearings before the WCJ. Claimant did not establish the WCJ precluded her from doing so. Therefore, Claimant failed to establish her constitutional rights were violated in any way. Finally, the effective assistance of counsel is not constitutionally mandated in the workers’ compensation context. Claimant failed to establish her counsel’s failure to submit certain evidence created manifest injustice, deprived her of the only means to meet her burden of proof, or otherwise rose to the level of just cause necessary to merit a rehearing. For the foregoing reasons, the WCJ’s findings are supported by substantial evidence, he committed no error of law or violation of Claimant’s constitutional rights, and the Board properly affirmed the WCJ Decision.
Affirmed.
Janelle Newsome v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 15, 2024
Issue:
Whether the Board erred in affirming the WCJ’s decision to grant Employer’s modification/review petition when the WCJ capriciously disregarded critical and undisputed facts about the amount of the subrogation lien; and whether the Board erred in affirming the WCJ’s decision to grant Employer’s modification/review petition when the WCJ failed to apply equitable principles?
Background:
Claimant petitions for review of the decision of the Workers’ Compensation (WC) Appeal Board (Board) that affirmed the decision of a Workers’ Compensation Judge (WCJ) granting the modification petition and review petition (modification/review petition) filed by the City of Philadelphia (Employer). Claimant was injured in 2016 while she was employed as a police officer with Employer when a construction sign hit Claimant on the head. Claimant filed a third-party lawsuit against the contractors responsible for the construction site where the sign that struck Claimant was stored, which resulted in a settlement in May 2020, in the amount of $675,000. The WCJ found that Employer has a net subrogation lien of $45,535.73. The WCJ directed Claimant to release from escrow by Attorney Hartshorn the amount of $14,098.77, and to further pay Employer $31,431.71, for a total of $45,530.48 as satisfaction of the net subrogation lien. The WCJ concluded that Employer met its burden and granted the modification/review petition. Claimant appealed to the Board, which affirmed.
Holding:
The WCJ is not required to accept even uncontradicted testimony. Where there is substantial evidence to support an agency’s factual findings, and those findings in turn support conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence. The Court rejected Claimant’s argument that the WCJ capriciously disregarded the testimony as to the amount of the subrogation lien. The WCJ summarized in detail this testimony, as well as documentary evidence regarding the settlement of Claimant’s third-party lawsuit. Consideration and rejection of testimony, which is what occurred here, does not constitute capricious disregard. The Court also rejected Claimant’s argument that her subrogation lien should be limited by equitable considerations, when she relied on an incorrect figure provided by Claims Adjuster. There is no dispute that Employer here made a unilateral mistake in its initial calculation of the subrogation lien, but there is also no evidence of fraud, duress, or bad faith.
Affirmed.
Amazon.Com Services, LLC v. Melissa A. Snyder, et al. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 2, 2024
Issue:
Whether the WCJ capriciously disregarded substantial competent evidence and relied on legally incompetent medical testimony regarding causation?
Background:
Claimant worked for Employer as a fulfillment center picker. While lifting a tote in the course of her job duties, she experienced a sharp pain in her right shoulder. She immediately reported this to her supervisor. Claimant returned to work with restrictions for one day, December 27, 2020, but she did not return because she did not want to violate the handbook for taking medications while in the building. Claimant has not worked since then. Claimant filed a claim petition alleging that she sustained a work-related injury on November 19, 2020, in the nature of a right rotator cuff tear and right shoulder strain/sprain. The next day, Employer issued a Notice of Temporary Compensation Payable (NTCP), acknowledging that Claimant sustained a work injury on November 19, 2020, in the nature of “multiple body parts strain or tear.” On February 12, 2021, Employer issued an amended NTCP that did not change the description of the injury but indicated that Claimant’s injury was medical only. A few days later, Employer issued a Notice Stopping Temporary Compensation and a Notice of Workers’ Compensation Denial, asserting that Claimant did not sustain a work-related injury but rather aggravated a preexisting condition. The WCJ granted Claimant’s claim petition. Employer appealed to the Board and the Board affirmed.
Holding:
The WCJ’s findings are supported by substantial evidence of record. The WCJ did not capriciously ignore relevant competent evidence in rendering his decision. Rather, the WCJ assessed the conflicting medical testimony and found Claimant’s medical witnesses to be more credible regarding causation. Further, the competency of evidence is a question of law fully subject to appellate review. A medical expert’s opinion is not rendered incompetent unless it is solely based on inaccurate or false information. The opinion of a medical expert must be viewed as a whole, and even inaccurate information will not render the opinion incompetent unless it is dependent on those inaccuracies. The fact that a medical expert does not have all of a claimant’s medical records goes to the weight given the expert’s testimony, not its competency. Employer’s argument that Claimant’s medical experts rendered incompetent opinions is without merit. First, the medical expert was aware of Claimant’s pre-existing injury, and he reviewed the pre-injury office note. His opinion was not predicated on his ignorance about Claimant’s 2019 injury. Accordingly, the medical opinions were not based solely on inaccurate or false information. The WCJ did not err in granting Claimant’s claim petition and denying Employer’s joinder petition. The WCJ’s findings were supported by substantial evidence and were not the result of capriciously disregarding substantial evidence. Claimant’s expert medical testimony was legally competent, and thus, the WCJ acted within his discretion in weighing the testimony.
Affirmed.
Timothy J. Perkins v. Consolidated Pa Coal, et al. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 17, 2024
Issue:
Whether the WCJ’s decision is supported by substantial, competent evidence?
Background:
Claimant worked as a coal miner for Employer when he sustained a work injury to his left foot on February 2, 2018. Employer issued a Notice of Compensation Payable (NCP) accepting liability for the work injury, which it described as a crushing injury to the left foot. Claimant’s third and fourth toes and part of his second toe were amputated the day he sustained the work injury. Employer suspended Claimant’s wage loss benefits on October 15, 2018, when Claimant returned to work in a light-duty capacity. Claimant suffered a recurrence of his work injury on October 19, 2018, at which time Employer reinstated Claimant’s wage loss benefits. Employer suspended Claimant’s wage loss benefits a second time after Claimant returned to work on January 14, 2019. Claimant’s work injury recurred on June 1, 2019, resulting in a second reinstatement of wage loss benefits. Claimant underwent an IME which opined that Claimant’s injury had resolved into a specific loss when his toes were amputated on February 2, 2018. Employer further alleged that, because Claimant had not suffered any disability separate and apart from the specific loss, he was no longer entitled to disability benefits. The WCJ concluded that Employer has met its burden of proving that Claimant’s injury has resolved to the loss of the third and fourth toes and half of the second toe of the left foot as of October 13, 2020. Consequently, the WCJ determined that Claimant was entitled to 40 weeks of specific loss benefits, with a credit to Employer for benefits paid after October 13, 2020. The WCJ noted that he credited Claimant’s testimony in part but rejected it to the extent it was offered to prove that he has knee and hip problems that are related to the work injury, or that there are injuries separate and apart from the specific loss, as these are not a separate injury to another body part but are a consequence of the specific loss. Claimant appealed to the Board, which affirmed.
Holding:
An employer seeking to modify a claimant’s benefits on the ground that the claimant’s disability has changed carries the burden of proving that change by way of medical evidence. If the employer seeks modification to establish a specific loss, it must show that the injured party has suffered the permanent loss of use of the injured member for all practical intents and purposes. While medical evidence is necessary, the claimant’s testimony and the WCJ’s own observations are relevant and may constitute further support of a finding of specific loss. Under the schedule of compensation for specific losses provided in Section 306(c) of the Act, such losses result in a total payment equal to 2/3 of 40 weeks of Claimant’s wages. On appeal, Claimant did not dispute the WCJ’s determinations regarding his third or fourth toes but argues only that there is no medical evidence to support the conclusion that he permanently lost the use of one half of his second toe. As stated above, a claimant’s own testimony can lend support to a factfinder’s conclusion that an injury has resolved into a specific loss. Thus, we see no error in the WCJ’s conclusion. The WCJ’s conclusion of the functional loss of one half of Claimant’s second toe was not the product of an improper medical determination. Rather, it is the logical result of the WCJ’s acceptance of Claimant’s own testimony. As explained above, the WCJ is free to consider a claimant’s fact testimony when reaching the conclusion that a specific loss has occurred. Furthermore, the crediting of a medical witness’s testimony does not commit a WCJ to an adoption of that witness’s statements in their entirety.
Affirmed.
COMPROMISE AND RELESE AGREEMENT
Deborah J. Clarius v. Rite Aid Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 19, 2024
Issue:
Whether the C & R bars and settles the claimant’s claim regarding her 2018 left knee injury?
Background:
Represented by counsel, Claimant entered into a Compromise and Release (C & R) under the Workers’ Compensation Act with Employer on February 6, 2020. In September 2022, Claimant filed a Review Medical Petition alleging medical bills for a 2018 left knee injury remained unpaid. Claimant alleges two separate injuries with Employer: a 2018 left knee injury and a 2019 right knee injury. She argued the C & R applied to the 2019 right knee injury only. Further, Claimant alleges her counsel and the insurance companies involved were different for each injury. The WCJ dismissed Claimant’s Review Medical Petition based on his finding the C & R prevented Claimant from pursuing any additional claims against Employer. The Board affirmed.
Holding:
Section 449 of the Act governs C & R agreements in workers’ compensation claims, and it provides a C & R is not valid and binding until approved by a WCJ. A WCJ is not to approve a C & R without first determining whether a claimant understands its full legal significance. It is well established that once approved, a valid C & R agreement is final, conclusive, and binding on the parties. Courts may rescind a C & R agreement based on a clear showing of fraud, deception, duress, or mutual mistake. The test to set aside a C & R agreement on the basis of mutual mistake is even more stringent. The party seeking to set aside the agreement must prove both parties were mistaken as to a present, material fact that existed at the time the C & R agreement was executed. Evidence to demonstrate a mutual mistake must be clear, precise, and definitive. The WCJ explained to Claimant that her only role was to make sure Claimant understood the legal significance of what she was entering into by signing the C & R agreement. The WCJ then asked Claimant whether she understood, and Claimant responded: “Yes, I do.” In the present matter, the WCJ pointed to paragraph four of the C & R which stated it “resolve[d] all claims” including those claims “which Claimant may have sustained while working for Employer.” Given the lack of evidence in the record to support her assertions, there was no way to determine Employer’s intent. Claimant failed to offer any support for her argument based upon mutual mistake of fact at the time she and Employer executed the C & R. The WCJ’s findings are supported by substantial evidence, the WCJ committed no error of law or violation of Claimant’s constitutional rights, and the Board properly affirmed the WCJ Decision.
Affirmed.
RES JUDICATA AND COLLATERAL ESTOPPEL
Jesse R. May v. Dana Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 9, 2024
Issue:
Whether the Board erred in affirming the WCJ’s decision that this matter was barred by principles of res judicata and collateral estoppel?
Background:
Claimant sustained four work-related injuries: on January 29, 1990, September 15, 1990, October 8, 1993, and March 11, 1999. The nature and extent of those injuries was not at issue. In 2003, with the assistance of counsel, Claimant executed four compromise and release agreements (C&R Agreements). Claimant agreed to resolve wage loss benefits for each work-related injury, and Claimant reserved the right to receive continuing payments from Employer for medical expenses for each injury except for the 1993 injury. In 2018, Claimant filed several petitions, asserting that Employer had failed to pay certain medical expenses, generally challenging the validity of the C&R Agreements, but specifically asserting that Employer had fraudulently induced Claimant into the agreement ending his medical benefits for the 1993 injury. The WCJ denied the petitions, finding no evidence of fraud and finding further that Claimant fully understood the legal significance of the C&R Agreements. The Board and Commonwealth Court affirmed. Claimant did not seek permission to appeal that decision to the PA Supreme Court, but rather sought a rehearing with the Board, asserting newly discovered evidence including a statement from Employer that purported to acknowledge its ongoing obligation to pay medical expenses related to the 1993 injury. The Board denied a rehearing and Claimant again appealed to the Commonwealth Court, which affirmed. This current matter arose in April 2022, when Claimant again filed several petitions challenging the validity of the C&R Agreements. Employer filed a motion to dismiss asserting that Claimant’s claim had been previously litigated and decided. The WCJ granted the Employer’s motion. The Board affirmed.
Holding:
Claimant asserted that res judicata and collateral estoppel did not apply because Employer concealed evidence from Claimant, which prevented him from fully and fairly litigating the validity of the Agreements. According to Claimant, the First Hearing Filing clearly states Employer’s responsibility for ongoing medical payments related to his 1993 injury. The elements of both res judicata and collateral estoppel have been met. Further, the Claimant was not deprived of a full and fair opportunity to litigate the nature and extent of his work-related injuries and the validity of the C&R Agreements. Claimant does not meaningfully dispute that he has previously litigated, to final resolution, the validity of the C&R Agreements with Employer. Rather, Claimant suggests that he has uncovered new evidence, deceptively and fraudulently concealed by Employer, that should alter our analysis of his claim. An approved compromise and release agreement can be set aside upon a clear showing of fraud, deception, duress, or mutual mistake. Here, the WCJ reviewed Claimant’s evidence and, after thoughtful consideration, determined that it has absolutely no probative value on the question of whether Claimant was directly or indirectly defrauded into signing the settlement agreements. The Commonwealth Court agreed.
Affirmed.
Kenneth P. Marinack v. City of Pittsburgh (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: July 12, 2024
Issue:
Whether the WCJ Correctly Precluded Evidence of Additional Injuries and Reinstated Benefits?
Background:
Claimant was injured on May 21, 2004, when he fell in a stairwell while pulling down a ceiling in a burning building. Employer issued a Notice of Compensation Payable (NCP) describing the accepted injury as a left shoulder rotator cuff tear and an aggravation of degenerative disc disease in the low back. In an earlier proceeding the WCJ denied Claimant’s review petition, as he concluded that Claimant presented insufficient evidence to warrant the further amendment of the injury description. The WCJ also held that because Claimant stated that he was engaged in self-employment projects but did not provide Employer with adequate information to ascertain his earnings, suspension of Claimant’s benefits was appropriate.
Holding:
Claimant challenges the Board’s application of technical res judicata to his Reinstatement Petition and maintains that he is entitled to a reinstatement of his benefits as of March 17, 2011, the date he underwent surgery to alleviate his worsening work-related condition. While the alleged date of onset of Claimant’s worsening condition necessitating the March 2011 back surgery was not adjudicated in the previous litigation, given that Claimant was well aware of the worsening of his low back injury during the prior proceeding, technical res judicata bars his claim of a worsening condition, as it was a matter that should have been litigated in the earlier proceeding. Reinstatement of wage loss benefits in this circumstance was in error. Claimant did not allege that he was entitled to a reinstatement as he would now present adequate and credible information as to self-employment earnings so as to cure his suspension. He never asserted that his “suspended” benefits should be “reinstated” due to the return of the LIBC forms. Similarly, Claimant never argued that the return of the LIBC-760 or his testimony “cured” the prior basis of suspension. Claimant’s benefits were not in a suspension status pursuant to any LIBC-762 (“Notice of Suspension for Failure to Return LIBC-760”). Rather, the first WCJ suspended Claimant’s benefits because he did not believe Claimant’s testimony that he only earned $1,500 from May 2009 to December 2009. Based on all the evidence, he thought Claimant failed to tell the truth about earning only $1,500 during that period, and that in those circumstances where Claimant’s earnings cannot be determined, a suspension was justified. Simply returning a new LIBC-760 to Employer on November 20, 2018, nine years later, which contained the same exact information that WCJ Bloom had previously rejected as not credible, did not cure anything. Thus, the provisions of the Act cited by the Board in support of the original remand – which require reinstatement upon return of the LIBC-760, without further analysis as to the credibility of the averments therein – were inapplicable. Additionally, Claimant never raised this as a basis for seeking reinstatement of benefits. The Court reversed the order of the Board, and reinstated WCJ Crilley’s June 12, 2019 decision denying Claimant’s reinstatement petition.
Reversed
APPEALS – TIMELINESS
Peter Oldfield v. Popcorn Alley, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 2, 2024
Issue:
Whether the appeal should be quashed as untimely?
Background:
On May 28, 2021, Claimant filed a claim petition alleging that he sustained a work injury. The WCJ circulated a decision on August 10, 2022, denying and dismissing Claimant’s claim petitions. Claimant filed his appeal with the Board on August 31, 2022, 21 days after the WCJ circulated his decision. Employer filed a Motion to Quash Claimant’s Appeal, arguing that Claimant’s appeal was untimely. The Board granted Employer’s Motion to Quash.
Holding:
A late appeal (nunc pro tunc) will be allowed where the appeal was untimely filed due to fraud or a breakdown in the administrative process. Nunc pro tunc relief is also appropriate where an appeal is untimely due to non-negligent circumstances, as they relate to the petitioner or the petitioner’s counsel, where the petitioner’s notice of appeal was filed shortly after the expiration date, and where the respondent is not prejudiced by the delay. Claimant filed his appeal on August 31, 2022, one day late. Claimant’s appeal to this Court lacked any justification or excuse for the untimely appeal. Claimant also attacks the WCJ’s credibility determinations, and the weight given to the evidence presented. The WCJ, as factfinder, has exclusive authority over the credibility of witnesses and the weight given to the evidence. In the absence of circumstances warranting nunc pro tunc relief, the Board correctly granted Employer’s Motion to Quash.
Affirmed.
PETITION FOR ALLOWANCE OF APPEAL FROM THE ORDER OF THE SUPERIOR COURT – GRANTED
John Brown V. George Gaydos, An Individual, T/D/B/A Gaydos Construction
AND NOW, this 23rd day of July 2024, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below. Allocatur is DENIED as to all remaining issues.
Where the record is clear that the plaintiff and defendant were employed by the same company and the plaintiff’s injury was compensable under the Worker’s Compensation Act, must the court consider whether the defendant was working in the course of his performance of duties for the employer to determine if the defendant is entitled to immunity as a co-employee?
PENNSYLVANIA LEGISLATIVE REVIEW
As of July 31, 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 the 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
07/01/2024 – 07/31/2024
WORKERS’ COMPENSATION ACT EXCLUSIVITY PROVISION
Tejada De Tapia v. 74 Indus. Inc.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
-
- A-2643-21; 2024 WL 3384831
Decided: 07/12/2024
Background:
Sylvia Melania Tejada de Tapia (Plaintiff) was injured while working for 74 Industries (Employer). She worked as a sewing machine operator and was injured when she was injured by an insect. The plaintiff alleged that the packages of fabric were often infested with insects causing the employees to be frequently bit and stung. Her insect bite caused an infection, and she was hospitalized as a result. Plaintiff filed a workers’ compensation claim against Employer, which was settled via a Section 20 Settlement.
New Jersey Manufacturers Insurance (NJM) provided workers’ compensation and employers liability insurance to Employer. Prior to settlement of the workers’ compensation claim, Plaintiff filed an intentional tort claim against Employer and Employer filed a third-party complaint against NJM seeking coverage under the policy for the intentional tort claim. NJM denied coverage and moved to dismiss the claim. The Motion to Dismiss was granted for failure to state a claim. The court looked at the Workers’ Compensation Act’s exclusive remedy provision and the intentional wrong exception. The court found that the plaintiff pled causes of action for intentional wrongs and that the insurance policy excludes intentional wrongs from coverage. The court found no duty to defend when the action was not covered by the policy.
Holding:
Employer argued that NJM had a duty defend for three reasons: (1) representation in the underlying workers’ compensation claim triggered NJM’s duty to defend, (2) the cited exclusions were ambiguous and required NJM to provide coverage, and (3) NJM had a duty to defend as a matter of public policy.
The Section 20 Settlement hearing record did not mention the plaintiff’s pending intentional-wrong suit in the Law Division. The plaintiff only consented to release all claims arising out of the claim petition filed in workers’ compensation court. This cannot include claims for intentional wrongs. Thus, this argument was rejected.
The C5 exclusion policy, which included “substantially certain” language was unambiguous as to its exclusion for coverage for intentional wrongs. The C7 endorsement cannot override the C5 exclusion for intentional wrongs.
The argument that the duty to defend is supported by public policy was also rejected as the court has consistently held that exclusions for intentional wrongs in insurance policies are legally valid.
There was no basis to find that NJM had a duty to defend or indemnify Employer against the plaintiff’s intentional wrong claims.
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: June 28, 2024 – Passed Assembly (Passed Both Houses) (54-20-0)
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