PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
09/1/2024 – 09/30/2024
REINSTATEMENT AND REVIEW PETITIONS
Pennsylvania Liquor Control Board v. Amato Berardi (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 20, 2024
Issue:
Whether the Board erred affirming the WCJ’s decision to grant the Reinstatement Petition, Review and Penalty Petitions?
Background:
Claimant tripped over a cement barrier and fell on his right knee and right elbow when returning to work from lunch. Claimant continued to work for a few weeks with worsening right knee pain. Employer placed Claimant on modified duty. Even though no doctor advised him against working, Claimant stopped working after a few more weeks. Claimant underwent surgery on his right knee. Claimant then returned to work in a modified-duty capacity, pursuant to a release signed by his surgeon. On August 3, 2020, Employer sent Claimant a letter indicating he was entitled to a period of six months of modified-duty employment, which would expire on August 25, 2020. The letter explained Claimant would not be allowed to work beyond August 25, 2020, unless his physician released him to perform full duties by that date. Claimant’s physician did not release him to full duty, so Employer terminated Claimant’s employment on August 25, 2020. There were many petitions filed. Eventually, the WCJ granted the Reinstatement, Review, and Penalty Petitions. The Board affirmed.
Holding:
The Board did not err in affirming the WCJ’s decision to grant the Reinstatement Petition. Claimant was on modified-duty employment at the time Employer terminated his position so Claimant was entitled to a presumption that his loss of earning power was caused by his work injury. Additionally, substantial evidence supported the WCJ’s decision to grant the Review Petition. Claimant’s expert’s testimony was based upon his review of Claimant’s medical records, rendering his opinions competent. As for the penalty petitions, Employer became liable to pay Claimant benefits as of the date the Board denied Employer’s request for supersedeas in its appeal of the WCJ’s decision granting the Claim Petition. Employer gave no specific reason for these payments being late. Further, Claimant introduced into the record the actual bill and procedure note. Employer’s contest was unreasonable. Employer’s legal arguments relating to Claimant’s alleged premature filing of the Reinstatement Petition lacked merit. The only medical evidence Employer entered into the record was testimony concerning Claimant’s Review Petition and the expansion of his injury to include a left knee. Employer produced no evidence that Claimant could have worked his full duty job when they terminated his employment on August 25, 2020. Because Claimant had the presumption that his wage loss after that point was work-related, as the result of working modified duty, it was Employer’s burden to prove the wage loss was from another nonwork-related cause. Because Employer failed to produce any evidence that, if accepted, would have met its burden, its contest was unreasonable.
Affirmed.
SUBROGATION
American General Life Insurance Company v. Joseph M. Grosso (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 26, 2024
Issues:
Whether the Board erred by limiting the amount and scope and Employer’s subrogation lien?
Background:
American General Life Insurance Company (Employer) petitioned for review from the decision and order of the Workers’ Compensation Appeal Board (Board). In the July 2022 Board Opinion, the Board affirmed a 2021 order of a Workers’ Compensation Judge (WCJ), in which the WCJ granted Employer’s Modification Petition seeking enforcement of its subrogation rights but did not award Employer the full amount it sought. The WCJ concluded that Employer waived the right to recover any additional funds by virtue of the C&R Agreement entered into by Employer years after the Third-Party Settlement. The Board affirmed.
Holding:
The purpose of subrogation is threefold: it prevents double recovery for the same injury; it relieves the employer of liability occasioned by the negligence of a third party; and it prevents a third party from escaping liability for his negligence. By its terms, subrogation “admits no express exceptions, equitable or otherwise.” The employer’s subrogation rights are statutorily absolute and can be abrogated only by choice. To the extent an employer’s subrogation rights may be implicitly waived, such an implicit waiver of rights must be supported by evidence of employer bad faith or dereliction of duty. The instant matter involves no express waiver of Employer’s subrogation rights and no evidence of bad faith or dereliction of duty to support an implicit waiver of those rights. The evidence of record indicates that Employer did not intend to waive its Section 319 subrogation rights. The Modification Petition explicitly stated that Employer was seeking subrogation pursuant to Section 319 of the Act and made explicit reference to the Third-Party Settlement in so stating. Likewise, the C&R Agreement specifically preserved Employer’s subrogation rights in Paragraph 11 and in the Addendum, both of which expressly indicated that the C&R Agreement was not intended to have any effect on the instant litigation concerning Employer’s claimed subrogation lien. By concluding that Employer implicitly waived its statutory subrogation rights by failing to inform the WCJ or Claimant that it intended to pursue those rights, the WCJ fashioned an impermissible equitable exception to Employer’s automatic, absolute right to subrogation. The WCJ’s suggestion that Employer should have stated on the record at the hearing that it intended to seek satisfaction of its subrogation lien as against the Third-Party Settlement placed a requirement on Employer that does not exist in the Act and created an impermissible equitable exception to Employer’s Section 319 subrogation rights. The WCJ erred by determining that Employer waived its claim for additional recovery based on the Third-Party Settlement in the later C&R Agreement and the instant proceedings.
REVERSED and the matter is REMANDED.
ATTORNEY FEES
Gregory Elder v. Crane Resistoflex (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: September 11, 2024
Issue:
Whether the WCJ erred in denying the Counsel fee on medical bills?
Background:
Claimant, through his counsel, petitions for review of a decision of the Workers’ Compensation Appeal Board (Board) affirming a workers’ compensation judge’s (WCJ) decision denying the contingency fee agreement between Claimant and Counsel regarding Counsel’s entitlement to 20% of Claimant’s medical benefits, while still approving Counsel’s share of indemnity benefits. The WCJ reasoned that, notwithstanding Claimant’s intention to enter into the agreement, Claimant did not sufficiently understand its “breadth.”
Holding:
The Court reversed and remanded the matter to the Board for further remand to the WCJ. The counsel fee should be calculated against the entire award, without regard for whether the award is for medical or indemnity compensation. Further, the terms of the fee agreement govern, and it is incumbent upon the claimant to establish that the parties intended the counsel fee be applied to the entire award, including medical compensation. By the terms of the WCJ’s own decision, Claimant testified that he understood the fee agreement related to both medical and indemnity. The WCJ improperly reasoned that Claimant’s understanding was insufficient because there was no testimony indicating whether Claimant understood that he may be liable to his medical providers for any future unpaid portion of his medical expenses relating to his compensable injury. As a 20% contingency fee for indemnity benefits is per se reasonable, and as the balance billing prohibition under Section 306(f.1)(7) of the Act would protect Claimant in such a case, the WCJ erred in determining that Claimant’s testimony was insufficient to warrant the approval of the fee agreement as to both medical and indemnity benefits awarded in this matter.
REVERSED. This matter is REMANDED.
UTILIZATION REVIEW
Michael Perry v. Mid Atlantic Hose Center, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 17, 2024
Issues:
Whether there were deficiencies in the UR process such that the UR determination was void ab initio and whether the WCJ erred in denying Claimant’s penalty petition?
Background:
Claimant sustained an injury described as an upper neck and back strain during the course of his employment with Employer. Employer requested a utilization review (UR) of treatment provided to Claimant by various providers and determinations were rendered. Claimant and Employer filed petitions for review the UR Determinations. Claimant filed a penalty petition alleging Employer’s failure to pay for reasonable and necessary medical treatment. Based on his review of the evidence and testimony presented by the parties, the WCJ found Claimant credible as to his ongoing symptoms related to his work injury. The WCJ concluded that Employer sustained its burden of proving that, as of June 22, 2021, the treatment was neither reasonable nor necessary; that Claimant failed to sustain his burden of proving that Employer wrongfully failed to pay medical bills or wrongfully denied reimbursement for out-of-pocket expenses; and that Claimant failed to sustain his burden of proving a violation of the Act.
Holding:
Claimant argued that the UR Request forms in this action were not properly completed because they failed to list all treating physicians over the entirety of Claimant’s claim. Contrary to the claimant’s arguments, the Hughes Court did not agree that the failure to list all of a claimant’s other treatment providers on the UR request form made it impossible for the reviewing doctor to obtain and review other providers’ records. Further, the Hughes Court disagreed with the claimant’s argument that a URO’s failure to obtain medical records from his earlier treating doctors rendered the UR determinations inadmissible and/or incompetent to support a finding that the treatment was not reasonable or necessary. The absence of other providers’ medical records, if any, goes to the WCJ’s weighing of the evidence, which is beyond this Court’s scope of review. Each reviewing doctor listed the records reviewed; documented contacts/attempted contacts with the provider under review; and made findings and conclusions, providing a detailed explanation of the reasons for the conclusions reached. Therefore, the record was devoid of any facts supporting Claimant’s assertion that the UR Reports in this case are defective. Finally, it cannot be said that the WCJ failed to issue a reasoned decision. Claimant’s argument appears to be a challenge to the WCJ’s rationale in rejecting certain testimony and evidence. The WCJ is the fact finder, and it is solely for the WCJ to assess credibility and resolve conflicts in the evidence. As for the Claimant’s penalty petition, which asserted that Employer failed to pay specific medical bills related to reasonable and necessary medical treatment, the WCJ determined that while Employer had paid some of the disputed bills, others were not paid because they were unsupported by documentation showing that the treatment was related to Claimant’s work injury; thus, the WCJ concluded that Claimant failed to sustain his burden. In this case, the record does not reflect that Claimant took any steps to have Employer comply with the subpoena for the relevant requested records; rather, Claimant skipped the procedures set forth in Section 436 of the Act and sought to have the WCJ draw an adverse inference. There were no deficiencies in the UR process, the Employer presented competent evidence, and the WCJ issued a reasoned decision. Therefore, Claimant’s penalty petition was properly denied.
Affirmed.
JUDICIAL DISCRETION
Leonard Patrick v. Velocity Rail Solutions (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 12, 2024
Issue:
Whether the clamant suffers from a disabling work-related injury?
Background:
On January 25, 2022, Claimant filed a Claim Petition, alleging that he sustained a perforated eardrum and a loss of hearing in his right ear, secondary to noise at work. Claimant sought total disability benefits from December 1, 2019, and ongoing. The WCJ found Claimant’s testimony not credible to the extent that Claimant attributed his perforated right eardrum and related complaints to the alleged workplace noise trauma. Regardless of causation, the WCJ maintained that the issue of Claimant’s disability is far from clear. Claimant testified that balance issues prevented him from driving, but there are no complaints of balance issues documented in the Concentra clinic note. Following his visit to Concentra, Claimant was released to full activity and continued working full duty as a driver for Employer for a number of weeks before being “let go.” Further, during the course of her testimony, Claimant’s expert did not mention that Claimant complained of balance issues throughout his multiple contacts with her. Ultimately, the WCJ denied and dismissed Claimant’s Claim Petition. On appeal, the Board affirmed.
Holding:
The claimant bears the burden of proving all elements necessary to support an award in a claim proceeding. The claimant must also establish that the disability continues through the pendency of the claim petition proceedings. Where the causal relationship between the work incident and the disability is not obvious, unequivocal medical evidence is necessary to establish it. The pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. The Court agreed with the WCJ and Board that Claimant did not meet his burden to establish that he was entitled to disability benefits. Claimant’s testimony concerning the workplace noise trauma and his alleged disability were belied by his medical records. Claimant’s testimony is also contradicted. Based on these inconsistencies, the WCJ found Claimant’s testimony not credible. Claimant failed to present any competent or credible evidence supporting his assertions that the eardrum perforation was the result of a work-related incident.
Affirmed.
TERMINATION PETITION
Sandra Carter-Zimmitt v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Filed: September 10, 2024
Issues:
Whether the Employer established that Claimant had fully recovered from her work injury?
Background:
In 2018, Claimant was injured in the course and scope of her employment, sustaining contusions to her lower back and left wrist. In 2020 the WCJ expanded the description of Claimant’s injury. Employer filed a termination petition alleging that Claimant had fully recovered from her work injury. The WCJ granted Employer’s termination petition. Claimant appealed to the Board, arguing that the WCJ erred in terminating her benefits because Employer’s medical expert did not recognize the full extent of her work injuries, which rendered his opinion incompetent. The Board affirmed.
Holding:
This Court will not disturb a WCJ’s findings if there is substantial evidence in the record to support the findings. Substantial evidence supports the WCJ’s decision. A WCJ is under no obligation to accept the opinion of the treating physician over the opinion of an IME expert retained by the employer. Here, the WCJ found employer’s expert more credible than the claimant’s treating physician and fully explained the reasons for that determination. The Court rejected the Claimant’s argument that the WCJ erred in crediting employer’s expert’s testimony for the stated reason that he referred to his written reports in his testimony. The Board did not err in affirming the WCJ’s grant of Employer’s termination petition.
Affirmed.
PENNSYLVANIA LEGISLATIVE REVIEW
As of September 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]
House Bill 1632
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in interpretation and definitions, further providing for definitions; and, in liability and compensation, providing for compensation for post-traumatic stress injury.
Subject: Covering Post-Traumatic Stress Injuries under Worker’s Compensation for First Responders.
This bill seeks to amend the Worker’s Compensation Act to allow an eligible first responder who sustains a PTSI in the course and scope of employment and has received a PTSI diagnosis from a licensed medical or mental health professional, workers’ compensation benefits, if the claim is filed within three years of the date of PTSI diagnosis.
Last Action: Referred to LABOR AND INDUSTRY, May 28, 2024 [Senate]
NEW JERSEY WORKERS’ COMPENSATION
NEW JERSEY LEGISLATIVE UPDATE
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
Assembly Bill 4750
Expands certain employer reporting requirements to include entities that employ or contract with individuals for financial compensation, including ride-sharing and delivery technology platforms.
Last Action: September 19, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 2100
Provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks.
Last Action: September 19, 2024 – Reported out of Asm. Comm. With Amendments, and referred to Assembly Public Safety and Preparedness Committee