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CASE SUMMARIES 8/1/2023 – 8/31/2023

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES

8/1/2023 – 8/31/2023

 

NOTICE OF THE INJURY

 

The Hershey Company v. Shawn Woodhouse (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: August 3, 2023

Issue:

Whether the WCJ and the Board erred as a matter of law by concluding that Claimant provided timely, adequate, and/or proper notice of his alleged work injury within the 120- day time period established by Section 311 of the Act?

Background:

Claimant began working for Employer full time on May 8, 2017, at which time he had a previous history of diabetic neuropathy. Claimant developed a right diabetic foot ulcer in June 2017, for which his podiatrist instructed him to rest his foot, and prescribed gel, medicine, and a DARCO Boot (Boot). Employer did not permit Claimant to wear the Boot on the factory floor because he worked in the food industry or remain seated while working because his job duties required he be able to see and check on the machines. Thus, Claimant’s doctor placed him off work from June 13, 2017 to August 26, 2017, during which time Claimant worked at Verizon Wireless. On September 11, 2017, Claimant emailed Employer to inquire whether he could return to work with a full cast. He did not return to work at that time. On September 26, 2017, Claimant’s doctor released him to work with one restriction, that he wear regular shoes due to his diabetic foot ulcer and infected blister. Thereafter, Claimant returned to work. On November 6, 2017, Claimant passed out at work and was taken by ambulance to the Hershey Medical Center, where he was admitted. Claimant had emergency foot surgery and was awaiting doctor approval to return to work. Claimant returned to work on March 22, 2018, and the following month underwent a below-the-knee amputation of his right leg. Thereafter, he did not return to work. Claimant filed the Claim Petition, alleging therein that he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the- knee amputation of his right leg. Claimant asserted that the injury was caused by standing for long periods of time at work, bagging and wrapping product, and by not being able to use the medically prescribed Boot to protect his diabetic foot ulcer. Claimant did not seek disability benefits; rather, his claim was limited to specific loss benefits. Employer filed an answer denying that Claimant suffered a work injury and contending the Claim Petition was its first notice that Claimant was alleging he had suffered a work injury in 2017. The

WCJ granted Claimant’s Claim Petition and awarded Claimant specific loss benefits for the loss of his great toe and remaining toes of his right foot, but denied specific loss benefits for Claimant’s below-the-knee amputation. Claimant did meet his burden of proof that notice of his injury was timely given to Employer. Claimant and Employer appealed to the Board. The Board reversed the WCJ’s decision as to the denial of relief for Claimant’s below-the-knee amputation and affirmed the WCJ’s decision in all other respects.

Holding:

Section 311 of the Act specifies that unless the employer shall have knowledge of the occurrence of the injury, or unless the employee shall give notice thereof to the employer within 21 days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within 120 days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury in which the nature of the injury or its relationship to the employment is not known to the employee, the time for giving notice shall not begin to run until the employee knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. The claimant bears the burden of demonstrating that proper notice was given. Claimant knew of the alleged causal connection between his amputations and his work-related duties in November 2017, but did not provide notice to Employer until his Claim Petition was filed in December 2019. Claimant admitted that he suspected that his amputation was related to his job duties in 2017; however, he did not notify Employer because Employer never asked him about it. Given Claimant’s testimony, Section 311 of the Act required Claimant to provide Employer notice that his injury was work related within 120 days of November 7, 2017. Although Claimant informed employer in the January 2, 2018 email that he had emergency foot surgery in November 2017, he made no reference to that surgery being work related. Claimant did not notify Employer that his foot surgery was work related until he filed his Claim Petition in December 2019, well beyond the statutorily mandated 120 days. The communications between Claimant and Employer prior to the November 2017 surgery list his restrictions at work as “Non- Occupational” and “NOC.” Thus, it was clear that both Claimant and Employer believed at that time that Claimant’s right diabetic foot ulcer was not work related. Claimant, in the communications after his foot surgery and before the Claim Petition, never stated to Employer that he suspected or believed that his foot surgery was work related. Because substantial record evidence did not support the WCJ’s conclusion that Claimant provided Employer with adequate notice of his work-related injury pursuant to Section 312 of the Act within 120 days as required by Section 311 of the Act, this Court reversed the Board’s order.

Reversed.

 

Anthony J. Harris v. County of Bucks (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: August 17, 2023

Issues:

Whether the WCJ erred in concluding that Claimant failed to give proper notice of the alleged 2020 Injury?

Background:

Claimant suffered a lower back strain on May 30, 2018, after lifting a patient (2018 Injury) while in the course and scope of his employment as a restorative aide for a long-term care nursing home. Employer subsequently issued a medical-only Notice of Compensation Payable (NCP) on August 27, 2018, as Claimant had returned to his preinjury position with no further loss of wages. After Claimant’s lower back symptoms recurred in March 2020, Claimant’s total disability benefits were reinstated, effective May 31, 2020, pursuant to an amended NCP issued on September 25, 2020, which described the 2018 Injury as a lower back strain or tear. Following a June 19, 2020 independent medical examination (IME) which opined that Claimant had fully recovered from the 2018 Injury, Employer filed petitions to terminate Claimant’s total disability benefits. On November 6, 2020, Claimant filed review and modification petitions, alleging a March 2020 work-related aggravation of the 2018 Injury, and seeking an amendment to the description of his accepted work injury to include a disc herniation at L3-4, with radiculopathy and stenosis. Claimant also alleged that he sustained a new work injury in March 2020 (2020 Injury). Employer denied the allegations and argued that Claimant failed to provide proper notice of the alleged 2020 Injury. The WCJ found that Claimant failed to meet his burden of proving that he sustained the alleged 2020 Injury, or that he provided timely notice thereof. The WCJ granted Employer’s termination petition. Claimant’s review and modification petitions were denied and dismissed. Claimant appealed to the Board, which affirmed.

Holding:

Claimant had multiple opportunities to advise Employer of any work incident that either increased the symptoms in his lower back or caused a new work injury, but he failed to do so within the time frame set forth in Section 311 of the Act. Accordingly, the WCJ properly concluded that Claimant failed to provide timely notice of the alleged 2020 Injury pursuant to Section 311 of the Act. Timely notice of a work injury is a prerequisite to receiving workers’ compensation benefits, and the claimant bears the burden of showing that proper notice was given. Unless an employer has knowledge of the work injury, Section 311 of the Act requires that an employee give notice of a work injury within 120 days of its occurrence. By Claimant’s own argument, he knew from the May 12, 2020 MRI that his lower back condition included an L3-4 disc herniation and stenosis. Yet, he still failed to apprise anyone.

Affirmed.

 

 

STATUTE OF LIMITATIONS

 

Charles B. Keffer v. Colfax Corp. & Phoenix Insurance (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 11, 2023

Issues:

Whether Employer should be held responsible for notifying Claimant when the three-year statute of repose in Section 413(a) of the Act would expire? Whether Employer should have been equitably estopped from raising the statute of repose in Section 413(a) as a defense to Claimant’s review and reinstatement petitions?

Background:

Claimant suffered a right low back strain in 2014. Claimant received partial wage loss benefits until he returned to full-duty work on March 9, 2015. Employer issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP), which specified that Claimant would no longer receive wage loss benefits, but that Employer accepted liability for Claimant’s work-related medical expenses. In 2018, Claimant underwent a discectomy and Claimant, and Employer executed a Supplemental Agreement, acknowledging that Claimant’s disability had recurred, and that he would receive total disability benefits. On June 29, 2018, Claimant returned to work with no further loss of wages and a second supplemental agreement was issued. In 2021, Claimant filed petitions seeking reinstatement of his total disability benefits, a review of his medical treatment and medical bills, and an amendment to the description of his work injury to include L5-S1 disc herniation. Employer denied the allegations and argued that Claimant’s petitions were time-barred, as they had not been filed within three years of Claimant’s last payment of compensation. The WCJ held that Claimant’s petitions were untimely, as the statute of repose in Section 413(a) of the Act, 77 P.S. § 772, bars the amendment of a work-injury description after three years following the last payment of wage loss benefits, and Claimant’s wage loss benefits ceased following issuance of the medical-only NCP on March 12, 2015. Thus, Claimant’s May 14, 2021 review and reinstatement petitions were filed more than three years after Claimant’s last payment of wage loss benefits. The April 23, 2018 Supplemental Agreement did not toll the three-year statute of repose in Section 413(a), as it had already expired when the Supplemental Agreement was executed.

Holding:

Claimant’s review and reinstatement petitions were filed more than three years after his last payment of compensation. Therefore, they are time-barred by the statute of repose in Section 413(a) of the Act. The record does not reflect that Employer engaged in conduct that would equitably estop Employer from raising the statute of repose as a defense to Claimant’s petitions. Given that Claimant received wage loss benefits pursuant to the January 14, 2015 NTCP until March 12, 2015, when Employer issued the NSTC and medical-only NCP, Claimant’s petitions were time-barred as of March 12, 2018. Employer had no reason to believe the January 16, 2018 IME would run afoul of the statute of repose in Section 413(a), as the three-year limitations period would not expire until March 12, 2018. Further, Employer was under no legal obligation to notify Claimant that the three- year limitations period for filing his review and reinstatement petitions, or otherwise pursuing his claim for benefits, would expire on March 12, 2018. The Act does not impose such a duty. Claimant’s receipt of partial wage loss benefits ended when Employer issued the NSTC and medical-only NCP on March 12, 2015. Thereafter, Claimant had until March 12, 2018, to file his review and reinstatement petitions. Claimant’s right to do so had already expired when the parties executed the April 23, 2018 Supplemental Agreement. Thus, the WCJ correctly held that the Supplemental Agreement did not toll the statute of repose, as the PA Supreme Court has held that no payment, whether by agreement or misconstruction of the Act, or commendable compassion, can operate to resurrect an expired claim, once the three-year limitations period in Section 413(a) has expired. Claimant’s estoppel argument is largely predicated on his compensation rights having expired on December 18, 2017. As discussed above, Claimant’s three-year period for filing his review and reinstatement petitions expired on March 12, 2018, after the January 16, 2018 IME took place. The doctrine of equitable estoppel requires more than Employer’s “silence or inaction.” Employer had to remain silent when it ought to speak out. Employer had no duty to inform Claimant of the statute of repose in Section 413(a), or of the date upon which the three-year limitations period would expire. Furthermore, there is no evidence to suggest that Employer affirmatively told Claimant that the three-year period had been tolled or somehow extended.

Affirmed.

 

 

SUBROGATION

 

John Mercalde v. Borough of Swissvale et al (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum
Opinion Decided: August 18, 2023

Issues:

(1) whether Employer’s total subrogation interest is limited by agreement to $50,505.99 pursuant to the TPSA (third party settlement agreement); (2) whether Employer’s total subrogation interest is limited to $50,505.99 because Employer cannot subrogate against Claimant’s recovery for pain and suffering; (3) whether Employer’s total subrogation interest is limited to $50,505.99 by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Background:

Claimant was injured in a car accident while on duty as a police officer for Employer. In related  civil  proceedings  against  the  third-party  tortfeasor,  Claimant  received  a $250,000.00 settlement. Claimant and Employer thereafter executed a TPSA, dated April 3, 2020. After the parties executed the TPSA, Employer continued to pay indemnity benefits to Claimant at the reduced 25.84% rate identified in the TPSA. Claimant’s counsel in the related civil proceedings placed $50,505.99 into an escrow account, which amount Claimant believed would satisfy Employer’s entire subrogation interest under the TPSA. After Claimant’s counsel did not remit the payment, Employer filed the Review Petition. By Decision and Order circulated on January 29, 2021, the WCJ granted Employer’s Review Petition, finding that Employer did not intend by executing the TPSA to voluntarily limit its total subrogation interest to the amount of its net subrogation lien and that the TPSA clearly contemplates that Employer would subrogate against future payments of indemnity benefits and that the language added to the TPSA by the parties under “Further Matters Agreed Upon” was only intended to bring it into compliance with Whitmoyer. Claimant appealed to the Board, which affirmed. Claimant now seeks review in this Court.

Holding:

The Court held that all issues raised by Claimant are either without merit or are waived. There has been no evidence offered by Claimant other than his “interpretation” of the language contained in the TPSA under “Further Matters Agreed Upon.” Claimant attempts to isolate the language under the heading “Further Matters Agreed Upon” from the rest of the TPSA and counsel’s prior communications. The Court will not interpret one provision of an agreement in a manner that annuls another. It is clear from counsel’s communications and the inclusion of a citation to the Whitmoyer decision in the TPSA that the language under “Further Matters Agreed Upon” was intended chiefly to conform the TPSA to Whitmoyer and preclude the reduction of future medical expenses. Claimant introduced no evidence indicating whether, or to what extent, Claimant’s third-party settlement includes damages specifically designated as compensation for pain and suffering. On that basis alone, Claimant’s argument is meritless. Claimant’s Constitutional argument was waived.

Affirmed.

 

 

Barbara Tiano v. City of Philadelphia and PMA Management Corp. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 17, 2023

Issues:

Whether a self-insured government entity has subrogation right to paid HLA (Heart and Lung Act) benefits against her third-party recovery, regardless of whether the underlying injury was caused by a motor vehicle? Whether Employer is barred from exercising subrogation rights due to Claimant’s status as a government employee?

Background:

Claimant was employed as a police officer by Employer. Claimant sustained a work-related injury after falling into a utility hole. Employer accepted responsibility for Claimant’s injury by a Notice of Compensation Payable. In lieu of WC benefits, Employer paid HLA benefits to Claimant. Claimant was awarded $450,000 from a settlement against PECO Energy Co., the third-party tortfeasor responsible for her injury. After dispersing attorney’s fees and additional costs, a total of $264,385.31 remains in escrow pending resolution of the HLA lien. Employer filed review and modification petitions seeking subrogation against Claimant’s third-party recovery. Employer asserted a lien of $325,074.63, comprised of $13,782.26 in medical payments, $319,206.63 in wage loss benefits, and $5,868.00 in indemnity payments. Thereafter, while Employer’s petitions were pending before the WCJ, the parties reached an agreement to cease HLA benefits because Claimant had achieved maximum medical improvement. Additionally, Employer presented evidence that Claimant’s HLA benefits had changed to WC benefits. The WCJ determined that prior to the parties’ agreement, Claimant was only paid HLA benefits. The WCJ concluded that once the HLA benefits stopped pursuant to the parties’ agreement, Claimant then began receiving WC benefits. Accordingly, the WCJ found that Employer could begin subrogating paid WC benefits as of the May 29, 2020 agreement. The Board affirmed in part, reversed the WCJ on the subrogation issue, and remanded for calculations. The Board concluded that because the third-party settlement arose from a non-motor vehicle related cause of action, Employer has a subrogation right to paid HLA benefits from the date of the work injury.

Holding:

Precedent clearly supports Employer’s subrogation right to recoup paid HLA benefits from third-party settlement proceeds. Further, Claimant is not immune from Employer’s right of subrogation. Pennsylvania common law has recognized an employer’s right to subrogation of paid HLA benefits against a third-party tortfeasor. The public policy support for subrogation is three-fold, it allows for prevention of: (1) a claimant’s double-recovery, (2) an employer from making payments based on a third-party’s negligence, and (3) a third- party escape of liability for its negligence. Irrespective of whether the claimant is the recipient of WC or HLA benefits, an employer is entitled to recoup benefit payments from any third-party recovery that the injured employee has secured. Because this case does not arise out of the “use or maintenance” of a motor vehicle, Employer is entitled to a subrogation right of paid benefits against Claimant’s third-party recovery. As for immunity, section 23 of Act 44 codifies a sovereign immunity doctrine, which protects government officials and employees acting within the scope of their duties from subrogation claims against a claimant’s tort recovery in workers’ compensation matters. However, Section 23 of Act 44 does not protect Claimant’s government employee status as the injured party. It protects government tortfeasors, not injured government parties, and does not preclude an employer’s subrogation right against its own employee’s third-party recovery.

Affirmed.

 

 

IMPAIRMENT RATING EVALUATIONS

 

John Hutchinson v. Annville Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 15, 2023

Issues:

Whether the credit provision of Section 3(2) of Act 111 violates due process rights?

Background:

In 2006, Claimant suffered a work-related fracture. In 2009, Employer had Claimant undergo an Impairment Rating Evaluation (IRE) under former Section 306(a.2) of the Act, which resulted in a WCJ decision granting a modification of Claimant’s benefits to partial disability as of February 23, 2010. Claimant did not appeal the WCJ’s decision. In 2017, Claimant filed a Reinstatement Petition seeking a change in his disability status from partial to total disability based on the Pennsylvania Supreme Court’s opinion in Protz II. In 2020, the WCJ issued a decision granting Claimant’s Reinstatement Petition and Claimant’s disability status remained at total disability effective March 6, 2017. In 2019, Claimant submitted to an IRE and Employer filed a Petition to Modify based on this IRE. As a result, in her 2020 decision, the WCJ also granted Employer’s Modification Petition, modifying Claimant’s disability status from total disability to partial disability effective the date of the IRE. Both Claimant and Employer filed cross-appeals. The Board affirmed the WCJ’s decision. On further appeal, the Court affirmed the Board’s order. In 2020, while the prior Board appeal was pending, Employer stopped paying Claimant’s disability benefits upon his receipt of 500 weeks of partial disability payments. As a result, Claimant filed the instant Reinstatement Petition alleging, that in calculating the 500-week partial disability benefit period, Employer used benefits paid pursuant to an IRE which has since been found to be unconstitutional and was invalidated. The WCJ issued an order dismissing Claimant’s Reinstatement Petition. The Board affirmed.

Holding:

With respect to the retroactive application of the credit provisions of Section 3(1) and (2) of Act 111, whereby any weeks of partial disability previously paid will count towards the 500-week cap on such benefits, the General Assembly intended that employers and insurers that relied upon former Section 306(a.2) to their detriment by not pursuing other methods of a modification should not bear the entire burden of the provision being declared unconstitutional. However, for the benefit of claimants, the General Assembly also specifically reduced the impairment rating necessary for a claimant’s status to be changed from 49% or lower to 34% or lower, making it more difficult for employers to change total disability status to partial disability status. That the General Assembly used specific language to give retroactive effect to these carefully selected individual provisions does not make the entirety of Act 111 retroactive as the amendment lacks clear language to that effect. The Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing TTD status.

Affirmed.

 

 

RES JUDICATA

 

Todd Nuttall v. City of Chester (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 8, 2023

Issue:

Whether the Board erred by affirming the WCJ Decision that dismissed the Petitions on the basis of res judicata?

Background:

In 2010, Claimant, a police officer for Employer, entered Employer’s Deferred Retirement Option Plan (DROP) program, which Employer offers to allow police officers with at least 20 years of service to continue to work and be paid while also receiving pension benefits. Under this program, an officer who is otherwise entitled to retire may enter the DROP program, continue to work, and be paid by Employer while also receiving his pension benefits. To participate in the DROP program, officers shall make an irrevocable commitment to separate from Employer’s service as a police officer and retire upon ceasing participation in the DROP, which they must do no later than five (5) years after entering the DROP. Claimant’s DROP separation date was January 31, 2015. On March 27, 2014, Claimant suffered a work-related injury. On September 12, 2016, Employer filed a modification petition and a suspension petition, both of which alleged that Claimant has post-injury self-employment earnings for which it was entitled to a credit. Employer amended the petitions to include a claim that Claimant voluntarily withdrew from the work force as a result of his participation in the DROP program, and a further allegation that it was entitled to a credit regarding its contribution to Claimant’s pension fund. In 2018, the WCJ issued a decision that, among other things, determined Employer had met its burden of proving that Claimant had voluntarily withdrawn from the work force as of his DROP retirement date of January 31, 2015. On appeal, the Board, and then the Court affirmed, determining that the objective facts presented in Nuttall I represented substantial evidence to support the Previous WCJ’s determination that Claimant had voluntarily retired from the work force and the Board’s affirmance thereof. In 2020, Claimant filed the instant Petitions, alleging that Claimant experienced a worsening of his condition as of December 21, 2015, relative to the March 27, 2014 work injury that was the subject of Nuttall I, and seeking a reinstatement of Claimant’s benefits. The WCJ dismissed the Petitions, determining that the Petitions are barred by the doctrine of res judicata. All issues concerning Claimant’s disability during that time the record was open should have been raised during the litigation. Claimant’s assertion that his condition worsened should have been raised during this litigation and is therefore precluded.

Holding:

Res judicata applies to this matter and precludes Claimant from relitigating the prior determination that his loss of earning power was due to his voluntary retirement. Claimant had ample opportunity to present evidence that his condition had worsened and that such worsening, rather than his voluntary retirement, was the cause of his loss of earning power during the course of prosecution of the petitions underlying Nuttall I.

Affirmed.

 

 

SPECIFIC LOSS

 

Jennifer Jackiw v. Soft Pretzel Franchise (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 10, 2023

Issue:

Whether the Board erred in affirming the WCJ’s application of Walton and limiting her compensation rate to 90% of her AWW as provided in Section 306(a) of the Act, 77 P.S. § 511.

Background:

On June 4, 2020, Claimant suffered a crush injury to her right lower arm, which was amputated. The parties stipulated that Claimant’s injury was a specific loss of the forearm under Section 306(c)(2) of the Act and that she was entitled to 370 weeks of compensation and a healing period of 20 weeks. However, the parties could not agree whether the specific loss benefit rate should be calculated under Section 306(a) or Section 306(c) of the Act and submitted the issue to the WCJ. Following a hearing, the WCJ determined that specific loss benefits should be calculated pursuant to Section 306(a) because the legislature did not intend to treat claimants receiving specific loss benefits differently from claimants receiving disability benefits. Claimant timely appealed to the Board, which affirmed.

Holding:

Section 306(a) provides that in cases of total disability, an employee may be compensated sixty-six and two-thirds per centum of her AWW beginning after the seventh day of total disability, and payable for the duration of total disability. Further, if the benefit calculated is less than fifty percent of the statewide AWW, then Section 306(a) defines a remedial calculation, the benefit payable shall be … ninety per centum of the worker’s AWW. Section 306(c) of the Act sets out the schedule of compensation for disability relating to specific loss, i.e., permanent injuries of certain classes. For example, an employee who suffers the loss of a forearm shall receive “sixty-six and two-thirds per centum of [her AWW] during three hundred seventy weeks.” This difference between Section 306(a) and Section 306(c) was at issue before the Walton Court. The Walton Court applied the remedial calculation defined in Section 306(a) and awarded the claimant ninety percent of his wages. The Court has indeed addressed and used the Walton interpretations throughout the years, and despite her tragic injury, Claimant simply has not provided a compelling reason to set aside 40 years of precedent.

Affirmed.

 

 

TERMINATION

 

Tawanda Harris v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 7, 2023

Issue:

Whether the WCJ’s decision granting Employer’s Termination Petition and denying the Review Petition is supported by substantial evidence?

Background:

On February 1, 2019, Claimant tripped over a mail bin in the course and scope of her employment with Employer as a clerical assistant. Employer acknowledged the injury in a Notice of Compensation Payable (NCP). Employer filed a Termination Petition and an accompanying Suspension Petition alleging that Claimant had fully recovered from her injuries as of the date of an independent medical examination. Claimant thereafter filed a Review Petition in which she sought to amend the NCP and add injuries. The WCJ denied Claimant’s Review Petition, granted Employer’s Termination Petition, and denied as moot Employer’s Suspension Petition. The Board affirmed.

Holding:

Claimant’s argument that the WCJ’s acceptance of the opinion that Claimant’s ongoing subjective symptoms and pain were not caused by the work injury violates the principles set forth in established law which requires an employer that seeks to terminate WC benefits on the ground that the claimant’s disability no longer is work-related to establish an independent cause for the disability that arose after the filing of the original NCP, is without merit. Because employer’s medical testimony is sufficient to support the WCJ’s termination of benefits, Claimant’s challenge to the WCJ’s decision in this regard is without merit. Although Claimant couches her arguments in this regard in terms of substantial evidence, her argument in reality is a veiled challenged to the WCJ’s credibility determinations, which the Court cannot disturb on appeal unless, in making those determinations, the WCJ acted arbitrarily or capriciously and disregarded evidence. The WCJ’s credibility determinations in this regard were neither arbitrary nor capricious. Rather, and contrary to Claimant’s contention, a reasonable mind could, and did, accept Employer’s expert’s testimony. This testimony was competent and unequivocal and provided substantial evidence to support the WCJ’s findings and credibility determinations. Claimant’s challenge on this ground is without merit.

Affirmed.

 

 

Dessalont Hawkins v. CJ’S Tire And Auto, Inc. and The UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 21, 2023

Issue:

Whether the Board erred in affirming the WCJ’s grant of UEGF’s (Unemployment Guaranty Fund) termination petition and modification of the pre-injury average weekly wage?

Background:

Claimant was involved in a motor vehicle accident on January 2, 2017, his first full day of work as a tow truck driver for CJ’s Tire and Auto, Inc. (Employer). Claimant filed a claim petition against Employer alleging that he sustained injuries to his lower back, left hip and left shoulder as result of the accident. Claimant later filed a claim petition naming both “Uninsured Employer” and the UEGF as defendants. By decision rendered March 19, 2019, the WCJ granted the claim petitions. In December 2019, UEGF petitioned to terminate Claimant’s workers’ compensation benefits, alleging that Claimant had fully recovered as of September 13, 2019. Claimant filed a reinstatement petition, asserting that his condition had worsened to the point of total disability as of February 4, 2019. The WCJ denied Claimant’s reinstatement petition, granted UEGF’s termination petition and concluded that Claimant had fully recovered as of September 19, 2019, and terminated Claimant’s medical and wage loss benefits as of that date. Regarding the question of Claimant’s average weekly wage, the WCJ fixed Claimant’s pre-injury average weekly wage at $500 per week. The Board affirmed.

Holding:

While this Court can and should consider the competency and sufficiency of evidence presented before a WCJ, the WCJ’s assessment of witness credibility is not subject to our review on appeal. A WCJ’s determination regarding the credibility of a medical witness is not subject to review on appeal. The Court agreed that $500 is a reasonable estimate of Claimant’s pre-injury average weekly wage. Due to the unpredictable nature of Claimant’s work schedule and the unusually limited duration of his employment, any amount beyond this range would constitute speculation, rather than the “prospective calculation” permitted by Section 309 of the Act. Therefore, the WCJ did not err in finding that $500 is a reasonable average weekly wage.

Affirmed.

 

 

MODIFCATION

 

Michael J. Smith v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 9, 2023

Issue:

Whether the WCJ’s decision to modify Smith’s benefits as of April 8, 2021, was supported by substantial and competent evidence?

Background:

Smith worked for Employer as a youth detention counselor when he sustained injuries on two separate occasions: September 21, 2017, and July 10, 2019. On September 21, 2017, Employer submitted a Notice of Compensation Payable (NCP) acknowledging Smith’s work injury as a strain or tear injury to his left shoulder and low back. On December 8, 2017, Smith returned to full-duty work. On July 10, 2019, Smith tripped and fell during a work incident and injured his lower back. Employer paid Smith workers’ compensation benefits beginning July 15, 2019. In 2020, Employer filed Termination Petitions averring Smith was fully recovered from his 2017 and 2019 injuries. Smith then filed a Review Petition alleging the description of his 2019 injury was incorrect. In 2021 Employer filed the Modification Petition based on a Specific Job Offer. The WCJ granted Smith’s Review Petition and denied Employer’s Termination Petitions. The WCJ granted Employer’s Modification Petition, modifying Smith’s benefits as of April 8, 2021.

Holding:

Questions of credibility, conflicting medical evidence and evidentiary weight fall within the WCJ’s authority, and the WCJ is free to accept the testimony of any witness, including medical witnesses, in whole or in part. The WCJ is the ultimate factfinder, but a WCJ must provide reasons for accepting or rejecting evidence. In Employer’s Modification Petition, Employer stated, as of April 8, 2021, a light-duty position is available, which was offered to Smith. When an employer offers claimant a job he previously performed, no job position or duties must be specified since the claimant can reasonably assume that he is being offered the same position that he has previously worked, and thus, is familiar with the requirements of that position. The WCJ determined the Employer has met its burden of proof that claimant was able to work in a modified-duty position of office clerk which was open and available as of April 8, 2021, whereby his benefits should be modified as of April 8, 2021. The WCJ adequately considered the evidence, and the Board affirmed the WCJ’s decision concluding it was based on substantial evidence and there was no error of law.

Affirmed.

 

 

Naomi Diblassio v. Therapeutic Center At Fox Chase (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 7, 2023

Issue:

Whether the WCJ’s conclusion that Employer met its burden to prove that Claimant failed to attempt in good faith a job offered to her within her capabilities was based on substantial competent evidence?

Background:

On March 2, 2015, while employed as a school psychologist, Claimant slipped at work and suffered a “trunk, low back area sprain,” which Employer accepted by issuing a Notice of Temporary Compensation Payable, setting a compensation rate of $471.40, based on a pre- injury average weekly wage of $523.77. Based on an IME of Claimant, Employer issued a Notice of Ability to Return to Work on June 19, 2018. On February 6, 2019, Employer filed a Modification Petition requesting that Claimant’s benefits be modified to partial disability. Employer alleged that Claimant had been offered a job within her physical capabilities, but she declined the position without adequate reason. The WCJ granted Employer’s Modification Petition. The Board affirmed the WCJ’s Decision.

Holding:

Claimant argues Employer failed to make its job referral in good faith because it did not consider Claimant’s age, lack of experience in the field, and other relevant factors. The WCJ is the ultimate factfinder herein and has exclusive province over questions of credibility and evidentiary weight. The employer bears the burden of proving the availability of suitable employment. To meet this burden, an employer must demonstrate that the job offer will return the claimant to productive employment, and not simply avoid payment of compensation. By her own admission, Claimant can perform the work vocationally, for the only concern to which she testified before the WCJ was whether she would be limited by the pain of her injury. The WCJ determined Ms. Wallace had credibly testified that the market research associate position is both physically and vocationally appropriate for Claimant. The WCJ also found Ms. Berg’s explanation that Claimant turned down the position because it was not of interest to her to be credible, and, therefore, Employer had met its burden to prove that Claimant did not attempt in good faith the position offered to her. Because the record evidence supports the WCJ’s findings, these findings were not made arbitrarily and capriciously, and the WCJ did not err in granting Employer’s Modification Petition.

Affirmed.

 

 

JUDICIAL DISCRETION

 

Frank Guille v. Upper Darby Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 15, 2023

Issue:

Whether the Board erred in affirming the WCJ’s decision because the WCJ’s credibility determinations were insufficient, and the findings of fact were not supported by substantial evidence?

Background:

Claimant was employed as an acting patrol supervisor. While Claimant was investigating a car without a license plate, the suspect put the car in reverse and accelerated backwards downhill into Claimant’s patrol vehicle. Employer filed a termination petition alleging full recovery. In response, Claimant filed a review petition to add additional injuries. The WCJ granted Employer’s termination petition and denied Claimant’s review petition. In so doing, the WCJ credited employer’s expert testimony over claimants. The WCJ found Claimant credible with respect to the occurrence of the work injury. The WCJ found Claimant not credible with respect to his symptoms from the work injury or his inability to work. The Board affirmed the WCJ’s decision.

Holding:

Claimant’s argument that employer’s medical expert’s opinions were equivocal because he was uncertain about the extent of the injuries Claimant had sustained and that the WCJ did not adequately explain his decision to reject claimant’s experts’ opinions is without merit. The WCJ, as fact finder, has exclusive province over questions of credibility and evidentiary weight, and the WCJ’s findings will not be disturbed when they are supported by substantial, competent evidence. The WCJ’s exercise of discretion, is not without limitation. Section 422(a) of the Act requires the WCJ to issue a reasoned decision that adequately explains a credibility determination. The WCJ in this case did more than announce one expert more credible and persuasive than another. The WCJ articulated an objective basis for his credibility determination by identifying and evaluating the factors relevant to credibility. Here, the WCJ, in a proper exercise of his discretion, credited employer’s expert’s testimony. The relevant inquiry in a substantial evidence analysis is not whether there is any evidence which supports the WCJ’s factual finding.

Affirmed.

 

 

Khary Parks v. Urban Outfitters, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 11, 2023

Issues:

Whether the WCJ capriciously disregarded uncontroverted evidence, and relied on incompetent evidence and/or contradicted by the overwhelming evidence in the record?

Background:

Claimant was injured during the course and scope of his work as a line cook for Employer on August 22 and 26, 2018, when he slipped and fell on a wet floor. Employer accepted the work-related injury via a Notice of Temporary Compensation Payable (NTCP) that described Claimant’s injury as a “low back contusion.” On September 5, 2018, Claimant filed two Claim Petitions alleging injuries to his neck, arms, and mid and lower back, resulting in total disability as of August 26, 2018. On November 20, 2018, Employer filed two Termination Petitions alleging that as of October 25, 2018, Claimant had fully recovered from the work-related injuries. The WCJ granted, in part, Claimant’s Claim Petitions to the extent Claimant “sustained a lumbar spine contusion and sprain” and concluded that medical benefits are payable until the date of the IME. The WCJ denied Claimant’s Claim Petitions in all other respects. The WCJ granted Employer’s two Termination Petitions effective October 25, 2018. Claimant appealed to the Board, which affirmed.

Holding:

In a workers’ compensation proceeding, the WCJ is the ultimate factfinder and the sole arbiter of credibility and weight of evidence. If the facts as found by the WCJ rest on substantial evidence, they may not be disturbed. It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. Although the Board must determine whether the WCJ’s findings have the requisite measure of support in the record, findings of fact can be overturned only if they are arbitrary or capricious. In this matter, the WCJ did not disregard uncontroverted evidence. Rather, the WCJ made credibility findings which was within her purview. Since Dr. Rushton’s testimony was not based solely on inaccurate information, Claimant’s argument that Dr. Rushton’s testimony was incompetent lacks merit. Claimant merely seeks to reweigh the evidentiary determinations made by the WCJ, which may not be done because such determinations are within the exclusive province of the WCJ as the factfinder and not subject to review on appeal.

Affirmed.

 

 

Brian Vazquez v. Arthur Jackson Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 4, 2023

Issue:

Whether the Board erred in affirming the WCJ’s decision because it is not a reasoned decision and the WCJ should have granted the Claim Petition, at least in part?

Background:

Claimant filed a Claim Petition in which he alleged, inter alia, that he suffered a work- related injury in the nature of injury to the lower back with left lower extremity radiculopathy while in the course of his employment as a project manager for Employer. Claimant also alleged that he suffered the injury while he was moving furniture and felt a sharp pain in his lower back, and that he notified his supervisor of the work-related injury. The WCJ noted that he reviewed Claimant’s testimony in conjunction with the other evidence, and did not find it credible. He found the employer’s witness credible and did not find the claimant’s expert credible. The WCJ held that Claimant did not sustain a work injury and concluded that he failed to sustain his burden of proving such to support the award of WC benefits. The Board affirmed.

Holding:

In a claim petition, the claimant bears the burden of proving all of the elements necessary to establish entitlement to benefits under the Act. Claimant’s expert based his opinion on causation entirely upon the history provided to him by the claimant, which the WCJ rejected. If the WCJ rejects the relied-upon information, then expert medical testimony premised upon the expert’s assumption of the truthfulness of the information provided is not competent. Acceptance of a history of an injury by an employer’s medical expert for purposes of rendering a medical diagnosis does not constitute an admission or concession by the employer that the injury was work related. There is simply no evidence supporting Claimant’s Claim Petition because the WCJ discredited Claimant’s testimony and rejected the existence of any work-related injury.

Affirmed.

 

 

Department of Agriculture v. Summer Pieretti (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 22, 2023

Issues:

Whether the WCJ erred in finding that Claimant’s work-related injury should be expanded to include “possibly” CRPS? Whether the WCAB erred in amending the conclusion of the WCJ regarding the nature of Claimant’s work injury from “possibly CRPS” to CRPS?

Background:

On August 30, 2017, Claimant was employed by Employer and sustained a left ankle injury when a car backed into her and pinned her foot and ankle between the curb and the car. Claimant filed a Claim Petition seeking benefits pursuant to the Workers’ Compensation Act. On September 12, 2017, Employer filed a Notice of Compensation Payable (NCP) describing the accepted work injury as a left ankle-severe contusion. On April 10, 2018, Claimant underwent surgery. On July 24, 2019, Employer filed a Petition to Modify Claimant’s benefits effective May 21, 2019, based on a labor market survey and an IME. Claimant filed a Review Petition, seeking to expand the description of her work injury to include “left foot/ankle crush injury, post-surgery with residual neuropathy and pain.” The WCJ denied Employer’s Modification Petition and granted Claimant’s Review Petition. Employer appealed. The WCAB ruled that there was substantial, competent evidence to affirm the WCJ’s determination that Claimant suffers from CRPS as a result of her work accident. As such, the WCAB amended the WCJ’s order to include CRPS, and not “possibly CRPS” as one of Claimant’s work-related injuries

Holding:

The WCAB did not err when it concluded that there was substantial, competent evidence to affirm the WCJ’s determination that Claimant suffers from CRPS as a result of her work accident. However, because the inclusion of the word “possibly” in the WCJ’s Conclusion of Law No. 3 was inconsistent with Finding of Fact No. 26, in affirming the WCJ’s decision, the WCAB simply deleted the word “possibly.” There was no error in doing so as the WCAB had the authority to correct the WCJ’s decision in this regard, based upon substantial evidence, and find that she not merely “possibly” suffers from it, but, in fact, does suffer from this condition.

Affirmed.

 

 

PHYSICAL/MENTAL INJURY

 

The School District of Phila. v. Shahyra Smith (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 22, 2023

Issues:

Whether the WCJ and Board erred in applying the physical/mental standard to Claimant’s claim petition?

Background:

Claimant sustained a work injury as a special education teaching assistant when a student struck her in the abdomen. Claimant was eight months pregnant at the time. Claimant filed a claim petition seeking total disability, alleging that she sustained an abdominal contusion and a psychological injury. Employer admitted that Claimant sustained an abdominal contusion but denied that Claimant subsequently developed a psychological injury. The WCJ awarded Claimant total disability benefits. Employer appealed to the Board, which remanded the matter to the WCJ to clarify his reasons for applying the physical/mental standard and to render findings of fact establishing that Claimant met the standard. Following remand, the WCJ circulated a decision, in which he found that Employer accepted liability on a medical-only basis for Claimant’s physical work injury. Therefore, the physical/mental standard applied. The WCJ found that Claimant met her burden, as she sustained a physical injury that required medical treatment. Employer appealed to the Board, which affirmed the WCJ.

Holding:

Employer maintains that Claimant did not sustain a physical injury requiring treatment and, therefore, the physical/mental standard did not apply. A claimant’s burden in a physical/mental case is identical to the burden utilized to determine eligibility for workers’ compensation. There is no dispute that Claimant sought treatment immediately following the work injury. The case law suggests that the courts have declined to apply the physical/mental standard for matters in which a claimant has not received any medical treatment for the physical stimulus that caused a work injury. They have applied the physical/mental standard for matters in which a claimant’s physical injury did not require extensive medical treatment. Here, Claimant did, in fact, receive treatment for her work injury, and the symptoms related thereto, albeit, not extensive. She subsequently developed PTSD that the accepted medical evidence related to the work injury. Based on these undisputed facts, the WCJ did not err in applying the physical/mental standard in this matter.

Affirmed.

 

DISSENTING OPINION BY PRESIDENT JUDGE COHN JUBELIRER

The dissent felt that the case should be evaluated under the mental-mental standard, but without requiring a claimant to show abnormal working conditions as is currently required with the mental- mental standard.

 

 

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES

08/01/2023 – 08/31/2023

 

JUDICIAL DISCRETION

 

Gonzalez v. New Jersey Transit Corp.
Superior Court of New Jersey, Appellate Division No. A-1408-22; 2023 WL 5344867
Decided: 08/21/2023

Background:

Claimant, a NJT bus driver, sustained an injury after a slip and fall in January 2016 while walking from a convenience store to his bus. He filed a claim petition for his injuries.

Employer admitted that the injuries were sustained in the course of employment “but did not admit the nature and extent of his injuries.” The Employer also reserved the right to invoke their Section 40 lien rights.

Employer proposed a Section 20 settlement to the Judge of Workers’ Compensation (JWC). There were still the contested issues of the causal relationship between the injuries and the incident. This was because Claimant’s prior injuries and prior workers’ compensation awards were not disclosed until treatment and settlement discussions had already commenced. In addition, Claimant had a Section 40 lien from a settlement with the convenience store and there were disputes involving this.

The JWC advised the parties that she needed Claimant to testify before approving the proposed Section 20 settlement and scheduled trial. Employer filed a motion for leave to appeal with this court. This court granted leave to appeal and remanded requiring the JWC to issue an order either approving or rejecting the proposed settlement along with a statement of reasons supporting the order.

The JWC timely issued an order rejecting the Section 20 settlement. The JWC supported the decision by stating a Section 20 settlement is the equivalent of a dismissal with prejudice since the petitioner receives a one-time payment and loses the right to seek additional benefits; it therefore requires additional scrutiny to avoid abuse. The JWC found no basis to support a Section 20 settlement in the Employer’s arguments regarding the nature of the credit for the pre-existing injuries, the Claimant’s failure to disclose prior injuries, and the Section 40 lien’s impact on recovery. Both the Section 40 lien and credit for the Claimant’s pre-existing injuries are not statutory reasons in support of a Section 20 settlement as they can be addressed in a “workers’ compensation court in a

N.J.S.A. 34:15-22 order approving settlement, which would not dismiss the case with prejudice.” The JWC determined that the Claimant’s live testimony was necessary to establish his credibility regarding his existing injuries since permanency doctors found a causal relationship and the Employer admitted the injuries were sustained during employment. Thus, the JWC determined that this matter was inappropriate for Section 20 settlement.

Employer appealed the order, and this court affirms the decision. Employer argues that the JWC abused discretion, specifically that the scope of their inquiry must be confined to the record. They argue that during the COVID-19 pandemic, Section 20 settlements were approved based on a petitioner’s affidavit and a waiver of appearances. They further argue that the JWC instead of making a fairness determination, focused on the validity of the disputes.

 

Holding:

The JWC has oversight regarding approval of settlements given to it by the Legislature. This includes hearing petitioner testimony to ensure compliance with Section 20. Here, the JWC properly exercised this discretion. Section 20 requires consideration of live testimony unless the JWC finds circumstances to prevent the petitioner’s appearance. It is within the JWC’s discretion to decide to approve a Section 20 settlement based only on an affidavit because of situations due to COVID-19. Here, there was no problem with Claimant testifying, therefore COVID-19 was not a valid reason to prevent testimony.

Liability and causal relationship were not at issue here. There was no evidence that the employer’s liability would be eliminated by the Section 40 lien credits or prior injury credits. It was admitted that the accident occurred in the course of employment and there was a factual finding that both parties’ doctors found a relationship between the accident and injury; therefore, a causal relationship clearly existed. The decision of the JWC did not abuse her discretion as her decision is justified and supported.

Affirmed.

CASE SUMMARIES 7/1/2023 – 7/31/2023

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES

7/1/2023 – 7/31/2023

 

IMPAIRMENT RATING EVALUATIONS

 

Terry Brown v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 26, 2023

Issue:

Whether retroactive application of Act 111 is unconstitutional?

Background:

In 2011, Claimant suffered an injury during the course and scope of her employment with Employer when she fell and hit her right arm on a step.  For this injury, she received weekly TTD benefits. In 2020, there was an Impairment Rating Evaluation (IRE) pursuant to Act 111 of 2018.  The Claimant had a whole person impairment rating of 30%, based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, Second Printing (AMA Guides).  Employer filed a Modification Petition and the WCJ granted Employer’s Petition and modified benefits to partial as of the IRE date.   The Board affirmed the WCJ’s decision.

Holding:

The constitutionality of Act 111 was upheld by the Court in Pennsylvania AFL-CIO, finding that it was not an unconstitutional delegation of legislative authority. Specifically, this Court held the amendment to the Act providing for IREs did not violate the state constitutional restriction on delegation of the General Assembly’s legislative authority.   Further, it is clear that the General Assembly intended for the 104-week and credit weeks provisions of Act 111 to be given retroactive effect.

Affirmed.

 

 

Nancy Mastrome v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 11, 2023

Issue:

Whether the WCJ correctly reinstated Claimant’s TTD status effective the date she filed her reinstatement petition, or whether her TTD status should have been reinstated as of the date of the earlier IRE modification?

Background:

In 2001, Claimant was injured in a motor vehicle accident during the course and scope of her employment as a bicycle patrol police officer with the City of Philadelphia (Employer). Employer issued an Amended Notice of Compensation Payable (NCP).  In 2012, Claimant underwent an IRE pursuant to former Section 306(a.2) of the Workers’ Compensation Act which resulted in a total whole-person impairment rating of 5% (which met the less than 50% requisite).  Employer filed a petition for modification of benefits based upon the IRE. Thereafter, the parties stipulated to a modification of Claimant’s benefit status from TTD to TPD effective May 21, 2012. By a Decision and Order circulated on October 24, 2012, the WCJ approved the Stipulation reducing Claimant’s benefits to TPD status.  On July 31, 2019, Claimant filed a reinstatement petition seeking a return to TTD status effective July 31, 2019 based upon the Supreme Court’s decision in Protz II.  On February 2, 2021, the WCJ granted Claimant’s reinstatement petition, reinstating Claimant’s TTD status effective July 31, 2019, the date the reinstatement petition was filed, pursuant to Whitfield.  Claimant then appealed to the Board, arguing that her reinstatement of benefits should have been effective as of the May 21, 2012 modification date.  The Board affirmed.

Holding:

The Court has repeatedly declined to give full retroactive effect to Protz in circumstances, such as this, where the claimant was not actively litigating the change in her disability status at the time Protz was decided. Consistent with this precedent, Claimant’s disability status was properly reinstated to TTD as of the date she filed her reinstatement petition.

Affirmed.

 

 

MODIFICATION BASED ON LABOR MARKET SURVEY/EARNING POWER ASSESSMENT

 

City of Pittsburgh v. Rosemary Borelli (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 20, 2023 

Issue:

Whether the WCJ evaluated Employer’s Modification Petition using the proper standards?

Background:

Claimant was working for Employer as a police officer when she sustained an injury on June 28, 2016.  Employer acknowledged the injury as a thoracic and cervical strain.  Subsequently, Employer issued Heart and Lung Act benefits, in which it expanded the injury description to include a strain of the left shoulder. After a brief period of receiving Heart and Lung benefits, Claimant began receiving temporary total disability benefits. Employer filed a Modification Petition based on an Earning Power Assessment (EPA) which found Claimant to be physically able and qualified to perform several jobs. The parties also submitted several Review Petitions.  The WCJ concluded that Claimant had restored her earning power with such a job in the amount of $420.00 per week. The WCJ declined to consider the other positions found by the Labor Market Survey/EPA, which the WCJ found to be too speculative.  The WCJ granted the Modification Petition, and reduced Claimant’s benefits by $420.00. The Board affirmed.

Holding:

The WCJ credited expert opinion testimony that jobs within Claimant’s physical and vocational capabilities were available in Claimant’s local area, and modified Claimant’s benefits accordingly.  The WCJ is not required to determine whether Claimant followed through in good faith on the referrals, which is a question that became largely obsolete following the passage of Act 57. Under Section 306(b)(2), it was not even necessary in the first place for Employer to investigate whether Claimant had applied for the positions found by the LMS/EPA.  When an employer seeks to establish a claimant’s earning power through expert testimony on jobs open and available to the claimant, the employer must still convince the factfinder that positions within the injured worker’s residual capacity are actually available. The WCJ has exclusive province over questions of evidentiary weight and is free to accept or reject the testimony of any witness, in whole or in part. Thus, the determination of whether all or any of the positions described were “actually available” lies firmly within the WCJ’s discretion. The WCJ had no duty to evaluate Employer’s Modification Petition pursuant to the Kachinski standard, but only in accordance with Section 306(b)(2) of the Act. Furthermore, the WCJ was within his discretion to accept or reject the LMS/EPA testimony that job positions other than the security officer position were open and available to Claimant. The WCJ’s explanation of that determination was adequate for the purpose of issuing a reasoned decision pursuant to Section 422(a) of the Act. Accordingly, we affirm the Board’s order.

Affirmed.

 

 

OCCUPATIONAL DISEASE – LIABLE EMPLOYER

 

City of Chester v. John Gresch and Nether Providence Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decision: July 6, 2023

Issue:

Whether the Board erred in its application of the “liable employer” doctrine, because the Township was the more recent employer to expose Claimant to a group 1 carcinogen.

Background:

Claimant worked for the City as a firefighter for approximately 37 years, from May 28, 1977, to April 1, 2014, eventually achieving the rank of battalion chief.   Following his retirement, Claimant began to work as a fire marshal for Nether Providence Township (Township) and has worked for the Township since September 10, 2015. In November 2017, Claimant was diagnosed with kidney cancer. Claimant filed a claim petition against the City, alleging that he had developed kidney cancer after exposure to carcinogens while working as a firefighter for the City.  The City denied liability and filed a petition for joinder against the Township. The WCJ granted Claimant’s petition against the City, and denied the City’s petition to join the Township, concluding that the Township was not liable for Claimant’s cancer.  The City appealed to the Board, which affirmed.

Holding:

Section 301(c)(2) of the Act, 77 P.S. §411(2), states that where a claimant works for more than one employer for a period of more than one year, the liable employer is the employer which last exposed a claimant to the occupational hazard.  However, if a claimant’s exposure occurred while employed by multiple employers, only one employer will be liable. Further, if the actual exposure to the hazards of an occupational disease, at these multiple employers, is less than one year, then the liable employer will be the employer that exposed the claimant to those hazards for the longest period.   Claimant was employed by the City and the Township during the 300 weeks prior to his diagnosis of kidney cancer.  Although Claimant worked for the Township more recently, for two years immediately preceding his diagnosis, Claimant credibly testified that he responded to six or seven fires in total while employed by the Township. In contrast, Claimant responded to 12 fires per month while employed by the City. It was therefore obvious that Claimant’s actual exposure to the relevant group 1 carcinogens was far greater while employed by the City than the Township. Thus, the City was liable for the payment of Claimant’s workers’ compensation benefits.

Affirmed.

 

 

PENALTY PETITION

 

Robert J. Egizio v. Consol Pennsylvania Coal Company, (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion.
Decided: July 27, 2023

Issue:

Whether the WCJ’s denial of Claimant’s Fourth Penalty Petition was an error of law?

Background:

Claimant was working for Employer as a miner when he sustained an injury to his left knee in 2014.  Employer covered Claimant’s medical expenses but did not issue a Notice of Compensation Payable (NCP) or any other Workers’ Compensation Bureau (Bureau) documents. In 2015, a physician determined that Claimant was fully recovered from his knee injury and released him back to full-duty work.  Claimant continued to receive his regular wages and work his usual number of hours following his work injury.  The WCJ accepted the testimony that Claimant had fully recovered from his 2016 injury. The WCJ suspended Claimant’s benefits for the 2014 injury and terminated benefits for the 2016 injury. The WCJ denied all three Penalty Petitions, concluding that Employer did not violate the Act.  The Board regarded the WCJ’s suspension of Claimant’s benefits for the 2014 injury as legal error and modified the decision to reflect that Employer was entitled to a termination of benefits for both the 2014 and 2016 injuries.  On appeal to the Court, the Court agreed with Claimant that the WCJ’s decision to suspend Claimant’s benefits for the 2014 injury was supported by the evidence and that the Board erred in terminating Claimant’s benefits and reinstated the WCJ’s suspension.  The Court agreed that partial disability benefits were not due.  There was no appeal.  While the above petitions were on appeal before the Board, Claimant filed a fourth Penalty Petition in 2020.  Claimant alleged that Employer violated the Act by failing to pay partial disability benefits following his 2014 injury. The WCJ concluded that Employer had not committed a violation of the Act.  The Board affirmed, concluding that Employer cannot be penalized for failing to pay wage loss benefits for a non-existent wage loss.

Holding:

The WCJ’s denial of this fourth Penalty Petition does not contradict the WCJ’s previous finding that Claimant worked with a wage loss after the 2014 injury. Claimant was not entitled to partial disability benefits when that decision was issued.  While it is true that the WCJ’s 2019 decision found Claimant to have worked with a wage loss, the decision was inconsistent on that question.  The WCJ’s decision therefore created a discrepancy, which the Board resolved by holding that the finding of a wage loss was in error.  The Court agreed with the Board that Claimant’s wage loss was “nonexistent”, and Claimant did not seek to appeal from that earlier decision, which is now final. The WCJ correctly concluded that, in the light of this Court’s and the Board’s prior decisions, it is impossible to find that there was a violation of the Act, let alone to award the payment of any benefits or penalties.

Affirmed.

 

 

YELLOW FRIEGHT MOTION

 

Alvin Hollis v. C&R Laundry Services LLC (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: July 31, 2023

Issues:

Whether the WCJ erred by determining that the left rotator cuff pathology injury was not well-pled in his Claim Petition?  Whether the WCJ erred by finding that Claimant fully recovered from his work injuries?

Background:

Claimant filed a Claim Petition against C&R Laundry Services, LLC (Employer) alleging that he sustained a work-related injury while in the course of his employment as a truck driver. Claimant alleged that he sustained a left rotator cuff pathology/cervical left side radiculopathy, cervical, thoracic, lumbar sprain/strain.  Claimant’s counsel made a Yellow Freight motion to have all facts alleged in the Claim Petition deemed admitted because of Employer’s failure to file a timely answer. The WCJ granted the Yellow Freight motion and ordered that Temporary Total Disability (TTD) benefits be paid for the period of August 6, 2019, through October 16, 2019.  The WCJ found Claimant not credible with respect to the continuation of ongoing symptoms after his IMEs with Employer’s medical experts.  The WCJ admitted all well-pled facts in the Claim Petition and recognized that Claimant was entitled to a rebuttable presumption of the continuation of his alleged ongoing disability. The WCJ determined that Claimant’s “left rotator cuff pathology” was not a well-pled fact, as it was not a medical diagnosis, and, thus, was not legally sufficient or definitive of Claimant’s alleged shoulder injury. Claimant needed to present competent medical evidence to sustain his burden of proof about his alleged shoulder injury. The WCJ determined that Employer rebutted Claimant’s allegation of a left rotator cuff pathology and left rotator cuff tendinopathy from the work injury and established Claimant’s experience of a shoulder strain and sprain and recovery.  Claimant filed a timely appeal with the Board, which affirmed.

Holding:

Although the body part of the injury is well-pled, the injury itself is not. Claimant did not define the “pathology” or provide a medical diagnosis in his Claim Petition. Claimant merely described his condition as “pathology,” which “deals with all aspects of disease, but with special reference to the essential nature, the causes, and development of abnormal conditions, as well as the structural and functional changes that result from the disease processes.” Whether it is a disease or injury, “left rotator cuff pathology” can be any number of conditions, such as tendinopathy or bursitis, tear or sprain, which are different medical diagnoses.  Thus, the WCJ did not err in concluding that “left rotator cuff pathology” was not a well-pled allegation.   Because “left rotator cuff pathology” was not well pled, Claimant was not entitled to a presumption of ongoing disability related to this injury under Yellow Freight. The burden remained with Claimant to prove the existence of the shoulder injury or disease, the work-related cause, and ongoing disability. Employer could rebut any allegations of a left shoulder injury.

Affirmed.

 

 

JUDICIAL DISCRETION

 

Jeffrey Rice v. Spirac USA, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 3, 2023

Issue:

Whether the WCJ’s decision was based on competent evidence, capriciously disregarded evidence, and was manifestly unreasonable?

Background:

Claimant is a Regional Sales Manager for Employer. Claimant allegedly contracted necrotizing fasciitis by an exposure to Escherichia coli (E. coli) bacteria while on a one-day overnight business trip to Little Rock, Arkansas.  The WCJ denied the Claim Petition, concluding that Claimant failed to meet his burden of persuasion, particularly as to the timing of the bacterial exposure.  The Board affirmed.

Holding:

A medical expert’s opinion is not rendered incompetent unless it is based solely on inaccurate information.  Contrary to Claimant’s assertions, employer’s expert’s testimony and report were both internally consistent, consistent with each other, and fully supported by the medical records reviewed. Concerning whether the expert disregarded, or did not know, particular facts, that goes to the weight given the expert’s testimony, not its competency.  If the testimony is sufficiently definite and unequivocal to render it admissible, it is competent.  The WCJ noted that the relevant infection, necrotizing fasciitis, with sepsis, requiring amputation of the right leg above the knee, was not in dispute. The issue was whether the infection was initiated by an E.coli exposure during the one-day trip to Arkansas. No incident is asserted, and, while environmental factors have been presented, the determinative causal factor is medical in nature. The WCJ is the ultimate factfinder and is empowered to determine witness credibility and evidentiary weight. The WCJ, therefore, is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses.  The WCJ made it clear that he did not believe Claimant contracted E. coli in Arkansas because he believed the medical testimony that, based on the medical evidence, Claimant contracted E. coli before his trip to Arkansas. Substantial evidence supported the WCJ’s findings. Accordingly, the WCJ’s credibility rationale was supported by the record as a whole.  The WCJ’s decision was not manifestly unreasonable.  A capricious disregard only occurs when the WCJ deliberately ignores relevant, competent evidence. Where there is substantial evidence to support a WCJ’s factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon capricious disregard.

Affirmed.

 

 

Tradesmen International, LLC, et al. v. Demetrius Brown (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: July 14, 2023

Issues:

Whether Claimant’s medical rendered a legally sufficient opinion that Claimant’s work-related injury was the cause of his disability and incorrectly shifted the burden of proof on the issue of causation to Employer?

Background:

Claimant worked as a plumber for a Contractor, who subcontracted him to Employer. While working, Claimant tripped and fell when walking up some steps at a job site and was injured.  He continued to work for the rest of his shift that day.  He did not report the incident when it happened because he did not think he had suffered a major injury.   He continued to work the following week with pain.  About 5 days later, he reported to the emergency room (ER) at Abbington Hospital because his right hand was swollen.  He had developed an infectious tenosynovitis in the tendons of his fourth and fifth fingers and underwent surgery.  Claimant then reported his injury to Employer’s foreman. Employer issued a Notice of Compensation Payable (NCP) on March 31, 2020.  On April 23, 2020, claimant submitted a Claim Petition seeking full disability benefits from February 21, 2020, and ongoing.  The WCJ granted the Claim Petition in part. The WCJ ordered Employer to pay Temporary Total Disability (TTD) benefits from February 21, 2020, until June 26, 2020, which is the date the WCJ found claimant was fully recovered from his work injury. The Board affirmed.  Employer appealed.

Holding:

The WCJ carefully considered and weighed the expert medical testimony on causation, and the Board did not err when it affirmed the WCJ in this regard.  The Board did not err in accepting claimant’s evidence.  Questions of credibility, conflicting medical evidence, and evidentiary weight fall within the WCJ’s authority, and the WCJ is free to accept the testimony of any witness, including medical witnesses, in whole or in part. When faced with conflicting evidence, the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence.  The WCJ discussed why he accepted some testimony and rejected other testimony. He carefully parsed out portions of testimony he found credible, and those he did not. The WCJ did not incorrectly shift the burden of proof on causation to Employer. While the WCJ found that Employer’s expert did not provide a viable opinion on causation, the WCJ also acknowledged Employer did not carry this burden.  Thus, the WCJ concluded Brown met his burden of proof regarding causation and did not improperly shift the burden of proof to Employer.

Affirmed.

 

 

UPMC Pinnacle Hospitals v. Renee Orlandi (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 21, 2023

Issues:

Whether the Board erred by affirming the WCJ in expanding the description of Claimant’s work injury because the causation testimony was equivocal and therefore incompetent? Whether the Board erred by failing to rule on its objections?  Whether the Board erred by interpreting the WCJ’s order as intending to award Claimant wage loss benefits from the date of the surgery?

Background:

Claimant sustained a work-related injury. Employer issued a medical-only Notice of Temporary Compensation Payable (NTCP) accepting a left shoulder sprain.  Employer filed a termination petition asserting that Claimant fully recovered from her injuries per an independent medical examination (IME). Claimant filed a review petition seeking to expand the description of injury.  The WCJ granted Claimant’s review petition and denied Employer’s termination.  The Board modified the description of injury to be consistent with claimant’s expert’s diagnoses. The Board noted that even if the WCJ erred in accepting claimant’s expert’s testimony, it would be harmless error since Claimant’s testimony relating her condition to her work duties was also found credible and an exacerbation of her cervical issues was an obvious injury.  Finally, the Board noted that even though the WCJ had not expressly awarded Claimant wage loss benefits in his decision, the order’s language indicated that the WCJ clearly intended to do so as of when she went out of work for her surgery.

Holding:

Claimant’s Doctor’s Causation Testimony:  Medical testimony is unequivocal if a medical expert testifies, after providing foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists. However, there are no magic words that a doctor must recite to establish causation.  Based on the evidence as a whole, Claimant’s medical causation testimony was competent.  He consistently related her condition to her work duties and did not express uncertainty that her condition was related to her work duties.  Once he knew of Claimant’s work duties, he did not opine that any of the other possible causes were equally or more likely to be the cause than her work duties.  To the extent that the causation testimony relied on a belief that Claimant had no prior left shoulder issues, a doctor’s assumptions, even if based on incomplete information, will not invalidate their testimony if their conclusions are supported in the record and therefore borne out by other evidence. There is an accepted injury and Claimant’s review petition burden was to establish the greater extent of her injury and its work-relatedness, not to establish a work-related injury in the first place.

Employer’s Objections to Claimant’s Causation Testimony:  The WCJ did not include Employer’s objections in the exhibit list at the beginning of his decision and did not address them in the decision.  Any error in this regard by the WCJ was harmless because the testimony was ultimately deemed credible and persuasive. This causation testimony was competent, supported by the record, and found credible and persuasive by the WCJ, who would have had discretion to deny Employer’s objections had they been properly preserved.  Employer’s objections are therefore both waived and meritless.

Claimant’s Eligibility for Wage Loss Benefits:  The WCJ’s decision did not expressly award Claimant wage loss benefits. However, the WCJ credited the testimony that Claimant’s surgery, which ultimately took her out of work, was due to her accepted work-related injury.  The correction of the “error” here did not require a change in the WCJ’s factual or legal analysis or additional factual findings or conclusions of law. There was no need to litigate wages in this matter.  Employer was on notice that Claimant would be undergoing surgery attributed to the work injury and would be out of work for a period of time to heal.  The record as a whole supports that determination as well as the reasonable inference that Claimant’s ensuing three months of disability were also due to her injury.

Affirmed.

 

 

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES

07/01/2023 – 07/31/2023

 

LIABILITY OF A LICENSED ENTITY

 

Morona S. Construction, LLC v. The Diamond Agency, LLC et. al.
Superior Court of New Jersey, Appellate Division
No. A-3918-21; 2023 WL 4540402
Decided: 07/14/2023

Background:

Plaintiff’s complaints alleged that it had procured liability and workers’ compensation insurance from Lambrus Ciuia for several years. Ciuia was employed by Diamond and was believed to be a licensed insurance agent. Plaintiff stated that Ciuia would renew policy coverages. On September 24, 2020, two of plaintiff’s employees were injured and when plaintiff sought coverage from Travelers in defense of its employees’ workers’ compensation petitions, Travelers denied the request, claiming that the last policy issued to plaintiff expired in April 2019.

Plaintiff’s complaint sought declaratory judgment against Travelers to compel defense of the workers’ compensation petitions, and alleged Diamond and Ciuia were negligent in failing to procure the appropriate insurance. Travelers’ answer asserted a counterclaim that plaintiff did not pay the required deposit premium for the policy renewal making the policy expire on its own terms in April 2019.

Defendants’ answer asserted that the Affidavit of Merits Statute (AMS) was an affirmative defense and they moved to dismiss the complaint based on plaintiff’s failure to serve an affidavit of merit (AOM). Plaintiff filed a cross-motion alleging discovery violations and seeking to amend the complaint. This amended complaint was identical to the original except it included an additional count for breach of contract.

The judge sent counsel a letter a few days after oral argument directing them to take limited discovery on the licensure status of Diamond. Defendants supplied the certification of Henry Pareja, the owner of Diamond, which established Diamond’s licensure status. Pareja was deposed, and three days later, plaintiff moved to file a different amended complaint naming Pareja as a defendant. The judge heard oral argument on defendant’s motion to dismiss and plaintiff’s cross-motion to amend the complaint. He issued a decision on May 2, 2022, dismissing plaintiff’s complaint for failure to file an AOM, and denying plaintiff’s motion to amend.

Plaintiff moved for reconsideration and Travelers filed a brief supporting the motion with respect to the dismissal of the complaint against Ciuia. The judge issued a June 28, 2022 order partially granting the motion for reconsideration by reinstating the complaint only to the liability of Ciuia. This court granted plaintiff leave to appeal from the May order. Plaintiff argues the judge erred in dismissing the complaint against Diamond because it sought to hold Diamond vicariously liable under a theory of respondeat superior, and therefore an AOM was not required.

 

Holding:

The court agrees that plaintiff’s initial complaint can be read as asserting vicarious liability against Diamond under respondeat superior, and that no AOM was required because of the common knowledge exception to the AMS. The court also concludes that the judge mistakenly exercised his discretion in denying plaintiff’s motion to amend.

This court held that in granting defendant’s motion to dismiss, the judge concluded that plaintiff plead the case as a direct negligence claim and not as a vicarious liability claim. However, the court believes that the judge’s interpretation of the complaint was too conservative, and he misapplied the standard for a motion to dismiss. The court holds that in reviewing the complaint’s factual allegations it adequately sets forth a cause of action against Diamond under a respondeat superior theory of liability.

This court then does an analysis of the Haviland case recently decided by the state Supreme Court, which considered whether a plaintiff has to submit an AOM in support of a various liability claim against a licensed entity, based on the alleged negligent conduct of an employee who is not a licensed entity under the AOM statute. The court in Haviland concluded that the plaintiff’s injuries were alleged to have occurred from the negligence of a person who was not a licensed person under the AMS, stating the AOM statute does not require the submission of an AOM to maintain a vicarious liability claim against a licensed healthcare facility based on the conduct of its non-licensed employees.

This court stated that Haviland did not control here, as radiologists like the defendant in Haviland are not licensed persons under the AMS, but insurance producers like Ciuia are. The court held that because plaintiff’s claim against Ciuia was for negligence by a licensed person in his profession, the AMS mandated that the plaintiff serve an AOM even though its claim against Diamond was based on the theory of respondeat superior, unless an exception applies, as it does in this matter.

This court held that the common knowledge exception to the AMS applies only when expert testimony is not needed to prove a professional defendant’s negligence. Therefore, at this stage, a lay person was capable of understanding plaintiff’s allegations that defendants furnished a certificate of insurance demonstrating renewed coverage for the calendar year as they had for several years prior to 2020 but the coverages were not in place, without expert testimony. This court reversed the order dismissing plaintiff’s claim for failure to comply with the AMS.

This court then addressed plaintiff’s amended complaint. The original judge denied plaintiff’s motion to file an amended complaint that added a count against Diamond and Pareja for negligent supervision of Ciuia and a count for breach of contract because it would be futile given the failure to file an AOM. This court disagrees and reverses.

The judge denied the motion to amend based on his conclusion that an AOM was necessary to support the negligence claim and amending the complaint was futile because an AOM was not filed in a timely manner, however, since this court concluded that the negligence claim did not need an AOM, the denial of the amendment relied on an impermissible basis and a mistaken understanding of the applicable law. Therefore, the court reversed the order denying plaintiff’s motion to amend the complaint without addressing the merits of the new claims.

Finally, this court ordered that if, upon remand, plaintiff files the proposed amendment asserting a direct claim for negligent hiring, training, or supervision against Pareja and Diamond, the court shall conduct a Ferriera conference to decide whether plaintiff is required to file and serve an AOM to support the cause of action.

Reversed and Remanded.

CASE SUMMARIES 6/1/2023 – 6/30/2023

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES

6/1/2023 – 6/30/2023

 

TERMINATION PETITION

Monifa Holmes v. Bayada Home Health Care, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 29, 2023

Issue:

Whether the WCJ relied on substantial evidence in finding that there was a full recovery?

Background:

Claimant injured her left shoulder while in the course and scope of her employment as a nurse for Employer. Employer issued a Temporary Notice of Compensation Payable (TNCP) accepting Claimant’s injury in the nature of a left bicep strain. Claimant’s injury was redefined in the WCJ’s 2017 decision as a status post debridement of a superior labrum from anterior to posterior (SLAP) lesion and biceps tendonesis. In 2020, Employer filed its Termination Petition alleging that Claimant had fully recovered from all work-related injuries as of the IME date.  The WCJ issued a decision in which she found Claimant’s testimony as to ongoing disability neither credible nor persuasive and found employer’s expert more credible and persuasive than claimant’s expert.  The WCJ found as fact that Claimant was fully recovered from this work-related injury effective the date of the IME.

Holding:

Claimant took issue with the WCJ’s use of the term “EMG” in place of the term “FCE.”  The Court however found that such was merely a typographical error, based upon an examination of the decision as a whole. The WCJ was clearly aware of the correct procedure upon which the expert relied and the WCJ’s error in this regard was harmless.  The WCJ was free to accept as credible deposition testimony and reports that Claimant only sustained a work-related injury in the nature of “a status post debridement of a SLAP lesion and biceps tenodesis,” and that any resolved left rotator tendinitis was not attributable to her work-related injury. The limited description of Claimant’s work-related injury as found in the WCJ’s 2017 decision and 2021 decision, not relating any resolved left rotator tendinitis to her work-related injury, is amply supported by 2017 deposition testimony and reports. In addition, the later IME opinion that Claimant had sustained a left biceps strain and SLAP lesion of the left shoulder as a result of her work injury, consistent with the WCJ’s 2017 decision, and that she had fully recovered from all of the work-related injuries at the time of the IME, is likewise supported by substantial, competent evidence.

Affirmed

 

 

Derek Everage v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 23, 2023

Issue:

Whether Employer met its burden of proving, in a subsequent termination petition, that Claimant fully recovered from his work-related injury?

Background:

Claimant was diagnosed with an abdomen/groin strain, for which he underwent right inguinal hernia surgery repair.  Employer issued a Notice of Temporary Compensation Payable, pursuant to which it paid Claimant total disability benefits.  Claimant later returned to full-duty work with Employer and felt a pop in his lower abdomen and pain like he experienced with his initial work injury. Claimant was diagnosed with inguinal hernia repair status post-surgery and related back pain resulting from his initial work injury and was disabled from his time-of-injury job.  Claimant filed a Reinstatement Petition. Employer filed a Termination Petition.  The WCJ denied Employer’s Termination Petition on the basis that Employer failed to prove that Claimant was fully recovered from his work injury and dismissed Claimant’s Reinstatement Petition as moot.  In 2020, based on a new IME, Employer filed a new Termination Petition.  The WCJ granted the Termination Petition.  Claimant appealed to the Board which affirmed the WCJ.

Holding:

Where there have been prior petitions to terminate benefits, the employer must demonstrate a change in physical condition since the last disability determination.  The evidence necessary to prove a change since a prior adjudication is different in each case.  By accepting the employer’s medical evidence of full recovery as credible, a WCJ could properly make a finding that the employer has met the standard of a change in the claimant’s condition.  The WCJ’s finding may be based upon a review of evidence that pre-dates the prior adjudication plus a post-adjudication examination. It is not necessary for the employer to demonstrate that a claimant’s diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment.  A change sufficient to satisfy the requirement exists if there is a lack of objective findings to substantiate a claimant’s continuing complaints.  Although the WCJ did not reference the standard or make a specific finding that Claimant’s condition changed since the last adjudication, by accepting Employer’s medical evidence of Claimant’s full recovery as credible, the WCJ properly made a finding that Employer met the standard of a change in Claimant’s condition.

Affirmed.

 

 

AVERAGE WEEKLY WAGE CALCULATION

 

Anthony L. Barnes v. School District of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 26, 2023

Issue:

Whether the Board and the WCJ erred as a matter of law in reducing Claimant’s total disability benefits by the amount of his AWW at a concurrent employer as of the date the WCJ found that he had recovered fully from another First Injury?

Background:

This case involved the payment of benefits pursuant to the WC Act for two work-related injuries sustained by Claimant while working at two separate, but concurrent, employments. In 2018, Claimant was employed by both Employer and Comhar.  Claimant was first injured on February 21, 2018, during his employment with Comhar as a home health aide (First Injury). On February 26, 2018 Claimant sustained a second injury while working for Employer as a food service manager (Second Injury). Claimant thereafter began receiving compensation benefits through Employer.  WCJ granted a Claim Petition against Comhar for the period from February 22, 2018, through February 11, 2019. With regard to Claimant’s First Injury, the WCJ found that Claimant sustained the First Injury on February 21, 2018, but also found that the First Injury was fully resolved as of February 12, 2019.  Regarding the Second Injury, the WCJ found that Claimant sustained an aggravation of the First Injury, which continued.   Specifically, the second injury occurred on February 26, 2018 while employed with Employer and was an aggravation of the lumbar strain and sprain injury he sustained in the first injury thereby temporarily totally disabling Claimant from his job duties with Comhar beginning February 26, 2018 and Employer beginning February 27, 2018.  The WCJ awarded workers’ compensation benefits based on Claimant’s average weekly wages from both Comhar and Employer and suspended Comhar’s payment of benefits for the period between February 22, 2018 and February 12, 2019. The WCJ further reduced Claimant’s benefits based on the average weekly wage for just the employment with Employer, effective February 12, 2019, based on the finding that he had recovered fully from the First Injury as of that date.  Claimant appealed the WCJ’s reduction of his workers’ compensation benefit amount to the Board. The Board affirmed.

Holding:

Where a claimant holds more than one job at the time of a work-related injury, the AWW must be calculated based on the wages from all of his or her jobs, whether the claimant is disabled from the other jobs or not.  Where the claimant is not disabled from the other jobs, however, it is proper to place the claimant on partial disability, reducing the total disability benefit by the wages earned from the jobs from which the claimant is not disabled.  The WCJ and the Board erred in subtracting Claimant’s Comhar wages from his workers’ compensation average weekly wage and benefit rate beginning February 12, 2019.  Although Claimant sustained the First Injury while employed at Comhar, Claimant intended to return to work at Comhar on February 26, 2018. He was prevented from doing so not because of the First Injury, but because of the Second Injury, which he sustained while working for Employer.  The controlling factor is whether Claimant remains disabled from his jobs at both employers.  It is undisputed in the record that Claimant’s disability from both Comhar and Employer was caused by the Second Injury. It also is undisputed that the Second Injury, which includes an aggravation of the First Injury, continues. The WCJ accordingly concluded that only Employer is responsible for payment of disability benefits beginning February 26, 2018.  Claimant’s “recovery” from the First Injury is irrelevant to the calculation of workers’ compensation benefits to be paid by Employer.  It was not the First Injury, but its later aggravation in the Second Injury, that rendered Claimant disabled from both employers.   For that reason, his disability benefits should not have been reduced for any wages previously earned at Comhar; that reduction would not reflect the “economic reality” of Claimant’s earning experience. Claimant should be paid for loss of wages from both employments.

Reversed

 

 

UNCONSTITUTIONAL DELEGATION

City of Philadelphia v. Joseph Healey (WCAB)
Commonwealth Court of Pennsylvania – Reported En Banc Opinion
Decided: June 21, 2023

Issue:

Whether a claim made pursuant to Section 108(r) of the Workers’ Compensation Act can be based on a carcinogen that was designated as Group 1 by the International Agency for Research on Cancer (IARC) after Act 46 became law on July 7, 2011, thus constituting an unconstitutional delegation of the General Assembly’s legislative authority?

Background:

Employer hired Claimant as a firefighter in 2003. In June 2016, Claimant underwent medical testing which revealed a mass on his kidney. Claimant was diagnosed with clear cell renal carcinoma.   On May 31, 2019, Claimant filed the Claim Petition asserting that his employment as a firefighter, fighting house, residential, and car fires, for 13 years exposed him to pressure treated wood, diesel fuel emissions, inorganic arsenic, and soot, plus diesel fuel emissions at firehouses and firegrounds from the fire apparatus which caused his kidney cancer.  Employer issued a Notice of Compensation Denial, indicating that Claimant did not sustain a work-related injury or disease.  Employer agreed to Claimant’s allegations as averred in his Claim Petition but contested causation. Claimant’s expert opined that Claimant’s exposure to arsenic, asbestos, diesel fumes and TCE was the major occupational risk factor for developing kidney cancer.  When Act 46 was enacted in 2011, TCE was listed in Group 2a as a substance “probably carcinogenic to humans.”  However, in 2014, based on new data that TCE exposure caused kidney cancer, IARC reclassified TCE as a Group 1 carcinogen.  The WCJ granted the Claim Petition finding credible the expert testimony that Claimant’s clear cell renal carcinoma was caused by his cumulative exposures to asbestos, arsenic, TCE, PAHs, diesel fuel emissions, and soot over 13 years.  Employer appealed to the Board, which affirmed.

Holding:

Based on the evidence the WCJ found credible, TCE was among the dangerous substances to which Claimant was exposed as a firefighter and the cumulative exposure to all of the chemicals over 13 years caused his kidney cancer. In addition, Claimant’s evidence established that he was diagnosed with a type of cancer caused by exposure to a known Group 1 carcinogen.  Claimant did not have to prove that his TCE exposure actually caused his cancer. Accordingly, there existed substantial record evidence for the WCJ to award Claimant workers’ compensation benefits under Section 108(r) of the Act.  Unlike Protz, in Section 108(r) of the Act, the General Assembly merely established the IARC’s Group 1 listings as the evidentiary standard for claimants’ statutory presumption that weeds out workers’ compensation claims for cancer with no known link to Group 1 carcinogens.  A claimant does not automatically receive workers’ compensation benefits merely because the IARC listed it as a Group 1 carcinogen. A claimant still has the burden to prove that he was exposed to such a substance and that the substance has been linked to his type of cancer.  Accordingly, despite that TCE was not listed as a Group 1 carcinogen when Act 46 was enacted, Claimant’s medical expert testified that medical studies and documentation evidenced TCE’s known link to kidney cancer.  Neither the Board nor the Court may reweigh the evidence or the WCJ’s credibility determinations and the WCJ’s findings will not be disturbed if they are supported by substantial, competent evidence.  Viewing the evidence in Claimant’s favor, substantial evidence supported the WCJ’s conclusion that Claimant proved his entitlement to workers’ compensation benefits.

Affirmed.

 

 

ENTITLEMENT TO WAGE LOSS

 

Intertek USA, Inc. v. Amol Hate (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 14, 2023

Issue:

Whether the WCJ and the Board erred as a matter of law by failing to limit the benefits owed to Claimant based upon his termination for cause and ability to work in a light duty capacity?

Background:

Claimant worked in Employer’s petroleum inspection division. His duties included inspecting products coming into and leaving refineries.  He collected samples by climbing a 40- to 60-foot tank and using his arms to dip and fill a glass bottle. In October 2019, Claimant started to have pain in his right shoulder. He began treating for the injury and missing time from work.  In July 2020, Claimant was driving from Pennsylvania to Maryland for work, and he stopped to get a coffee at a convenience store. During that stop, another vehicle struck Claimant’s car in the parking lot. Claimant reported the accident to his Employer. On July 15, 2020, Claimant was advised to have shoulder surgery. On July 16, 2020, Claimant informed Employer he would be out of work for three to four months for surgery. On that same day, Employer terminated Claimant’s employment because of the July 2020 car accident.  Claimant filed a Claim Petition alleging he sustained a right shoulder injury due to cumulative trauma from his work with Employer.  He sought ongoing total disability benefits beginning July 16, 2020, the day Employer terminated his employment.  Employer issued a Notice of Compensation Denial (NCD).  The WCJ granted Claimant’s Claim Petition. The WCJ found Claimant was entitled to ongoing indemnity benefits, except that the WCJ found Claimant was not entitled to indemnity benefits from July 16, 2020, through the date of his surgery, because Claimant was fired for cause.  The Board affirmed the WCJ.

Holding:

The WCJ credited Claimant’s testimony of his inability to lift anything with his right hand because of the pain in his shoulder.  The WCJ found Claimant’s “injury of repetitive trauma” resulted in disability as of the date of his surgery.  The WCJ did not find Claimant eligible for benefits as of July 16, 2020, because from the date of his termination until his surgery, Claimant’s loss of earning power was due to his termination, not a disability.  However, after his surgery, Claimant was fully disabled and unable to perform his previous job.  The WCJ relied upon substantial evidence to find Claimant suffered an injury of repetitive trauma, the injury was related to his work with Employer, the injury ultimately resulted in disability, and the disability continued.  Further, because Claimant’s disability continued, the WCJ and Board did not commit an error of law by failing to limit Claimant’s indemnity payments based upon his termination for cause or his clearance to perform light-duty work.

Affirmed.

 

 

RES JUDICATA AND COLLATERAL ESTOPPEL

 

Dave Scavello v. Wal-Mart Associates, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 26, 2023

Issue:

Whether the Board erred in affirming the WCJ’s conclusion that res judicata barred the Petitions?

Background:

On March 16, 2016, Claimant, while working for Employer, sustained a work-related injury to his right hand/wrist in the nature of a contusion. Employer accepted liability for Claimant’s work-related injury by issuing a medical-only notice of compensation payable (MO-NCP), which described the accepted work-related injury as a right-hand contusion.   On August 18, 2016, Employer filed a termination petition, alleging that Claimant had fully recovered from his work-related injury. Thereafter, on September 8, 2016, Claimant filed a review petition, seeking to amend the description of his work-related injury.  The WCJ denied both the termination petition and the review petition.  Claimant did not appeal the denial of his review petition to the Board, but Employer appealed the denial of the termination petition.  The Board reversed noting that the credited medical evidence did not support a finding that Claimant had not fully recovered from his right-hand contusion. Claimant appealed, arguing the Board erred in reversing the denial of the termination petition and suggesting the WCJ erred in denying the review petition. The Commonwealth Court disagreed.  The Court affirmed the Board’s reversal on the Termination and indicated the denial of the review petition had not been appealed to the Board and, therefore, that petition was not before the Court.  On August 7, 2020, Claimant filed a Reinstatement Petition, a Review Petition, and a Medical Review Petition, pro se.  Citing the well-known principles of technical res judicata and collateral estoppel, which prevent the re-litigation of claims and issues previously and finally decided against a party, the WCJ held the Petitions were barred by the doctrine of res judicata.  The Board affirmed.

Holding:

The doctrine of res judicata encompasses both technical res judicata and collateral estoppel. The subject matter and ultimate issues, which are the nature and extent of Claimant’s 2016 work injury and whether Claimant suffered a wage loss from his concurrent employment, were the same in both the old and new proceedings.  Further, the resolution of these issues was necessary to the final judgment in the earlier litigation.  Finally, Claimant did not appeal the earlier Decision.  This Court’s affirmance of the Board’s order in the earlier litigation is the final judgment on the issue of whether Claimant was fully recovered.

Affirmed

 

 

IMPAIRMENT RATING EVALUATIONS

 

Mark Burkett v. Jimi Enterprises, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 26, 2023

Issue:

Whether the provisions of Act 111, relating to Impairment Ratings, are Unconstitutional?

Background:

Claimant sustained a work-related injury in the nature of a neck strain while in the course and scope of his employment. Employer paid Claimant more than 104 weeks of temporary total disability (TTD) benefits for the injury. In 2012, Employer had Claimant undergo an IRE under the former Section 306(a.2) of the Act, which resulted in a WCJ decision granting a modification of Claimant’s benefits to partial disability as of March 15, 2012.  On June 28, 2017, Claimant filed a Petition to Review Compensation Benefits (Review Petition) seeking a change in his disability status from partial to total disability based on the Pennsylvania Supreme Court’s opinion in Protz.  In 2020, Claimant submitted to an IRE and thereafter, Employer filed the instant Modification Petition seeking to reduce Claimant’s status to partial disability.  Ultimately, the WCJ concluded that Employer met its burden of proof under its petition to establish that Claimant has less than a 35% rating for whole-person impairment under the AMA Guides, 6th Edition (second printing April 2009).  As a result, the WCJ also concluded that indemnity benefits are modified from total disability to partial disability status as of January 8, 2020.  The WCJ issued an order granting Employer’s Modification Petition; modified Claimant’s benefits to be partial in nature as of January 8, 2020; and granted Employer a credit for previous period of partial disability toward the 500 total weeks of partial disability entitlement.  Claimant appealed the WCJ’s decision to the Board.  The Board rejected Claimant’s constitutional claims, and Claimant filed this appeal.

Holding:

The plain language of the law establishes a mechanism by which employers/insurers may receive credit for weeks of compensation previously paid. Pursuant thereto, an employer/insurer will receive credit towards this 104 weeks for any weeks of total disability benefits that were previously paid prior to Act 111’s enactment. Second, any weeks of partial disability previously paid will count towards the 500-week cap on such benefits.  The Court has previously held that it is not unconstitutional.

Affirmed

CASE SUMMARIES 5/1/2023 – 5/31/2023

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES

5/1/2023 – 5/31/2023

SUBROGATION – POLICE OFFICER

Christopher Alpini v. WCAB (Tinicum Township)*
Supreme Court of Pennsylvania – Published Opinion
Decided: May 16, 2023

 

Issues:

Whether an employer that paid Heart & Lung Act (HLA) benefits is entitled to subrogation from a claim in which the employee was injured and asserted motor vehicle negligence, and Dram Shop Act-based claims?

Background:

While working for Employer as a police officer, Claimant sustained work-related injuries when an intoxicated driver (Driver) struck Claimant’s patrol car with his vehicle. Employer accepted liability for the work injury.  Employer, however, paid HLA benefits to Claimant, and Claimant signed over his workers’ compensation wage loss benefits to Employer as required by the HLA.  Claimant and his wife filed a civil action against the third-party tortfeasors responsible for Claimant’s work-related injuries.  Claimant asserted a cause of action against Driver for negligence and separate causes of action against the Tavern Owners for violations of the Dram Shop Act.  Claimant and his wife settled their claims against Driver and Tavern Owners.  Thereafter, Employer filed a modification petition, seeking subrogation from Claimant’s third-party recovery relative to Tavern Owners only.  A workers’ compensation judge (WCJ) granted Employer’s modification petition, and both Employer and Claimant appealed to the Board. The Board affirmed the WCJ’s decision but remanded the matter to the WCJ to determine the method by which Employer would be permitted to recoup its subrogation lien.  In the remand decision, the WCJ upheld the right to subrogation from the Dram shop recovery.  The Board affirmed.  A three-judge panel of the Commonwealth Court affirmed the Board’s order.

Holding:

It was undisputed that Employer paid HLA benefits to Claimant, and that Claimant signed over his workers’ compensation wage loss benefits to Employer. It was also undisputed that Section 1720 precludes an employer from subrogating its payment of HLA benefits against a claimant’s third-party recovery in an action arising out of the maintenance or use of a motor vehicle.  In 1993 the General Assembly enacted Act 44.  Section 25(b) of Act 44 repealed the provisions of the MVFRL as they related to workers’ compensation benefits, thereby reinstating an employer’s right of subrogation with respect to workers’ compensation benefits in actions arising out of motor vehicle accidents.  However, the PA Supreme court subsequently held that Section 25(b) of Act 44 did not impact any anti-subrogation mandates pertaining to HLA benefits, and the MVFRL continues to preclude an employer from subrogating its payment of HLA benefits.  Further, the PA Supreme Court has already ruled that for purposes of the MVFRL, HLA benefits subsume workers’ compensation (WC) benefits, and thus barring WC subrogation. Claimant and his wife filed a single proceeding against both Tavern Owners and Driver. It is that proceeding, as a whole, and not the individual causes of action that Claimant and his wife asserted against Tavern Owners for violations of the Dram Shop Act, that constitute the “action” for purposes of Section 1720.  Additionally, this action originated, stemmed, and/or resulted from the motor vehicle collision involving Driver’s vehicle and Claimant’s patrol car.  The Court therefore concluded that the “action” through which Claimant asserted his Dram Shop Act claims against Tavern Owners “arose out of the maintenance or use of a motor vehicle” and, therefore, Section 1720 precluded Employer from subrogating against Claimant’s settlement of such claims.  Thus, the Employer was precluded from subrogating its payment of HLA benefits against Claimant’s third-party settlement of his Dram Shop Act claims with Tavern Owners because the action that Claimant and his wife filed against Tavern Owners “arose out of the maintenance or use of a motor vehicle.”  The court noted that employers are barred from subrogating in this context regardless of whether they are self-insured or insured by a third-party insurer, thereby eradicating any such distinction that had been observed in prior cases.

Reversed.

JUSTICE DOUGHERTY FILED A CONCURRING OPINION IN WHICH JUSTICE DONOHUE JOINED.

The concurrence fully joined the majority opinion’s statutory construction analysis and the holding.  The concurrence wrote separately only to elaborate on why Section 319 of the Workers’ Compensation Act does not permit the Township to subrogate against claimant’s third-party tort recovery, regardless of whether they are self-insured or insured by a third-party insurer.

 

 

JUSTICE WECHT, DISSENTED, and CHIEF JUSTICE TODD JOINED THIS DISSENT

The dissent felt that a critical distinction was that the Township was not self-insured for workers’ compensation. The Township’s insurer sent workers’ compensation payments to Claimant, who “received or collected” them, and then turned them over to the Township as required by the HLA. The payment of workers’ compensation benefits was not merely a legal fiction.  Instead, it was a meaningful transfer of funds, by which the Township’s insurer incurred a loss.

 

*              This is a highly significant case, as it not only mandates a consideration of the legal proceedings “as a whole” when determining whether the cause of “action” arose out of the “use of a motor vehicle,” but more importantly, eradicates any distinction that may have previously existed between self-insured and insured municipalities when looking at subrogation rights in such a context.

 

 

EXCLUSIVITY

 

Elite Care, Rx, LLC v. Premier Comp Solutions, LLC, et al.
Superior Court of Pennsylvania – Published Opinion
Decided: May 23, 2023

Issue:

Whether, whenever the issues raised have, as their ultimate basis, injuries compensable under the WC Act, must they be decided by a workers’ compensation judge or a fee-review Hearing Officer, rather than the Court of Common Pleas?

Background:

Insurers offer workers’ compensation insurance to employers to cover the costs of treatment and medication under the Workers’ Compensation Act for employees who suffer work-related injuries. The employees may choose to fill their prescriptions through Patient Direct Rx, a home-delivery pharmacy. After Patient Direct Rx fills the prescriptions, certain providers purchase the claims arising from these prescriptions i.e., the right to bill and collect from the insurance carrier, from Patient Rx for fair-market value. The Providers are then legally entitled to collect payment for the prescriptions from the insurance carrier and bear the risk of collection. Elite Care (a separate entity) serves as billing agent for the Providers and ensures their accounts receivable are properly paid. Elite Care contends that, when this lawsuit began, Insurers owed $548,035.28 in prescription fees for 110 different employees and that figure continues to accrue as more bills are being improperly denied. Elite Care believed that its “exclusive remedy” was through an Application for Fee Review with the Bureau of Workers’ Compensation. When the Medical Fee Review Section began ruling in favor of Elite Care, Insurers appealed those rulings to a Fee Review Hearing Officer and argued that the Fee Review Section lacked jurisdiction over this issue of whether Elite Care was an agent of these providers.  The Hearing Officer issued opinions and orders holding that the Fee Review Section lacked subject-matter jurisdiction and advised that Elite Care may wish to pursue other remedies, which may be available outside of the fee-review process.  Elite Care filed the instant civil action.  The trial court determined this case was not a workers’ compensation matter, but rather a claim for damages based on allegations of conspiracy and fraud, and that there was subject matter jurisdiction. Insurers filed a timely Petition for Permission to Appeal the interim order, which the appellate court granted.  A three-judge panel of the Court unanimously affirmed the trial court’s decision.  The Insurers were then granted en banc review.

Holding:

Insurers attack the trial court’s subject-matter jurisdiction based upon the Workers’ Compensation Act arguing that the Bureau has exclusive jurisdiction over this matter, because the prescriptions at issue treat work-related injuries.  The Superior Court determined that, in the Armour Pharmacy case, the Commonwealth Court improperly created jurisdiction in the Bureau even though the legislature had not.  The Superior Court held that the Commonwealth Court lacked the power to graft an extra-statutory scheme onto the WCA for the benefit of the putative provider. In attempting to effectuate due process, the Armour Pharmacy Court legislated from the bench. Therefore, this Court declined to follow Armour Pharmacy, in so far as it stands for the proposition that Elite Care may or should have sought redress within the Bureau.  Thus, the Workers’ Compensation Act does not provide for an administrative proceeding by or against putative providers or their billing agents in the Bureau. Such entities have no standing there, because the WCA does not confer it upon them. That statute has not divested the original jurisdiction of the courts of common pleas over matters such as the instant lawsuit.  Elite Care is a “person” interested in certain contracts with the Providers, and, therefore, it may request declaratory relief under the Declaratory Judgment Act.  The court of common pleas is the court of record for such an action to declare rights, status, and other legal relations whether further relief is or could be claimed. Additionally, Elite Care has filed claims of fraud, civil conspiracy, and unjust enrichment. Those claims fall within the exclusive, original jurisdiction of the Court of Common Pleas. Therefore, the trial court correctly ruled that it has subject-matter jurisdiction over the common-law causes of action in this case and the statutory action for declaratory judgment.

Affirmed.

CONCURRING OPINION

The concurrence believed that the result was correct but argued that the matter should have been disposed of based upon the Court’s precedent, without a consideration of whether the Commonwealth Court’s decision in Armour Pharmacy was correct.

DISSENTING OPINION

The dissent argued that the Court should have reversed the Trial Court as the exclusivity provision of the Workers’ Compensation Act (“WCA”) makes the WCA the worker’s exclusive remedy against his employer for an injury sustained in the course and scope of employment.

 

 

SPECIFIC LOSS AND FATAL CLAIMS

 

Kristina Steets v. Celebration Fireworks, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: May 5, 2023

Issue:

Whether specific loss benefits are payable following an injured worker’s death resulting from a work injury?

Background:

While working for Employer, an explosion occurred when Claimant inserted a fuse into a fireworks display causing her traumatic injuries. Employer filed a Notice of Compensation Payable accepting liability for Claimant’s injuries, and paid Claimant temporary total disability benefits. Claimant filed the Claim and Review Petitions seeking to define the nature and extent of her injuries, alleging therein that the loss of use injury was an injury separate and apart from the brain injury. Employer opposed both Petitions.  The WCJ granted the Claim and Review Petitions and amended Claimant’s work injuries.  The WCJ found that Claimant lost the use of her arms for all practical intents and purposes, and that the impairment was permanent. The WCJ declared that once Claimant’s total disability benefits ceased, Claimant would be entitled to specific loss benefits.  Employer appealed to the Board, which affirmed.  Employer appealed to the Commonwealth Court, which affirmed the Board’s order. (Steets 1). Thereafter, Claimant died because of complications from her work-related injuries. Employer ceased payment of total disability benefits upon Claimant’s death. Claimant’s estate filed the Claim, Review, and Penalty Petitions, seeking payment of Claimant’s funeral expenses and specific loss benefits.  The WCJ granted the Claim Petition and ordered Employer to pay Claimant’s funeral expenses.  The Estate appealed to the Board, which affirmed the WCJ’s decision.

Holding:

Because the General Assembly conditioned payment of specific loss benefits on a death by cause other than the work injury it intended to exclude death by the work injury.  Based on Section 306(g) of the Act and applicable precedent, when an employee dies due to a work injury while collecting total disability benefits and before specific loss benefits are payable, the only specific loss payments due are reasonable funeral expenses to be paid to the funeral home.  Here, Claimant was receiving total disability benefits, and was awarded specific loss benefits that would commence after her total disability ceased.  Claimant’s work-related injuries caused her death. She had no dependents with rights to either her total disability or specific loss benefits when she died. Under such circumstances, Employer’s only statutory obligation was to pay $7,000.00 in funeral expenses to the funeral home, which it did.  Section 306(g) of the Act provides that specific loss benefits can be paid to the same category of dependent persons listed in Section 307 of the Act, but only where the employee should die from some other cause than the injury.  There is nothing in the Act that requires an employer to pay specific loss benefits in a case where the injured worker died because of the work injury that caused the specific loss.  There is nothing in the language of the Act or in the case law interpreting the Act that supports the argument that the right to the specific loss benefit became vested when it was awarded by the WCJ in Steets I, or that any vested right passed from Claimant to her estate because the specific loss benefits were awarded prior to Claimant’s death. Claimant had no dependents and Employer is not obligated to pay the specific loss benefits.  Whether the worker dies of the work-related injury or some other cause, a benefit or advantage is preserved for the statutory dependents. The Act’s more generous treatment of dependents is not irrational and may reflect an effort to balance the cost of the WC program with the protection of those most vulnerable to the harm occasioned by work-related injuries.

Affirmed.

DISSENTING OPINION BY JUDGE CEISLER

The basis for the dissent was based upon the belief that Section 410 of the Workers’ Compensation Act authorizes the payment of specific loss benefits following the work-related death of a claimant.

 

 

SETTING ASIDE AN NCP – EDI ERROR

 

Jeffrey Ware v. Trustees of the University of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 15, 2023

Issues:

Whether the WCJ erred as a matter of law by granting Employer’s Review Petition to set aside the NCPs?

Background:

Decedent was employed by Employer as a researcher. On November 15, 2010, Decedent filed a Claim Petition alleging that repeated exposure to radiation in connection with his job caused gliosarcoma and brain tumors necessitating surgery. Decedent alleged that his last date of exposure was October 5, 2010, and his last date of employment was October 8, 2010.  Decedent died on October 23, 2011, during litigation of the Claim Petition. Claimant then filed a Fatal Claim Petition alleging that Decedent died of cancer caused by work-related radiation exposure and seeking benefits for herself and her two children with Decedent.  On June 4, 2012, Independence Blue Cross filed a Review Medical Petition requesting to intervene in the Claim proceeding and asserting a subrogation lien for Decedent’s medical treatment in the amount of $316,610.00.  On September 20, 2016, a Notice of Compensation Payable (NCP) was issued that recognized an October 5, 2010, injury described as “multiple head injury” and “occupational disease injury” attributable to repetitive exposure to radiation in connection with Decedent’s job. An amended NCP was issued a few days later, correcting the claimant’s date of birth.  On October 7, 2016, Employer filed a Review Petition requesting that the WCJ set aside the NCP and Amended NCP as materially incorrect.  Employer alleged that it had always denied all allegations of the Claim Petition and Fatal Claim Petition, and it was continuing to do so. Claimant filed a Penalty Petition alleging that Employer violated the Act by failing to pay benefits in accordance with the NCP and Amended NCP.  The WCJ granted Employer’s Review Petition and denied Claimant’s Penalty Petition, concluding that Employer proved the NCP and Amended NCP were not an admission of liability that Decedent sustained a work-related injury or that his death was work-related, and were not intended to accept the Claims. Rather, the NCP and Amended NCP resulted from an attempt to pay a legal bill and alter Decedent’s birth date through a newly implemented electronic system which had improperly coded the claim as compensable and that under the circumstances, the NCP and Amended NCP were void ab initio and stricken.  The WCJ denied the Claim Petition and Fatal Claim Petition, concluding that Employer successfully rebutted the statutory presumption of relationship.  The WCJ also dismissed IBC’s Petition seeking subrogation for the medical expenses it paid.  The Board affirmed.

Holding:

Employer provided substantial evidence the NCPs were materially incorrect at the time they were issued and that their very issuance was an error. The WCJ heard evidence about the computer systems the Bureau of Workers’ Compensation (Bureau) used and about the transition from one system to another. Electronic Data Interchange (EDI) is the electronic way of submitting claim information to the Bureau.  The manager of the EDI section of the claims management division of the Bureau, testified about the transition from the old system to the newer Workers’ Compensation Automation and Integration System (WCAIS) and that Decedent’s claim was always erroneously coded as compensable in the Bureau’s computer systems.  A senior account claims representative for the carrier testified he was dumbfounded when he changed Decedent’s birth date in the PMA system, and it generated a request to the Bureau and that he did not intend to produce new forms or to make any determination.  Two additional witnesses for Employer credibly explained they engaged EDI only to pay a legal bill and change a birth date, they had no intent to accept or acknowledge the Decedent’s claim as compensable, and the NCP was issued unintentionally.  Substantial evidence exists to support a finding the NCPs were materially incorrect when they were issued.   Further, the WCJ found, and the Board agreed, no obligation to pay ever existed as the NCPs were void ab initio, thus there was no violation.

Affirmed.

 

 

RES JUDICATA AND COLLATERAL ESTOPPEL

 

Pablo Munoz v. Jermacans Style, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 19, 2023

Issue:

Whether the WCJ erred by dismissing the Petitions based on technical res judicata ?

Background:

Claimant sustained a work-related injury which Employer accepted. Employer filed a Termination Petition seeking to terminate benefits following an independent medical examination (IME) of Claimant. The first WCJ held a hearing on the Termination Petition. Claimant did not file an answer and did not appear or otherwise defend against the allegations. At the hearing, the first WCJ accepted Employer’s medical report and, based on this evidence alone, determined that Claimant had fully recovered from his work injury effective March 20, 2019. Claimant did not file an appeal.  Thereafter, Claimant filed a reinstatement petition and a penalty petition alleging that his benefits should be reinstated on the grounds that the Termination Petition was improperly granted and that the finding of termination was not supported by substantial, competent evidence.  These Petitions were assigned to a second WCJ.  By decision dated January 17, 2020, second WCJ denied these Petitions, concluding that first WCJ’s order terminating Claimant’s benefits was final and binding.  The second WCJ concluded that Claimant was barred by res judicata from asserting that the Termination Petition was improperly granted.  Claimant appealed to the Board, which affirmed.  The Commonwealth Court quashed the subsequent appeal as untimely filed.  Thereafter, Claimant filed the Instant Petitions, alleging that the order terminating his benefits was not supported by substantial evidence and is void ab initio on the basis of hearsay as the attorney for Employer never took the deposition of the IME doctor.  A third WCJ held a hearing wherein Employer interposed a motion to dismiss, asserting res judicata.  The third WCJ denied and dismissed the Instant Petitions based on res judicata. Claimant appealed to the Board, which affirmed.

Holding:

Technical res judicata and collateral estoppel are both encompassed within the parent doctrine of res judicata, which prevents the relitigating of claims and issues in subsequent proceedings.  When a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded. For technical res judicata to apply, there must be: (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued.  Contrary to Claimant’s assertions, Claimant had the opportunity to litigate these issues.  However, by failing to answer the Termination Petition, appear at the hearing on the Termination Petition, or appeal the first WCJ’s order, Claimant did not avail himself of this opportunity.  Res judicata also applies to claims that “should have been litigated.”

Affirmed.

 

 

IMPAIRMENT RATING EVALUATIONS

 

Jay T. Tedesco v. Kane Freight Lines, Inc. (WCAB)
Unpublished Disposition – Unpublished Memorandum Opinion
Decided: May 19, 2023

Issues:

Whether Act 111 is unconstitutional? Whether the Board should have remanded the case to the WCJ to correct the apparent clerical error rather than doing so itself?

Background:

On March 31, 2015, Claimant sustained a disabling work-related injury while operating a broken pallet jack. Employer accepted the injury as a “lower back strain.”  The parties later stipulated to expand the description of injury.  After litigation of a review petition, the WCJ added an L4-5 disc herniation, resolved to a disc disruption with chronic right L4 radiculopathy to the description of injury.  Employer filed a modification petition seeking to modify Claimant’s benefits to temporary partial disability (TPD) status based on a July 11, 2019, IRE with a 32% impairment rating.  When the WCJ set out the case background in a 2020 decision, he made a clerical error. It is undisputed that Claimant was injured on March 31, 2015 and began receiving weekly benefits of $951.00 on an uninterrupted basis.  Also, in the prior 2018 decision, the WCJ described Claimant’s injury as “L4-5 disc herniation, resolved to a disc disruption with chronic right L4 radiculopathy.” However, the 2020 decision included an incorrect reference to reinstatement, an incorrect benefits rate, a date prior to Claimant’s actual date of injury, and attribution of cervical issues, which are not part of Claimant’s condition. The Board affirmed, concluding that Claimant’s July 2019 IRE was constitutionally legitimate and that the WCJ did not err in modifying Claimant’s benefit status to TPD based on the IRE. The Board also modified the WCJ’s decision to correct the clerical errors.

Holding:

Because prior cases dealing with the constitutionality of Act 111 are dispositive and binding authorities on this issue, Claimant’s argument that it is unconstitutional was meritless.  Section 413 of the Act provides that a notice of compensation payable or an agreement for compensation may be modified to correct a material typographical, clerical, or factual error. This has been judicially extended to allow correction of WCJ decisions, which may be done on a party’s petition or sua sponte by either the WCJ or the Board.  Section 413 does not apply where the alleged error involves a change in the WCJ’s factual or legal analysis or requires additional factual findings or conclusions of law.  Here, the error in the WCJ’s decision was obvious, and the WCJ’s listing of the description of injury was part of the case history; it was not the subject of dispute, not part of the ultimate disposition by the WCJ, and did not require additional fact-finding or analysis to correct. The Board did not err in making the necessary correction rather than remanding to the WCJ. Therefore, Claimant’s argument is meritless.  Claimant also has not established that the IRE was defective or that testimony concerning the IRE was incompetent. As such, it was for the WCJ to evaluate and weigh the evidence and credit the testimony.  Claimant did not show that the WCJ’s crediting of employer’s expert’s testimony was unsupported by substantial evidence or amounted to arbitrary or capricious disregard of evidence.

Affirmed.

 

Jennifer Leissner v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 17, 2023

Issue:

Whether Act 111 is unconstitutional?

Background:

In January 2013, Claimant sustained a work-related injury and was awarded disability benefits. In September 2020, she underwent an IRE which assigned Claimant a 6% impairment rating pursuant to the Sixth Edition AMA Guides to the Evaluation of Permanent Impairment (Guides) (second printing April 2009). Employer filed a modification petition based on the IRE results.  The WCJ granted Employer’s modification petition, which modified Claimant’s disability benefits from total to partial as of the IRE date.   The Board affirmed.

Holding:

Claimant sustained a work-related injury prior to the enactment of Act 111. Claimant’s arguments that Act 111 is a substantive amendment, not retroactive, and effects a vested right have already been rejected in prior decisions of the court.

Affirmed.

 

Joanne Hardik v. Community Health Systems (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision.
Decided: May 17, 2023

 Issue:

Whether the retroactive application of Act 111 to a pre-Act 111 injury is unconstitutional?

Background:

On July 11, 2013, Claimant suffered a work-related injury.  On March 12, 2021, Employer filed a modification petition based upon a February 25, 2021 IRE.  Claimant did not present any testimony and stated that she would only be challenging the constitutionality of Act 111. The WCJ held that Employer established that Claimant had reached MMI and had a whole-body impairment of 27%. Thus, the WCJ granted Employer’s petition, modifying Claimant’s benefit to partial disability status effective February 25, 2021. The Board affirmed.

Holding:

Claimant sustained a work-related injury prior to the enactment of Act 111. Claimant’s arguments that Act 111 is a substantive amendment, not retroactive, and effects a vested right have already been rejected in prior decisions of the court.

Affirmed.

 

Catherine Nadolsky v. UPMC Altoona Regional Health System (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision.
Decision: May 17, 2023

Issues:

Whether Act 111’s designation of the Sixth Edition of the Guides in assessing whole body impairment fails to remediate the delegation of powers deemed unconstitutional by the Pennsylvania Supreme Court in Protz II?

Background:

In April 2017, Claimant sustained a work-related injury in the form of a head contusion, which UPMC Altoona Regional Health System (Employer) accepted by means of a notice of compensation payable.  In September 2019, a physician conducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Second Printing (Guides), which yielded a whole-body impairment rating of 5%.  Employer filed a notice changing Claimant’s disability status to partial disability, effective April 20, 2019. Claimant thereafter filed a review petition challenging her change in disability status. The WCJ denied Claimant’s petition on the basis that Claimant failed to meet her burden of proving that her impairment rating was equal to or greater than 35%, further stating that he lacked the authority to address Claimant’s constitutional challenge to the IRE provisions of the Workers’ Compensation Act.  Claimant appealed to the Board, which affirmed.

Holding:

Act 111’s designation of the Sixth Edition of the Guides for use in conducting IREs does not fail to remediate the delegation of legislative authority deemed unconstitutional by the Protz II Court.  The non-delegation doctrine does not prevent the General Assembly from adopting as its own particular set of standards which already are in existence at the time of adoption. The non-delegation doctrine merely prohibits the General Assembly from incorporating, sight unseen, subsequent modifications to such standards without also providing adequate criteria to guide and restrain the exercise of the delegated authority.  When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will become the law of this Commonwealth. It is not delegating its authority to legislate.  Thus, the private status of the AMA and any individual contributors to the Guides is immaterial to Claimant’s constitutional claim, because no delegation of legislative discretion occurred when the General Assembly adopted an existing set of standards. Every delegation of legislative authority to a private party is not automatically unconstitutional.

Affirmed.

 

 

UTILIZATION REVIEW

 

Glen Owens v. Penn Tech Machinery Corp. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 30, 2023

Issue:

Whether the WCJ’s denial of the Platelet Rich Plasma (PRP) Injections aspect of Claimant’s Utilization Review (UR) petition was supported by substantial evidence of record?

Background:

Claimant sustained a work-related lumbar injury. In 2017, the parties settled Claimant’s wage losses and Employer agreed to remain responsible for reasonable and necessary medical expenses for Claimant’s injury.   In January 2020, Employer requested a UR of treatment provided to Claimant by Treating Doctor.  The Reviewing Doctor’s report stated that he reviewed Treating Doctor’s records as well as those from additional treating providers.   The Claimant reported ongoing pain and “issues” with the steroids, so Treating Doctor recommended platelet rich plasma (PRP) injections.   Treating Doctor requested to speak with Reviewing Doctor concerning the UR, but there was no response.  Claimant did not provide a statement for Reviewing Doctor to review as part of his evaluation.  Reviewing Doctor concluded, among other things, that PRP injections would not be reasonable and necessary.  Claimant filed a petition to review Reviewing Doctor’s UR concerning Treating Doctor.  The WCJ issued a decision and order crediting Reviewing Doctor’s conclusion that the PRP treatment proposed by Treating Doctor was not reasonable and necessary. Claimant’s testimony did not establish “significant relief” from the treatment and PRP lacks the support of peer-reviewed and evidence-based literature.  Claimant appealed to the Board, which affirmed the WCJ.

Holding:

Determinations concerning the weight and credibility of the UR report, as with any other evidence, are for the WCJ as factfinder.  The employer bears the burden of proof throughout the UR process to establish that the challenged medical treatment is not reasonable or necessary, no matter which party prevailed at the UR level.  Claimant has not shown with precedential authority or record references that the WCJ’s acceptance of the UR report and rejection of Treating Doctor’s report was otherwise arbitrary, capricious, or unsupported by record evidence. Therefore, the WCJ did not err, and the Board did not err in affirming.  To the extent Claimant believes that a conversation between Treating Doctor and Reviewing Doctor would have changed the result of Reviewing Doctor’s report or the outcome of this UR litigation, Claimant cannot fault Reviewing Doctor, Employer, or even the WCJ for the fact that it never happened. Claimant’s argument is therefore meritless.  Reviewing Doctor’s UR report was completed in February 2020 and limited to records through the end of January 2020, at which time Treating Doctor had recommended but not yet treated Claimant with PRP.  However, the Act specifically contemplates prospective UR consideration. Therefore, Reviewing Doctor addressed PRP generally and opined that while it had shown “promising results,” it was still too under-documented and experimental to be reasonable and necessary.  Although Reviewing Doctor did not have the benefit of Claimant’s testimony and Treating Doctor’s report that the treatment had been palliative, the WCJ was within her discretion to agree with Reviewing Doctor about the unproven nature of PRP and to conclude that the benefits Claimant received were insufficient to approve the treatment.  Claimant’s argument is therefore meritless.  Claimant did not establish that Reviewing Doctor’s UR report finding Claimant’s PRP treatment unreasonable and unnecessary was invalid, that the WCJ erred in crediting Reviewing Doctor’s report and denying that part of Claimant’s UR petition, or that the Board erred in affirming the WCJ’s decision and order.

Affirmed.

 

 

MENTAL INJURY AND NOTICE

 

Felicia Gonzalez v. Department of Military and Veterans Affairs (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 18, 2023

Issues:

Whether the WCJ and Board erred in determining Claimant did not give timely notice of a work-related mental injury?  Whether the WCJ and Board erred in concluding that Claimant did not prove a mental injury due to objective abnormal working conditions?

Background:

On February 28, 2018, Claimant submitted a Claim Petition alleging that on October 28, 2015, while employed by the Employer, she suffered from peripheral neuropathy as well as psychological stress from work environment.  Claimant alleged that notice of her work-related mental injury was provided on several occasions to Employer with the first notice being provided on May 19, 2015 and then again on September 25, 2015.  The WCJ determined that although Claimant’s testimony was credible, it was not corroborated to establish objective abnormal working conditions. The WCJ determined that claimant’s expert’s testimony was not competent to support a finding that Claimant suffered a mental injury because his opinions relied on Claimant’s subjective reaction to the work incidents.  The WCJ further determined that claimant’s expert clearly testified that Claimant’s disability was based upon her fibromyalgia condition.  The WCJ concluded that Claimant did not provide timely notice to Employer of a work-related injury in the nature of a psychological injury. The WCJ accordingly denied Claimant’s Claim Petition.  The Board affirmed.

Holding:

Claimant’s Claim Petition was filed on February 28, 2018. The alleged incident which caused Claimant’s mental injury is asserted to have occurred on October 28, 2015; however, Claimant is alleging that notice was provided to Employer on May 19, 2015, and September 25, 2015.  In May 2015, Claimant had filed a formal complaint regarding co-employer harassment prior to the date of her alleged work-related mental injury. The WCJ found employer’s testimony credible that Claimant did not provide notice of a work-related mental injury, as she failed to report that she had a stress-related or psychological condition because of the alleged work incidents with the co-employee.  The WCJ specifically determined that Claimant did not present any note from a physician and did not indicate herself that she was unable to continue working because of any stress-related or psychological condition. She continued to work. Additionally, the WCJ found that from May 2015 to August 2015, Claimant told employer that she was fine. After a September 25, 2015 incident, the WCJ further found that employer did not receive any documentation from a physician or notice from Claimant indicating that she was unable to perform her job duties. The WCJ also found that on October 22, 2015, after a conversation with Claimant, her employer, Claimant was asked if she would like a different job but did not request a transfer at that time. During this October 22, 2015 conversation, employer testified this was the first time she found out about Claimant’s issues with her feet; however, Claimant did not indicate to employer that the problem she was having with her feet was caused or worsened by her work activity.  Moreover, the WCJ found that the Claimant clearly testified that she avoided reporting a psychological work injury.  The WCJ’s findings are supported by substantial evidence.

Affirmed.

 

 

NOTICE OF COMPENSATION PAYABLE – AMENDED

 

Jeffrey D. Moretti v. County of Bucks (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 24, 2023

Issue:

Whether the WCJ erred in finding that the NTCP was properly amended by the issuance of a medical-only NCP because the latter form was not labeled “amended” as required by Section 121.7a(c) of the Bureau’s regulations?

Background:

Claimant worked as a prison guard for Employer for 20 years. While on duty, Claimant slipped on ice and fell to the ground, suffering an injury. Employer subsequently issued a notice of temporary compensation payable (NTCP) defining the injury as a soft tissue strain or tear, without identifying the specific part of the body injured.  Claimant soon returned to his pre-injury position as a prison guard, with some restrictions. Thereafter, Employer issued a medical-only notice of compensation payable (NCP), which again listed the injury as a soft tissue strain or tear, and Claimant stopped receiving indemnity benefits. The medical-only NCP was issued within 90 days of the NTCP, as required by Section 121.7a of the Bureau regulations.  The medical-only NCP did not specify that it was an amended form, and Employer did not file either a notice of denial or notice stopping temporary compensation.  A few months later, while leaving the prison property at the end of his workday, Claimant was involved in a physical altercation with a uniformed, on-duty police officer. Criminal charges were filed against Claimant as a result of this incident.  Employer terminated Claimant’s employment. Almost two years later, Claimant filed a penalty petition and a review petition alleging that Employer violated the Act by failing to pay medical bills and asserting that the description of his injury should be amended.  Claimant also filed a petition to reinstate compensation benefits asserting that his total disability recurred due to his employment being terminated and a worsening of his work-related condition.  Employer filed a petition for termination alleging that Claimant had fully recovered from his work injury based upon 2020 independent medical examinations.  The WCJ granted the review in part and denied the penalty petition. The WCJ determined that Claimant’s loss of earnings was not related to his work injury or a worsening thereof but was due to the termination of his employment for bad faith conduct and denied the reinstatement petition.  Finally, the WCJ granted the termination petition.  The Board affirmed the decision of the WCJ.

Holding:

The NTCP was properly amended and stopped and did not convert to an NCP by operation of law.  Section 121.7a of the Bureau’s regulations applies to NTCPs and the need to identify an amended NTCP.  Here, Employer did not issue a second or amended NTCP, but rather a medical-only NCP.  Section 121.7a does not address NCPs, and the Bureau’s regulations do not contemplate labeling an NCP as amended in this context.  The medical-only NCP issued by Employer properly informed Claimant that while Employer was now acknowledging his injury, it did so only as to compensation for medical treatment and Claimant could establish rights to future compensation by filing a reinstatement petition.  The WCJ did not err.

Affirmed.

 

 

JUDICIAL DISCRETION

 

Marie Louise Boulin v. Brandywine Senior Care, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 9, 2023

Issues:

Whether the WCJ’s factual findings and credibility determinations are based upon substantial evidence?

Background:

In August 2018, Claimant sustained work-related injuries to her right ankle, shoulder, and mid/lower back while employed as a nurse’s aide.  As of January 31, 2020, Claimant remained disabled from a heel bone fracture but had fully recovered from her other injuries.  The WCJ granted Employer’s termination petition, concluding that Claimant had fully recovered from her heel bone fracture.  Claimant appealed to the Board, which affirmed the WCJ’s decision.

Holding:

Despite raising four issues in her statement of questions, Claimant presented her argument under a single heading. Further, Claimant presented no legal authority to support her claims, which were nearly indecipherable. The Court affirmed the Board’s decision to affirm the WCJ’s decision to grant Employer’s termination petition. The Court held that Claimant’s presentation of her appeal hindered its meaningful appellate review.  Thus, her claims were held to have been waived.  Nevertheless, Claimant’s arguments were meritless as the WCJ’s findings were supported by substantial evidence, and the Court was bound by the WCJ’s credibility and evidentiary weight determinations.

Affirmed.

CONCURRING AND DISSENTING OPINION BY PRESIDENT JUDGE COHN JUBELIRER

The dissent agreed with the Majority’s affirmance of the Board’s decision upholding the Workers’ Compensation Judge’s granting of the termination petition.  However, the dissent disagreed with the Majority’s finding that under the circumstances herein, Claimant, proceeding pro se, waived the claims she presented for the Court’s review because the nature of Claimant’s issues is clear from the record.

 

 

Donald Patterson v. Transfer VFD (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 17, 2023

Issues:

Whether the Board erred in stating that Claimant had not alleged any unpaid medical expenses and should have remanded to clarify Employer’s responsibility to pay Claimant’s medical expenses?

Background:

While working for Employer as a volunteer firefighter, Claimant suffered an injury responding to an emergency call.  Claimant filed a claim petition, seeking total disability benefits and medical benefits. Employer responded with a termination petition, asserting that Claimant had fully recovered from any work-related injury. While litigating his petition, Claimant documented $7,905.41 in medical bills covered by his medical insurer through a lien statement issued by Equian LLC.  Medical experts from both Claimant and Employer agreed that Claimant had fully recovered from his injuries as of December 13, 2017.  The WCJ granted Claimant’s petition as to medical benefits and granted Employer’s termination petition. The WCJ ordered Employer to reimburse Equian for the $7,905.41 in medical bills. Otherwise, the WCJ awarded no disability benefits, costs, or fees.  Claimant timely appealed to the Board, seeking a remand for clarification that Employer was responsible for the payment of all reasonable, necessary, and causally related medical expenses through December 12, 2017. The Board simply affirmed.

Holding:

The Act obligates employers to pay reasonable and necessary medical services causally related to treatment for a work injury. To seek payment of medical expenses, a claimant must submit evidence of medical bills while the record remains open. An employer is not liable to pay medical bills submitted by a claimant after the record is closed.  Here, Claimant sought reimbursement of those medical bills paid on his behalf by Equian, totaling $7,905.41. The WCJ directed Employer to reimburse Equian. Claimant did not submit any additional evidence of medical expenses, either paid or unpaid. Thus, Employer’s financial obligation is limited to the $7,905.41 lien. A remand for the WCJ to amend the operative language in his decision was unnecessary.

Affirmed.

 

  

Robert Mullen v. Northampton Township (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 17, 2023

Issues:

Whether the WCJ erred in erred in finding that Claimant’s hearing loss was not caused by work-related exposure to noise?

Background:

Claimant worked for the Township’s parks and recreation maintenance department for approximately 12 years. Claimant filed a claim petition on May 21, 2019, alleging that he suffered from occupational hearing loss caused by exposure to noise throughout his employment with the Township. Employer denied that Claimant’s hearing loss was work related.  In a decision circulated on October 26, 2020, the WCJ credited Claimant’s testimony to the extent he suffered from a severe hearing impairment. The WCJ rejected Claimant’s testimony that his hearing loss was caused by exposure to occupational noise while employed by the Township.  While the WCJ found that Claimant suffered severe binaural hearing loss, he also found that Claimant failed to meet his burden of proving that his hearing loss was work related and denied the claim petition.

Holding:

The WCJ thoroughly explained the evidence that formed the basis for his findings of fact as well as his rationale for finding the Township’s witnesses more credible than Claimant’s. Accordingly, the WCJ did not err in denying his claim petition after finding that Claimant’s hearing loss was not related to his employment with the Township.  Further, Claimant failed to raise before the Board any issue regarding the propriety of holding a hearing by telephone or to suggest that he was somehow prejudiced by such a hearing, the issue is waived.

Affirmed.

 

 

MEDICAL FEE REVIEW

 

Harburg Medical Sales Company v. SWIF (Fee Review Hearing Office)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: May 23, 2023

Issue:

Whether Harburg is a health care provider under the Act?

Background:

Leroy Harrison (Harrison) was injured in the course and scope of his employment with Optimal Energy Inc. Harburg filed the Applications to determine the appropriateness of payments SWIF made for durable medical equipment supplies it provided to Harrison.  SWIF orally made a Motion to Dismiss arguing that Harburg was not a health care provider within the meaning of Section 109 of the Workers’ Compensation Act (Act), and, therefore, lacked standing to invoke the Bureau’s fee review process.

Holding:

Because the issue has been previously litigated and decided by this Court, the Court had to determine whether res judicata or collateral estoppel applies herein to determine whether the Bureau erred in granting SWIF’s Motion to Dismiss.  Res judicata bars actions on a claim, or any part of a claim, which was the subject of a prior action, or could have been raised in that action.  Here, res judicata did not apply because SWIF was not a party to the prior action. However, all five collateral estoppel elements were met: (1) the issue in both actions was whether Harburg is a health care provider under the Act; (2) the prior action resulted in a final judgment on the merits; (3) Harburg was a party to the prior action; (4) Harburg had a full and fair opportunity to litigate the issue; and (5) the resolution of the issue was essential to the judgment in the prior action. Because collateral estoppel applies, re-litigation of whether Harburg is a health care provider under the Act is barred. Accordingly, the Bureau properly granted SWIF’s Motion to Dismiss.

Affirmed.

 

CASE SUMMARIES 4/1/2023 – 4/28/2023

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES

4/1/2023 – 4/28/2023

SUBROGATION

 

Lindsay Franczyk v. The Home Depot, Inc, et al.
Supreme Court of Pennsylvania – Published Opinion
Decided: April 19, 2023

Issue:

Whether the employer is immune from civil suit under the Workers’ Compensation Act’s (WCA) exclusivity provision?

Background:

Claimant was working at a Home Depot store when a customer’s dog bit her. Defendants investigated, but they barred claimant from having any further contact or interaction with the dog owner or any witnesses.  Defendants located and questioned two individuals who had brought dogs into the store, and spoke to an eyewitness, but ultimately allowed all of them to leave the store without taking any identifying or contact information. Claimant later was diagnosed with cubital tunnel syndrome, which required surgical repair.  Claimant claimed and received workers’ compensation benefits.  Claimant sued Defendants, asserting that Defendants failed to investigate the incident sufficiently, and that they negligently allowed the dog owner and witnesses to leave without obtaining identifying information. She contends that these acts and omissions denied her the opportunity to file a third-party suit against the dog owner.  Defendants filed a motion for summary judgment, claiming immunity under the WCA’s exclusivity provision, notwithstanding Defendants’ failure, if any, to act more diligently in securing the information she needed to bring a third-party claim.  The trial court denied summary judgment.  The Superior Court affirmed.  Like the trial court, the Superior Court embraced claimant’s view that she did not seek to recover from Defendants for the dog bite itself, but rather for the economic harm she suffered when she lost the opportunity to file a third-party claim against the tortfeasor dog owner.

Holding:

When an employee recovers on such a third-party claim, the employer may seek “subrogation,” recouping its workers’ compensation expenses up to the amount recovered from the third party.  The WCA’s linchpin is its “exclusivity provision,” and the Pennsylvania courts have recognized only a few narrow exceptions to this exclusivity. The legislature’s goal was not to immunize, but merely to cabin, an employer’s obligation to employees for workplace injuries, in recognition of the fact that injuries are an inevitable incident of the workplace. Claimant’s asserted loss is her third-party claim, but the only principled way to determine the damages would be to make an educated guess as to what a jury might have awarded her in compensatory and non-monetary damages.  This would require a trial within a trial, with claimant asking the jury to imagine itself empaneled in a personal injury case. For practical purposes, claimant would sue the absent dog owner for personal injury, and Defendants would be forced to defend against that claim in the dog owner’s stead. Thus, Defendants would litigate precisely the sort of claim that the WCA is supposed to prevent.  The architects of the WCA held that the employer need not even indemnify a third party, let alone defend it.  The Court reversed the Superior Court’s order denying summary judgment and remanded for the entry of summary judgment in favor of Defendants.

Reversed and remanded

CHIEF JUSTICE TODD, concurring

.

IMPAIRMENT RATING EVALUATIONS

 

Michelle Grimes v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 26, 2023

Issue:

Whether the provisions of Act 111 are unconstitutional?

Background:

Claimant sustained a work-related injury. Employer accepted Claimant’s injury as a right tibula/fibular fracture and paid her temporary total disability (TTD) benefits.  On June 8, 2021, Claimant underwent an IRE which determined that she had a whole-person impairment rating of 8%, based on the 6th Edition of the AMA Guides.  Employer filed a Modification Petition seeking to change Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted the Modification Petition. The Board affirmed the WCJ’s decision.

Holding:

Because this Court has previously ruled that a WC claimant does not have a vested right to ongoing TTD benefits that Act 111 violates, Claimant’s argument to the contrary was unfounded.  Further, Claimant’s argument that the WCJ erred by not concluding that Act 111 is an unconstitutional delegation of legislative authority also lacks merit.  The WCJ properly determined, based on precedent, that Act 111 does not unconstitutionally violate Claimant’s vested rights, can be applied to injuries that occurred before its October 24, 2018 effective date, and is not an unlawful delegation of legislative authority, the Board’s order is affirmed.

Affirmed.

 

 

 

Jose Gonzalez v. Guizzetti Farms, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 18, 2023

Issues:

Whether Act 111 can be applied retroactively and whether the enactment of Act 111 constituted an unlawful delegation of legislative authority?  Whether the WCJ erred in merely modifying Claimant’s disability benefits from total to partial, rather than suspending benefits, as Claimant’s 500-week period of partial disability expired on April 6, 2018?

 

Background:

Claimant sustained a work injury in 2006.  In 2008, Employer filed a Notice of Change of Workers’ Compensation Disability Status (Change Notice) modifying Claimant’s benefits from total to partial disability based on the results of an IRE that assigned Claimant a whole body impairment rating of 0%. Claimant did not appeal the modification of his disability status.  Following the Supreme Court’s decision in Protz, Claimant filed a modification petition on January 12, 2018, seeking reinstatement of his total disability benefits. The WCJ granted Claimant’s modification petition, thus reinstating his total disability benefits, noting that, at the time Claimant filed his modification petition, he had not exhausted his 500 weeks of partial disability.  In 2020, Employer filed a petition to modify Claimant’s total disability benefits following a December 17, 2019 IRE which utilized the 6th Edition, second printing, of the Guides and assigned Claimant a whole body impairment rating of 29%.  A 2021 decision of Judge Poorman granted Employer’s modification petition, based on Dr. Yang’s credible testimony and the December 17, 2019 IRE.  Claimant appealed Judge Poorman’s decision to the Board.  The Board affirmed Judge Poorman’s decision,

Holding:

The court affirmed the Board’s order to the extent it affirmed the WCJ’s decision to grant Employer’s modification petition.  However, they reversed the Board’s order to the extent it affirmed the WCJ’s failure to grant Employer a credit for previously paid weeks of partial disability.  Claimant’s argument that Act 111 cannot apply retroactively, absent language in the form suggested in Section 15.71 of the Manual. Neither Section 1926 of the SCA nor Section 15.71(b) of the Manual mandates the use of specific language in a retroactive provision. Indeed, Section 15.71(b) only suggests that a retroactivity provision “may” follow a particular format; it does not direct the inclusion of specific terms through use of the word “shall,” which would denote a mandatory duty eliminating the exercise of discretion.  Furthermore, our courts have consistently held that Act 111 applies retroactively with respect to the calculation of a claimant’s weeks of total and partial disability paid prior to the effective date of Act 111.  Further, the so-called non-delegation doctrine established in article II, section 1 of the Pennsylvania Constitution does not prevent the General Assembly from adopting as its own set of standards which are already in existence at the time of adoption.  Accordingly, the Board properly affirmed Judge Poorman’s decision granting Employer’s modification petition.  However, the Board erred in holding that Employer was not entitled to a credit for the 500 weeks of partial disability Claimant received.  These payments are not “erased” or converted into total disability benefits by virtue of the January 14, 2019 WCJ decision reinstating Claimant’s benefits, effective September 5, 2008. There is no support for the Board’s contrary conclusion, which serves to defeat the purpose of Section 3(2).  A remand was ordered for a determination on Employer’s entitlement to a credit under Section 3(2) of Act 111.

Affirmed in part, reversed in part, and remanded for further proceedings.

 

 

FORFEITURE – FAILURE TO ATTEND AN IRE

Lloyd Edinger v. Rhodes Salvage/Edward Rhodes (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 25, 2023

Issues:

Whether the Claimant had a reasonable excuse for failing to attend the rescheduled IRE?

Background:

In 2008, Claimant suffered a work injury.  In 2019, Employer requested Claimant submit to an IRE pursuant to newly enacted Section 306(a.3) of the Workers’ Compensation Act.  An IRE was scheduled, and Claimant was notified of the appointment.  Claimant’s counsel notified Employer that Claimant would not attend the scheduled IRE because he believed Act 111 was unconstitutional, similar to the former IRE provision. Employer filed a Petition for Examination seeking an order from the WCJ to compel Claimant to attend an IRE, which the WCJ granted.  Thereafter, Employer sent Claimant a letter advising the IRE had been rescheduled to September 9, 2019.   On August 15, 2019, Claimant appealed the Decision ordering the IRE to the Board. Employer filed a Motion to Quash Claimant’s Appeal with the Board, alleging the WCJ’s order directing Claimant attend the IRE was an interlocutory order.  On September 9, 2019, Claimant did not appear for the rescheduled IRE and the Employer filed a Suspension Petition, alleging Claimant failed to appear for the IRE, as ordered.  Claimant requested that the Suspension Petition be dismissed with prejudice and sought an award of counsel fees. Claimant also stated he would attend a rescheduled IRE if it was stipulated that he was not waiving any rights to object to the nature of the exam on constitutional or any other grounds.  (In January 2020, the Board issued its order on the first appeal, quashing Claimant’s appeal of the WCJ order directing him to attend the IRE, concluding it lacked jurisdiction over the interlocutory order. This Court affirmed the Board’s order on June 30, 2020, noting that the precedent clearly holds that a WCJ’s order directing a claimant to attend an IRE is interlocutory and unappealable.) The WCJ issued a Decision denying Employer’s Suspension Petition because the Board had yet to act on Claimant’s appeal of the WCJ’s prior order directing Claimant attend the IRE or Employer’s Motion to Quash related thereto.   The WCJ further found the appeal provided Claimant with a reasonable excuse for failing to attend the rescheduled IRE.  Accordingly, the WCJ denied Employer’s Suspension Petition.  Employer appealed to the Board.  In July 2021, the Board issued its Opinion and Order, which is the subject of the instant appeal. The Board concluded the WCJ erred in failing to grant the Suspension Petition where Claimant did not comply with a WCJ order directing him to attend an IRE and did not request supersedeas while Claimant’s appeal of that order was pending before the Board.   Claimant had no right to appeal the order compelling him to attend because the order from which he appealed was interlocutory and, therefore, not appealable, and even so, an appeal of an order to attend an examination under Section 314 does not operate as an automatic supersedeas.  The Board concluded that the WCJ misapplied the law, resulting in an abuse of discretion.

Holding:

It is undisputed that Employer requested Claimant attend an IRE, and that Claimant refused.   Employer filed a petition seeking an order from a WCJ to attend that IRE, the WCJ issued such an order, and Claimant did not comply with that order. At issue is whether Claimant was required to comply with the order and attend the IRE when Claimant’s appeal of that order was still pending with the Board, and assuming the Claimant was required to attend the IRE, what the consequence of noncompliance should be.  The Board did not err in suspending Claimant’s disability benefits after Claimant failed to attend an IRE as ordered by the WCJ. Although Claimant was in the process of appealing that order, it was an interlocutory order, which did not operate as an automatic supersedeas, and Claimant did not separately seek supersedeas. Furthermore, pursuant to this Court’s precedent, failing to attend the IRE under these circumstances did not serve as reasonable cause or excuse for not attending as directed. Moreover, the Board did not exceed its authority by awarding Employer a dollar-for-dollar credit as Section 314 of the WC Act provides for this exact relief.

Affirmed. 

 

REASONABLE MEDICAL SERVICES – REIMBURSEMENT

Jacqueline Davies v. All My Children (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 26, 2023

Issue:

Whether the WCJ erred as a matter of law in failing to grant reimbursement to Claimant’s parents for the purchase of a new home necessary to accommodate Claimant’s disability?

 

Background:

Claimant sustained a spinal injury while working for Employer, which resulted in Claimant becoming paraplegic and having bowel and bladder problems. In 2018, Claimant filed a review petition requesting medical benefits for the provision of numerous accommodations.  Payment for several of those accommodations was not disputed, other than on grounds of cost, and were granted by the WCJ.  However, Claimant sought and was denied reimbursement to her parents for the purchase of a house in Perkasie because their prior house could not be modified to accommodate Claimant’s needs. Claimant also sought the cost of maintenance of her parents’ Souderton house.  Prior to her work injury, Claimant lived—and had always lived—with her parents in the three-story Souderton house owned by her parents. After the injury, it was not possible to remodel the Souderton house to accommodate Claimant’s paraplegia. Therefore, Claimant’s parents cashed in their tax-advantaged 401k retirement accounts and purchased a house in Perkasie for approximately $220,000. Claimant did not contribute funds for the purchase of the Perkasie house and has no ownership interest in it. Claimant’s parents then spent $35,000 on renovations to the Perkasie house to make it accessible to her, which amount was awarded by the WCJ.  The WCJ denied the portion of the review petition seeking payment for the Perkasie house and the costs associated with maintaining the Souderton house.  The WCAB affirmed.

Holding:

Section 306(f.1)(1)(ii) of the Workers’ Compensation Act provides that in addition to work-related medical treatment, the employer shall provide payment for services and supplies and orthopedic appliances, and prostheses in accordance with this section.  However, the purchase of a house extends the phrase ‘orthopedic appliances’ beyond a reasonable construction and is thus not reimbursable.

 

Affirmed.

 

 

JUDICIAL DISCRETION

Impress Manufacturing v. Jomar Rosa-Acosta (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 28, 2023

Issue:

Whether the WCAB erred in finding that the WCJ improperly dismissed Claimant’s petition with prejudice?

Background:

Claimant filed a claim petition seeking total disability.  After missing a WCJ-ordered deadline for expert evidence, Claimant sought an extension. The WCJ denied the extension, precluded Claimant from introducing expert evidence, and ultimately dismissed this first petition with prejudice.  Prior to disposition of the first claim petition, Claimant filed a second petition based on the same facts but further alleging a surgical aggravation of his initial injury. The WCJ dismissed the second petition as premature but did not indicate whether the dismissal was with or without prejudice.  Claimant timely appealed both dismissals to the Board. The Board affirmed in part, reasoning that the WCJ properly imposed evidentiary deadlines but erred in dismissing Claimant’s first petition with prejudice. Regarding the second petition, the Board agreed that it was premature but clarified that the WCJ’s dismissal was without prejudice. Employer filed a petition for Review to the Commonwealth Court.

Holding:

The WCJ erred in dismissing Claimant’s first petition with prejudice.  The dismissal of a claimant’s petition for lack of prosecution is only appropriate where prejudice is shown. The WCJ must make a specific finding of prejudice in support of his decision to dismiss a petition, otherwise, dismissal without prejudice is appropriate. Mere delay caused by a claimant’s failure to comply with specific deadlines is insufficient. The delay must prejudice the defendant. The dismissal of a petition for lack of prosecution may be set aside for an abuse of discretion.  The record did not support a dismissal with prejudice. While Claimant was unable to secure medical testimony in a timely fashion, Employer had no hardship or loss.  Any delay caused by Claimant did not hinder Employer’s ability to secure medical evidence.  Further, Claimant offered a reasonable explanation for the delay and the WCJ did not grant Claimant multiple continuances over Employer’s objections.  The singular warning by the WCJ that there would be no extensions seems arbitrary and unjustified under these circumstances, particularly given the WCJ’s subsequent failure to identify any prejudice to Employer in dismissing Claimant’s first petition.  The WCJ abused his discretion in dismissing Claimant’s first petition with prejudice.

Affirmed.

 

Antonio Mercado v. Antonio Origlio, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 18, 2023

Issue:

Whether the decision of the Board affirming the WCJ’s complete denial of the Claim Petition is supported by substantial competent evidence?

Background:

Claimant filed a Claim Petition alleging he sustained a work injury while bending and lifting as an order picker for Antonio Origlio, Inc. (Employer). He sought partial disability benefits from June 1, 2020, through July 5, 2020, and then ongoing full disability benefits from July 6, 2020, forward.  The WCJ denied the Claim Petition.  The WCJ found Mercado failed to sustain his burden of proof that he sustained a work injury or that any subsequent disability or medical care and treatment was causally related to the same.  The Board affirmed.

Holding:

Claimant questions the WCJ’s credibility determinations. While credibility determinations generally are not subject to review, to offer a reasoned decision in compliance with the Act, the WCJ must issue a decision containing findings of fact and conclusions of law based upon the evidence as a whole, which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached.  Here, the WCJ considered the medical evidence presented, reports of other employees of Employer, and claimant’s own testimony. Ultimately, the WCJ rejected claimant’s testimony and medical evidence, and as a result, claimant failed to meet his burden of proof in establishing he sustained a work injury. The WCJ set forth substantial evidence, along with rationale for his credibility determinations, to support his decision to deny the Claim Petition. In so doing, the WCJ issued a reasoned decision.

Affirmed.

 

Kimberly Lyons v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 17, 2023

Issues:

Whether the Board erred in affirming the WCJ’s denial of Claimant’s Review Petition and the granting of Employer’s Termination Petition? Whether the Board erred in denying reimbursement of litigation costs?

Background:

Claimant was injured during the course and scope of her employment as a police officer for Employer. Employer issued a Notice of Compensation Payable (NCP) accepting liability for Claimant’s injury, which initially was described as a left ankle sprain. Approximately one year later, an IME of Claimant opined that she had fully recovered from her injury. Employer filed a Termination Petition.  Claimant filed the Review Petition alleging that the injury description in the original NCP was incorrect and should also have included a left knee contusion. Employer issued an amended NCP recognizing Claimant’s work injury as both a left ankle sprain or tear and a left knee contusion. Claimant amended her Review Petition to add causalgia and complex regional pain syndrome (CRPS) as work-related injuries.  The WCJ granted Employer’s Termination Petition and denied Claimant’s Review Petition. Claimant appealed to the Board, which affirmed the WCJ.

Holding:

The WCJ’s Decision was supported by substantial evidence and the WCJ did not err in either granting the Termination Petition or denying the Review Petition.  The WCJ’s credibility determinations are supported by the record.  In the record there is competent, substantial evidence and no capricious disregard of other evidence. Claimant’s arguments suggesting to the contrary are without merit.  Although it is true that Employer’s expert did not examine Claimant’s left knee or opine that the left knee injury had ceased, Claimant made no complaints of pain in her left knee during the IME. This expert therefore had no reason to examine it. Moreover, Claimant’s own treating physician, opined that Claimant’s knee injury had improved and did not prevent her from returning to work. There was no competent, unequivocal evidence in the record supporting a compensation award for any injury to Claimant’s left knee, notwithstanding the fact that Employer filed the Amended NCP adding the left knee contusion to the injury description. Any failure of Employer’s medical expert to mention or opine on the knee injury is immaterial.  Further, Claimant was not entitled to reimbursement of litigation costs.  First, from its plain language, section 440(a) applies only to “contested cases.” Although Employer initially filed an answer to the Review Petition denying all allegations, Employer nevertheless filed the Amended NCP adding the left knee contusion to the injury description, which was the only relief requested. The mere fact that the Amended NCP followed in time the filing of the Review Petition does not mean that Claimant was “successful” on a “contested” claim.  Second, even assuming that Claimant was successful in adding her left knee contusion to her injury description, the WCJ nevertheless concluded that Claimant had recovered completely from that injury and terminated her benefits. Claimant therefore was not successful on those claims and is not entitled to any associated litigation costs.

Affirmed.

 

 

SUSPENSION – VOLUNTARY REMOVAL FOR WORKFORCE

 

City of Wilkes-Barre v. Thomas Snyder (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 20, 2023

Issue:

Whether the claimant’s loss in earning power was due to Claimant’s voluntary removal from the workforce?

Background:

Claimant was employed as a firefighter by Employer when he was injured at work. Employer recognized Claimant’s injury by way of an Amended Notice of Compensation Payable and Claimant began receiving temporary total disability benefits (TTD).  Claimant’s TTD benefits were suspended when Claimant returned to work in a modified-duty position. Claimant continued working in a modified-duty position until November 26, 2018, when Claimant submitted a resignation letter confirming that he was retiring as of November 26, 2018, due to a work-related injury.  Claimant filed a petition to reinstate his TTD benefits, in which he alleged that he retired due to his work-related injury, pursuant to a determination that he would not ever be physically capable of returning to his pre-injury job as a firefighter and that the temporary, light-duty job would no longer be available.  The WCJ found that there was no evidence presented that the modified-duty work Claimant was performing was ever taken away or specifically limited in duration.  The WCJ concluded that claimant failed to establish that compensation benefits should be reinstated.  On appeal, the Board reversed the WCJ’s decision to deny reinstatement, determining that the WCJ erred in concluding that Claimant voluntarily retired.

Holding:

To show that efforts to return a claimant to the workforce would be unavailing because a claimant has retired, an employer must show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce. The WCJ erred when he ignored the parties’ stipulation that Claimant retired once he learned he would not be allowed to return to his firefighting duties.  The WCJ erred by ignoring the credited testimony of the HR Director, where she agreed that modified-duty work was temporary in nature and that once a firefighter was permanently disabled from the firefighting duties, modified-duty would no longer be available.  The WCJ ignored the letter from Claimant’s treating physician that deemed him unable to return to unrestricted firefighting duties because of his work injury, and the credited testimony from Employer’s expert that also agreed that Claimant was restricted to light-duty work at that time.  Based on the credited testimony of Employer’s HR Director, Claimant would no longer be eligible for modified-duty work if he was permanently disabled from his pre-injury position as a firefighter.  Claimant was, in fact, deemed permanently disabled by his treating physician, which prompted his retirement. Thus, Employer failed to carry its burden, under the totality of the circumstances, to show that Claimant’s retirement was voluntary. Further, claimant sustained his burden to prove that he was forced into retirement when his temporary, modified-duty work assignment would be eliminated when he was deemed unable to return to work as a firefighter, so claimant was not required to prove that he retired from the entire labor market.

Affirmed.

 

 

TERMINATION PETITION

 

Connor Soles v. Garnet Valley School District (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 14, 2023

Issue:

Whether Employer presented insufficient evidence to show a resolution of the work injury?

Background:

Claimant worked as a paraprofessional for Employer.  In October 2019, he sustained a work-related injury when he was hit in the face with a basketball while monitoring students in the gym. Employer accepted the injury via a Notice of Compensation Payable (NCP). In April 2020, Employer filed a termination petition alleging Claimant’s full recovery as of February 2020. In July 2020, Claimant filed a review petition, seeking to expand the NCP injury description to include post-concussion syndrome and cervical and left-shoulder injuries.  The WCJ granted Employer’s termination petition, finding that Claimant had fully recovered from the work-related injury. The WCJ also denied Claimant’s review petition.  The Board affirmed.

Holding:

Sufficient evidence supported a termination of claimant’s benefits.  According to Claimant, Employer had accepted that Claimant suffered multiple head injuries when he was hit by a basketball. Employer’s medical expert’s failure to acknowledge all the injuries accepted by Employer did not render his testimony incompetent and insufficient to establish that Claimant had fully recovered.   It is sufficient if the medical expert assumes the presence of the work-related injury and then evaluates whether the claimant remains disabled.  Similarly, where a medical expert opines that the claimant has fully recovered from any injury the claimant may have suffered, the expert’s doubts concerning injury causation do not render the opinion invalid.  The employer’s expert concluded that claimant was fully recovered from all injuries that he sustained. Thus, not only did he credibly testify that Claimant had fully recovered from his contusion, but he also considered the possibility the Claimant may have suffered other injuries never acknowledged by Employer and based upon his examination and the diagnostic results, concluded that Claimant had fully recovered. Accordingly, this testimony was competent and sufficient to establish that Claimant’s disability had ceased.

Affirmed.

 

 

Theresa Lugo Thomas v. Trinity Health Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 20, 2023

Issue:

Whether the Board erred in affirming the WCJ’s termination of benefits where the Employer’s medical expert refused to recognize the accepted injury?

Background:

On November 18, 2019, in the course of her employment, claimant slipped and fell on wet leaves. She went to the hospital and received a diagnosis of a contusion of the right hand, a leg contusion, and a lumbar strain. A February 5, 2020 Notice of Compensation Payable (NCP) accepted a right shoulder, right hand, right upper arm strain or sprain, and a right thigh contusion.  After the injury, claimant had surgery on her right rotator cuff, physical therapy for her shoulder, and injections in her hand and elbow.   Thereafter, claimant filed a Review Petition that alleged the NCP failed to recognize a right wrist ligament tear status post-surgery, right shoulder rotator cuff tear, and aggravation of underlying cervical degenerative disc disease.  Employer subsequently filed the Termination Petition that alleged she had fully recovered as of October 22, 2020.  The WCJ partially granted the Review Petition and granted Employer’s Termination Petition. The Board affirmed.

Holding:

The Board found the WCJ accepted “competent testimony” from employer’s medical expert that claimant had fully recovered from her work-related injury.  The WCJ accepted employer’s expert’s opinions based on the delayed onset of the thumb and elbow complaints, the prior medical history related to the thumb, as well as claimant’s medical expert’s inability to opine whether another incident was the cause of the ongoing wrist complaints, as well as the multiple normal shoulder examinations, the numerous normal examinations of the cervical spine and the lack of objective findings in the MRI or EMG. It was not material that the employer’s expert did not believe all the injuries occurred. A medical expert need not believe that a particular work injury actually occurred. Rather, a medical expert’s opinion is competent if he assumes the presence of an injury and finds it to be resolved by the time of the IME. Employer’s expert gave claimant the benefit of the doubt and determined that even if she suffered a shoulder injury, it was minor and had resolved by the time of the IME.  The WCJ accepted the “competent testimony” of employer’s expert, which was sufficient to support a finding that claimant had fully recovered from her work-related injury.

Affirmed.

 

 

REINSTATMENT PETITION

Janet Thomas v. American Airlines, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 19, 2023

Issue:

Whether Claimant is entitled to reinstatement of disability benefits from February 6, 2020, to October 3, 2020?

Background:

In June 2019, during the course and scope of her employment, Claimant sustained a lumbar sprain injury and was awarded disability benefits. She remained unable to work until December 2019. Upon her return to work, Employer issued a suspension notification, which Claimant did not challenge. In January 2020, Employer filed suspension and termination petitions, alleging Claimant’s full recovery.  On February 6, 2020, Claimant again stopped working following a mandatory work training event, which aggravated her injury symptoms. Thereafter, Claimant filed a reinstatement petition and a penalty petition, alleging that Employer had illegally suspended her benefits.  The WCJ credited Claimant’s testimony and her expert’s report concerning Claimant’s reoccurrence of injury symptoms. However, the WCJ rejected claimant’s expert’s opinion that Claimant sustained a continued loss of earning power. The WCJ also rejected employer’s medical expert’s testimony that Claimant had fully recovered.  The WCJ granted Employer’s petition to suspend disability benefits from February 6, 2020, to October 3, 2020, and denied all remaining petitions.

Holding:

A claimant seeking reinstatement of suspended benefits must prove that her worsening injury has affected her work performance, rendering her unable to perform a job previously found to be within her capabilities. Although it is unnecessary for a claimant to re-establish the medical cause of her disability, she must nevertheless prove that the same injury has adversely impacted her earning capacity.   Claimant failed to establish any loss of earning power from February to September 2020. The WCJ rejected the opinion offered by Claimant’s medical expert that Claimant was disabled during this period for several reasons, including the failure to address Claimant’s ability to work even though she had been absent from work for over a month, his opinion that Claimant remained disabled even though she had returned to work several weeks earlier, and evaluations by three other doctors during this period, none of whom opined on her disability status.  Although she claims her doctor provided her with a medical note releasing her from work in February 2020, Claimant did not offer this as evidence to demonstrate a loss of earning power.  On the other hand, the WCJ credited the payroll evidence introduced by Employer, which demonstrated that Claimant did not suffer wage loss but rather received regular earnings during this period.  Affirmed.

 

 

TRAUMA EXCEPTION

Solid Waste Serv. d/b/a J. P. Mascaro & Sons v. St. Luke’s Hospital (Bureau of Workers’ Compensation)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 25, 2023

Issues:

Whether St. Luke’s petition for fee review was premature because Employer never received what it considered a “proper bill?” 2. Whether the definitions of “life-threatening injury” and “urgent injury” contained in Section 109 of the Act are unconstitutional under article II, section 1 of the Pennsylvania Constitution?

Background:

Claimant sustained a work injury which Employer accepted through issuance of a Notice of Compensation Payable (NCP). The NCP described Claimant’s work injury as consisting of “multiple head fractures” and a right leg injury. Due to the severity of Claimant’s injuries, Claimant was taken to St. Luke’s, a Level I trauma center, where he received in-patient treatment for 31 days. St. Luke’s sent Employer an itemized bill for Claimant’s treatment in the amount of $1,342,419.85. The bill from St. Luke’s indicated that Claimant received “trauma-related services performed at a designated trauma site,” and that the expected payment, according to the regulations, is 100% of charges.  Employer received the bill from St. Luke’s in a timely manner but failed to pay it within 30 days, as required by the Act and the regulations.  St. Luke’s filed an application for fee review based on Employer’s failure to respond.  On February 16, 2021, the Fee Review Section issued an administrative decision, which determined that Employer was untimely in paying the bill from St. Luke’s and that St. Luke’s was due $1,342,419.85, plus interest.  Employer filed a request for a de novo hearing to contest the Fee Review Section’s administrative decision, asserting that St. Luke’s had not charged the usual and customary rate, that some charges were not trauma-related, and that Section 306(f.1)(10) of the Act, relating to trauma cases, was unconstitutional.  Employer did not dispute that Claimant suffered a life-threatening work injury that required acute treatment at a trauma center.  Rather, Employer questioned the “staggering amount” of the bill and whether Employer had been invoiced the usual and customary charges for services within the geographic area.  Employer conceded that it bore the burden of proving that the amounts billed by St. Luke’s were “not usual and customary.”  The Hearing Officer affirmed the Fee Review Section’s administrative decision and ordered Employer to pay St. Luke’s $1,342,419.85, plus interest.

Holding:

As for the timeliness of the Application for Fee Review, there is no dispute that Claimant received acute care pursuant to Section 306(f.1)(10) of the Act and Section 127.128(a) of the Medical Cost Containment regulations, and Employer does not deny that it failed to pay the bill it received from St. Luke’s within 30 of its receipt thereof or that it failed to contest the reasonableness or necessity of Claimant’s treatment within the 30-day time frame. Employer’s assertion that the 30-day period for paying St. Luke’s was never triggered because St. Luke’s failed to send Employer a “proper bill” is meritless.  St. Luke’s was not obligated to state on its bill the amounts that it has negotiated with other patients, health insurance companies, self-insured employers, or workers’ compensation insurance companies to pay for the services in question in the past.  Employer never made any attempt to identify the correct amounts within 30 days of receiving the bill from St. Luke’s, as provided in Section 127.205 of the MCC regulations. Moreover, Employer had several months in which to develop its case and it failed to do so. Despite accepting liability for Claimant’s work injury and acknowledging that it was responsible for paying his medical bills, Employer failed to pay any portion of the bill received.  A provider’s bill must contain its “actual charges,” which are the charges made by similar providers within the geographic area.  There is no requirement that a provider invoice the amounts it “actually receives” for the services rendered or that which has been “negotiated with others.”  Accordingly, St. Luke’s’ application for fee review was timely filed.  As for the argument that the “trauma exception” in Section 306(f.1)(10) of the Act and Section 127.128(a) of the Medical Cost Containment regulations is an unconstitutional delegation of legislative authority, the court noted that Employer had not challenged the characterization of Claimant’s injuries as life-threatening or urgent, nor had it argued that Claimant’s injuries did not warrant treatment at a Level I trauma center.  Employer at no point challenged the reasonableness and necessity of Claimant’s treatment.  Employer’s liability was established irrespective of the ACS’s triage guidelines regarding use of trauma centers.  Thus, Employer could not show how it was harmed by the definitions of “life-threatening injury” and “urgent injury.”  In the absence of such harm, Employer has not established a direct interest in this constitutional challenge and, consequently, that it has the requisite standing to test the constitutionality of Section 109. Moreover, beyond its reliance on Protz, and general statements that the “trauma exception” was enacted without appropriate policy standards or guidance, Employer has failed to develop its constitutional argument in any meaningful way.

Affirmed.

 

 

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

03/29/2023 – 04/28/2023

PRE-EXISTING CONDITIONS

 

Louis Freeman v. Board of Trustees, Police and Firemen’s Retirement System  
Superior Court of New Jersey, Appellate Division
No. A-0380-21; 2023 WL 2943039
Decided: 04/14/2023

Background:

Freeman was hired in December 2002 as a patrolman and worked his way up to becoming a K-9 officer and eventually a sergeant in September 2014, who was responsible for the midnight shift at the Trenton Psychiatric Facility. On March 4, 2015, Freeman walked outside to retrieve his canine and slipped on ice, falling onto his right side, and landing on his holster and striking his right knee and elbow. He received treatment from numerous doctors, including MRIs and EMGs. It was determined that he had diabetic neuropathy, however, he alleged he never had any symptoms prior to his slip and fall. Freeman’s doctors determined that he was totally and permanently disabled and unable to complete the job duties of a police sergeant. He also had a functional capacity examination (FCE) which determined he could not return to full duty police work.

On March 29, 2016, Freeman applied for accidental disability retirement pension, and his application for accidental disability was denied in July 2017. The Board held that he was not totally and permanently disabled from performance of his regular job duties. Freeman appealed the Board’s decision to the Office of Administrative Law. In September 2017, Freeman was evaluated by Dr. David Weiss, who opined that he suffered an injury to his back, hip, and neck because of the slip and fall on March 4, 2015 and as a result he can no longer perform the duties of a police officer. He also determined that Freeman had disc bulges in his cervical spine that were age-related, but they were previously asymptomatic and were aggravated by his fall. The Board’s orthopedist, Dr. Andrew Hutter, evaluated Freeman and acknowledged he could no longer work as a police officer. Freeman also had a neurological evaluation performed by Dr. Steven Lomazow, who concluded that he was not totally and permanently neurologically disabled, but there was an orthopedic problem with his hip.

On July 9, 2021, the ALJ issued a decision finding Freeman totally and permanently disabled from performing his duties as a police officer, however, the ALJ concluded that the March 4, 2015 accident was not the cause of his condition. The ALJ therefore determined that the Board’s denial of Freeman’s accidental disability was appropriate, but he did satisfy the requirements of ordinary disability. Freeman appealed, and alleged that the 2015 incident was the substantial contributing cause of his permanent disability, and the Board erred when it found the slip and fall accident was not the direct cause of his permanent and disabling injury.

Holding:

The court enumerated the criteria required to establish an entitlement to accidental disability retirement benefits. They also stated that the holdings in Gerba and Korelnia, were addressed in Petrucelli, where they stated that “the claimant in Gerba lost because the undisputed record established that he had symptomatic developmental arthritis for a decade and that the employment event only contributed to the progression of the disease.” The court ultimately concluded in Petrucelli that the petitioner satisfied the “direct result” test despite his pre-existing condition that triggered symptoms resulting in total disability.

This court stated that the question in this matter is whether Freeman’s disability is causally related to a traumatic event thereby qualifying his for accidental disability. They held that there is no indication that Freeman’s pre-existing conditions were of any major significance based on the expert testimony from both parties, and the record is bereft of any testimony that his neuropathy was somehow disabling. They further held that the circumstances of this case are analogous to petitioner’s pre-existing condition in Petrucelli, coupled with the fact that every expert acknowledged that prior to the traumatic fall, Freeman was serving in the “rigorous capacity of a K-9 officer without any limitations.” The court stated that, like Petrucelli, there was no expert testimony that suggested Freeman would have become symptomatic from his pre-existing arthritis or other conditions independent of the accident at issue.

Therefore, the court held that the record amply supports the conclusion that the March 4, 2015 slip and fall was the “essential significant or substantial contributing cause” of his disability, and the Board’s decision was not supported by substantial evidence in the record, and Freeman is entitled to accidental disability retirement benefits.

Reversed.