CASE SUMMARIES 03/1/2024 – 03/31/2024

Apr 3, 2024

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
03/1/2024 – 03/31/2024

SUBSEQUENT TERMINATION PETITION

Johnny L. Pierson v. Consol Pennsylvania Coal Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 28, 2024

Issue:

Whether the Employer failed to establish Claimant’s full recovery from his work injury since the last disability adjudication?

Background:

Claimant sustained an injury to his shoulder during the course and scope of his employment. Employer accepted the injury by a Notice of Compensation Payable.  In 2017, Employer filed a petition to terminate Claimant’s workers’ compensation benefits.  WCJ Lawton denied the 2017 Termination Petition.  Employer filed a 2021 Termination Petition based upon a new IME.  The WCJ granted Employer’s 2021 Termination Petition.

Holding:

The Employer’s expert did not offer essentially the same testimony during both the 2017 and 2021 proceedings and the WCJ did not fail to make an express factual determination that Claimant’s physical condition had changed since the last adjudication.  In order to terminate benefits on the theory that a Claimant’s disability has reduced or ceased due to an improvement of physical ability, it is first necessary that the employer’s petition be based upon medical proof of a change in the Claimant’s physical condition. When asked whether there had been a change in Claimant’s condition from the first IME in 2017 and the second IME in 2021, employer’s expert testified that there had been a change in the four years between his examinations.  The expert further indicated that his second opinion of full recovery was based in part on documentation generated after the prior adjudication.  Employer’s expert unequivocally testified that Claimant’s work injury had fully healed since the prior adjudication, and that this injury was not the cause of Claimant’s continued complaints of pain.  There was substantial, competent evidence supporting a change in Claimant’s physical condition since the last adjudication and the date the WCJ found Claimant to be fully recovered.

Affirmed.

William Dalzell v. Forest Hills Borough-Allegheny (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 1, 2024

Issue:

Whether employer’s expert’s testimony failed to show the required change of condition since the last disability adjudication such that the WCJ’s finding of full recovery and termination of benefits is barred by the doctrine of res judicata?

Background:

Claimant sustained a lumbar strain during the course and scope of his employment as a maintenance worker for Employer. Employer accepted the injury by a Notice of Temporary Compensation Payable, which was later converted into a full Notice of Compensation Payable.  In 2020, Employer filed a petition to terminate Claimant’s workers’ compensation as of November 11, 2019.  The WCJ denied the 2020 Termination Petition finding that Claimant also sustained a T12 compression fracture as part of his injury, in addition to the lumbar strain.  On August 24, 2021, Claimant underwent an independent medical examination (IME) following which it was opined that Claimant had fully recovered from his work accident and that he could return to his regular-duty job as a maintenance worker for Employer. However, it was further opined that, based on Claimant’s unrelated diagnosis of osteoporosis, he should not perform any significant lifting. Employer filed the 2021 Termination Petition. The WCJ granted Employer’s 2021 Termination Petition.

Holding:

Employer’s evidence was not insufficient as a matter of law to establish a change in Claimant’s physical condition and employer’s expert did not fail to accept the adjudicated diagnosis from the prior proceeding. In order to terminate benefits on the theory that a Claimant’s disability has reduced or ceased due to an improvement of physical ability, it is first necessary that the employer’s petition be based upon medical proof of a change in the Claimant’s physical condition. Where there have been prior petitions to modify or terminate benefits, the employer must demonstrate a change in physical condition since the last disability determination.  An employer’s burden is met where its medical expert unequivocally opines within a reasonable degree of medical certainty that the Claimant is fully recovered, can return to work without restrictions necessitated by the work injury and there are no objective medical findings connecting the Claimant’s substantiated complaints of pain to the work injury. Such was the case here and the WCJ found the testimony credible.  Further, as Claimant’s present pain was attributable to his osteoporosis and factors unrelated to his 2019 work injury, Employer’s 2021 Termination Petition did not relitigate the adjudication initially reached in this matter but rather focused on the change in Claimant’s condition since that decision.  The doctrine of res judicata is not applicable.

Affirmed.

ATTORNEY FEES ON MEDICAL BILLING

 
Patrice Williams v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: March 21, 2024

Issues:

Whether the Board erred in affirming the WCJ’s denial of an attorney’s fee based on Claimant’s medical bills?

Background:

Claimant sustained work-related injuries during the scope and course of her employment with the City of Philadelphia as a correctional officer.  Claimant filed a Claim Petition, that was later amended to a Review Petition.  Claimant submitted a claim for counsel fees, and in support introduced a fee agreement executed with her counsel.  The Fee Agreement states, in pertinent part, “20% of all compensation payable to me for as long as I receive workers’ compensation benefits. This includes payment for all medical treatment and hospital bills. I understand that the medical provider may seek payment from me for twenty percent of the medical bills. I have been advised by my attorney that the provider cannot do so in accordance with Section 306(f.1)(7) of the Workers’ Compensation Act.  The WCJ granted the Review Petition, in part. Regarding Claimant’s requested counsel fee, the WCJ found that counsel’s fee was not approved with respect to future medical benefits, as these are unknown costs, and the WCJ did not believe it can be demonstrated that Claimant understands her potential future exposure and liability regarding presently unknown costs.  The Board affirmed the WCJ.

Holding:

The WCJ erred in approving a counsel fee limited to 20% of Claimant’s indemnity benefits and excluding any portion of her medical benefits. Claimant testified she understood that the Fee Agreement between herself and her counsel included 20% of both wage loss and medical benefits, and that her medical providers could “theoretically” try to obtain 20% of the medical bills from her. Claimant understood the significance of the Fee Agreement and its terms.  Section 306(f.1)(7)’s prohibition on “balance billing” is not limited to only the difference between a provider’s normal fee and the Medicare-approved reimbursement rate. Rather, it prohibits a provider from billing a Claimant for any costs related to care provided under the Act and any amounts reflecting the difference between the provider’s charge and the amount paid.  There may be policy reasons to regulate the counsel fee differently, depending on whether the fee was incurred for pursuing an award of medical compensation as opposed to indemnity compensation. These policy concerns should be addressed to the General Assembly.  A 20% counsel fee agreement applicable to all workers’ compensation benefits received by a Claimant is per se reasonable. A medical provider that provides medical services to treat a compensable injury under the Act may not recoup directly from a Claimant any portion of any payment deducted to pay a counsel fee.  The Board did not err in affirming the WCJ’s finding that Claimant does not suffer from lateral epicondylitis. The Board did err, however, in affirming the WCJ’s award of a counsel fee restricted to a percentage of Claimant’s indemnity benefits only. The Board’s order was affirmed with regard to the description of Claimant’s work injury. The Board’s order was reversed with regard to Claimant’s fee agreement with her counsel. The matter was remanded to the Board for further remand to the WCJ with instructions to approve, as written, the fee agreement introduced before the WCJ.

Affirmed, in part, and Reversed, in part.

PENALTY PETITION – SELF HELP

Anna Griffis v. Albert Einstein Healthcare Network (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 15, 2024

Issue:

Whether Employer is entitled to recoup its subrogation lien by retaining the fees and costs it would otherwise be obligated to pay over to Claimant on a weekly basis or is in violation of the Act?

Background:

Past History
Claimant was injured in the course of her employment on April 28, 2009, while employed by Employer. Her injuries were severe. She continues to be entitled to compensation for total disability.   Four years after the injury, Claimant settled a medical malpractice case in the total amount of $2.088 million. Claimant then refused to reimburse Employer’s already substantial subrogation lien electing instead to challenge Employer’s right to subrogation.  The WCJ’s Order of August 1, 2017 confirmed Employer’s right to subrogation, but Claimant continued to refuse to reimburse the lien.  In a May 10, 2018 Decision, the WCJ ordered Claimant to reimburse Employer for its lien and found that Employer was entitled to a full suspension of Claimant’s benefits until the lien was reimbursed.  This order was ultimately affirmed by the Board and by the Commonwealth Court.  Claimant has failed to offer any evidence or rational theory in support of the position that the lien has been reimbursed by Claimant.  Employer’s lien is not even close to being reimbursed. Because Claimant has failed to reimburse, Employer can recoup the amount due only by withholding the amount that would otherwise be due on a weekly basis.  Claimant has failed to prove a violation of the Act. Employer established subrogation rights in the award, which resulted in: (i) Claimant owing a lump sum subrogation lien to Employer for past double payment of benefits, which she has refused to pay, and (ii) the balance of recovery, serving as a credit Employer is entitled to take against payment of future indemnity benefits.

Present Litigation
During the grace period, Employer was to pay Claimant its pro rata share of the costs and fees associated with recovering the medical malpractice settlement. As a result of Claimant’s failure to reimburse the lien, Employer, as of October 3, 2017, stopped paying wage loss compensation benefits, as it was Employer’s only means of recouping the substantial lien.  Consequently, Claimant filed a Penalty Petition.  The WCJ reasoned that Employer’s “only way to get reimbursed is to stop paying compensation due until the debt has been recovered” given Claimant’s choice not to immediately reimburse the existing lien.  Because Employer can now only recover on the lien by withholding that the “pro rata” share, it may do so in a “grace period,” during which it is relieved of paying those pro rata fees and costs. The Board affirmed the WCJ.

Holding:

Employer is entitled to recoup its subrogation lien by retaining the fees and costs it would otherwise be obligated to pay over to Claimant on a weekly basis. The WCJ did not err in so reasoning, nor did the WCJ err in concluding that no violation of the Act had occurred, such that the Penalty Petition should be dismissed.  When Employer unilaterally stopped paying its pro rata share of costs and fees, even if such unilateral cessation did violate the Act, it did not warrant imposition of penalties because it was justified. Ongoing suspension of benefits was warranted until the lien is paid.  Here, the WCJ would only have erred in dismissing the Penalty Petition if, by the time it was filed in November 2020, the situation had fundamentally changed so as to render Employer’s continued refusal to pay improper, given the Court’s prior Order.  Because Employer stopped payment of any benefits as of October 3, 2017, the fact that it will take 356.35 weeks for Employer to be paid back in full means the subrogation lien will be satisfied around May 2024, assuming Claimant does not finally pay in full.  At the time Claimant filed the penalty petition, Employer was still under no obligation to make weekly payment of pro rata attorney’s fees and costs to Claimant. Accordingly, the WCJ did not err in finding no violation of the Act, and therefore, in dismissing the Penalty Petition.

Affirmed.

JUDICIAL DISCRETION – REOPENING RECORD

Lavern Powell v. Waverly Heights (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 5, 2024

Issue:

Whether the WCJ erred when the WCJ declined to reopen the record so that Claimant could submit additional evidence to prove that her work-related fall was the cause of her lower back surgery?

Background:

Claimant worked for Employer as a certified nursing assistant. Claimant suffered a work-related injury when she slipped and fell to the ground. Employer issued an amended Notice of Temporary Compensation, which provided indemnity benefits and described Claimant’s injury as a contusion of the buttocks and pain to the left side of the lower back.  Claimant filed a claim petition, alleging total disability and that her injuries included additional things. Employer filed a termination petition alleging that Claimant had fully recovered.  On April 6, 2022, the WCJ closed the record in this matter. Thereafter, on June 29, 2022, Claimant filed a review medical petition in which she alleged a worsening of her condition. Claimant sought to reopen the record to submit evidence that she underwent surgery on June 10, 2022. The WCJ denied Claimant’s request to reopen the record.  The WCJ granted in part and denied in part Claimant’s review petition, concluding that Claimant established that she had sustained a right ankle sprain but that she had failed to establish neck and back injuries or that her work-related injury required surgery. The WCJ granted Employer’s termination petition.  The WCJ gave two reasons for not reopening the record and dismissing the review medical petition as moot. First, the factual issue of whether Claimant’s work-related injury required surgery had been addressed throughout the proceedings, and the WCJ found Dr. Craven not to be credible on that issue. Second, before the close of the record, the WCJ gave Claimant time to depose her surgeon.  However, Claimant declined and used the time granted to re-depose Dr. Craven.  The Board affirmed.

Holding:

The WCJ has wide latitude to determine procedurally the best manner to move the petition through litigation to resolution.  The decision whether to reopen the record is left to the sound discretion of the WCJ and will not be reversed on appeal absent an abuse of that discretion. There is no abuse of discretion when a party has had ample opportunity to present the evidence yet fails to do so before the record is closed. Throughout the proceedings, the parties introduced evidence regarding the extent of Claimant’s injuries and whether she needed surgery.  The WCJ also found that reopening the record for Claimant to submit evidence that she underwent surgery on June 10, 2022, was unnecessary because Dr. Craven and Dr. Mendez already extensively addressed the need for surgery, and Claimant had the opportunity to depose her surgeon, but failed to do so. Claimant never objected to the record being closed without evidence of Claimant’s upcoming surgery. At the time the WCJ closed the record, the parties had introduced substantial evidence regarding the nature and scope of Claimant’s work-related injuries and whether those injuries required surgery. Moreover, Claimant was given ample time to depose an additional medical expert but declined the opportunity. Under these circumstances, there was no abuse of the WCJ’s discretion in refusing Claimant’s request to reopen the record.

Affirmed.

JUDICIAL DISCRETION – ARBITRARY AND CAPRICIOUS

Kathryn A. Lawry v. County of Butler (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: March 6, 2024

Issue:

Whether the Board violated fundamental WC principles by overturning the WCJ’s credibility determination?

Background:

Claimant suffered a work-related injury which Employer accepted as a right thumb strain/sprain. The injury was later expanded to include right ulnar collateral ligament tear and reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS). In 2019, a WCJ denied Employer’s prior Termination Petition. The WCJ, in 2019, found that Employer failed to prove that Claimant’s physical condition had changed since a 2015 decision. In 2020, Employer filed the current Termination Petition alleging that Claimant fully recovered as of June 17, 2020. The WCJ Steiner denied Employer’s Termination Petition.  Ruling that, while Employer met its burden of proving that Claimant fully recovered from her right thumb strain/sprain and right ulnar collateral ligament tear, Employer failed to meet its burden of proving that Claimant fully recovered from her RSD/CRPS.  The WCJ explained that gold standard for diagnosing RSD or CRPS is the Budapest criteria, and Employer’s expert gave his opinion without specifically addressing it, and without any evidence of any recent objective diagnostic tests to determine whether Claimant had continuing RSD/CRPS. The Board reversed the WCJ’s decision holding that the WCJ’s determination that the expert’s testimony as to full recovery from RSD/CRPS, was not credible, based on failure to reference the Budapest criteria, and was arbitrary and capricious.

Holding:

The arbitrary and capricious standard is not only the traditional standard applied to credibility determinations. Credibility determinations are more than a series of individual findings. Rather, they represent the evaluation of a total package of testimony in the context of the record as a whole and reflect subtle nuances of reasoning that may not be fully articulated, nor even fully appreciated, by the fact-finder. The Court must view the reasoning as a whole and overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.  Clearly, the WCJ’s credibility determination of Employer’s expert was not based on a single medical opinion as the Board declares. Rather, it was based on his extensive knowledge of the case from presiding over previous Termination Petitions, the expert’s heavy reliance on surveillance videos which he used to support his physical examination and opinions, Claimant’s expert’s credible, convincing, and persuasive medical records, and Claimant’s medical evidence. Although the WCJ may have misstated the Kesselring Court’s footnote regarding the Budapest criteria, viewing the WCJ’s reasoning as a whole, the Court did not feel that the WCJ’s determination was arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.

Reversed.

CAUSAL RELATIONSHIP

Reynaldo Hernandez, Sr. v. Four Seasons Produce, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 5, 2024

Issue:

Whether the WCAB erred in affirming the WCJ’s denial of his claim FOR lack of causal relationship?

Background:

Claimant was a machine operator for Employer for 21 years, until February 23, 2021, when he was forced to retire because of back pain and radiating leg pain resulting from spinal stenosis.

Holding:

Claimant’s condition did not suddenly manifest itself in an incident on February 23, 2021, when he stopped working.  The WCJ found Employer’s testimony the more credible, determining that there was not an obvious causal connection between Claimant’s condition and his strenuous work activities given the degenerative process that underlay his injury. Claimant’s testimony alone was not sufficient to support a grant of the claim.   Even assuming that claimant’s expert’s testimony was unequivocal, to prove causation it must also be found to be credible. The WCJ is the ultimate factfinder and is empowered to determine witness credibility and evidentiary weight.  Here, the WCJ found that Employer’s expert was more credible that Claimant’s.

Affirmed.

IMPAIRMANT RATING EVALUATIONS

Darren Hoffman v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 19, 2024

Issue:

Whether retroactive application of Act 111 is unconstitutional?

Background:

In 2016, Claimant sustained a work-related injury to his right thumb and right upper extremity in the course of his employment with Employer.  On October 14, 2021, an IRE opined that Claimant had a whole-person impairment rating of 10% based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides), Sixth Edition. Employer filed a modification petition and the WCJ modified Claimant’s total disability benefits to partial disability.  The Board affirmed.

Holding:

Claimant’s arguments on appeal have already been reviewed and rejected by the Court in precedential decisions. Accordingly, the Court followed its precedential decisions and rejected Claimant’s arguments.

Affirmed.

SUBROGATION – POLICE OFFICER

ALLOWANCE OF APPEAL TO THE PA SUPREME COURT – GRANTED
Barbara Tiano v. City of Philadelphia and PMA (WCAB)
Supreme Court of Pennsylvania – Petition for Allowance of Appeal – GRANTED
Holding:  March 20, 2024

The Petition for Allowance of Appeal is GRANTED. The issue, as stated by Petitioner, is:
Whether the Commonwealth Court’s decision conflicts with this Court’s decisions, such as City of Erie v. WCAB (Annunziata) (Pa. 2003), Oliver v. City of Pittsburgh (Pa. 2011), Stermel v. Workers’ Compensation Appeal Board (City of Philadelphia) (Pa. Cmwlth. 2014), and Pennsylvania State Police v. Workers’ Comp. Appeal Bd. (Bushta) (Pa. 2018), because a self-insured, government entity, is prohibited from subrogating Heart and Lung Benefits Act Benefits from a third-party settlement received by Claimant, an employee, who was injured in the line of duty as a Philadelphia Police officer in a non-motor vehicle case.

Additionally, the parties were directed to address the statutory basis for subrogation as well as the application of Topelski v. Universal S. Side Autos, Inc., 407 Pa. 339, 180 A.2d 414 (1962), to non-motor vehicle accident cases in light of the recent line of aforementioned cases involving motor vehicle accidents.

PENNSYLVANIA LEGISLATIVE REVIEW
As of March 31, 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration or consideration.

Regular Session 2023-2024

House Bill 760

Short Title:      An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.

Subject:           Direct Deposit for Workers’ Compensation

This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year.

Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

House Bill 930

Short Title:      An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation.  Expanding Workers’ Compensation for Permanent Disfigurement

Subject:           Expanding Workers’ Compensation for Permanent Disfigurement

This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.

Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
03/01/2024 – 03/31/2024

CAUSAL RELATIONSHIP

Bello v. United PanAm Fin. Corp.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2986-21; 2024 WL 958364
Decided: 03/06/2024

Background:

Jeffrey Bello filed petitions seeking medical and temporary workers’ compensation benefits. The petitioner alleged that he suffered numerous injuries which were related to exposure to chemical fumes from the air conditioning system in his personal car, which was also used for work.

The petitioner was hired by respondent to sell auto financing at dealerships. He used his own car, but the respondent provided a gas card, credit card, and GPS-enabled company phones. The petitioner had his car serviced about 3 months after he started working for respondent. He testified that he noticed a chemical odor in the car. When he later turned on the air conditioner, he noticed a stronger chemical odor and “what felt like hot pepper” on his tongue. He testified that he was “coughing and spitting up blood.” He went to the emergency room that evening complaining of eye pain, throat pain, headache, and numerous other symptoms. The petitioner was diagnosed with chemical exposure. He purchased a new car and reported that he continued to have symptoms.

Respondent filed a workers’ compensation claim on the petitioner’s behalf with its insurance carrier, but the petitioner was terminated before receiving a determination. Following his termination, the petitioner was notified that his claim was denied. The petitioner then filed the petitions.

Both parties retained toxicology experts. Petitioner’s expert testified to prove causation. Both of respondent’s experts testified that they found no causal relationship between the complaints and diagnoses and alleged exposure to the chemical fumes from the car’s air conditioner. The WCJ found petitioner’s expert was not credible and that the petitioner’s evidence had little or no weight. The WCJ found that the respondent’s experts were credible and concluded the petitioner failed to establish a causal relationship.

Holding:

On Appeal, the petitioner argued the WCJ erred in dismissing the petitions based on the court’s qualification of the respondent’s experts and their testimony as well as finding his expert not credible.
The Court found no error in the WCJ’s qualification of respondent’s experts and testimony as well as the WCJ’s decision to discredit the testimony of the petitioner’s expert. The Court found no basis on which to disturb the court’s order.

Affirmed.

WORKERS’ COMPENSATION LIEN

New Jersey Transit Corp. v. Joseph
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-1194-22; 2024 WL 1172784
Decided: 03/19/2024

Background:

Defendant Darshelle Joseph was injured during the course and scope of his employment with NJ Transit. Joseph brought a workers’ compensation action against NJ Transit as well as a third-party action against the tortfeasor involved in the accident. Joseph was notified of NJ Transit’s right to recover all money paid on the workers’ compensation claim from the third party potentially liable for the injuries.
NJ Transit paid Joseph workers’ compensation benefits. Joseph settled with his uninsured motorist insurance carrier and received payment. NJ Transit filed suit seeking reimbursement of its statutory workers’ compensation lien. The trial court denied NJ Transit’s application for order to show cause as premature. NJ Transit appealed.

Holding:

On Appeal, NJ Transit argues Joseph must reimburse NJ Transit for its statutory lien. NJ Transit also argued that the lien should be paid out of the sum recovered from the third-party. They additionally argued that this payment should be paid immediately upon resolution of the third-party action, regardless of the status of their workers’ compensation claim.
Section 40 of the Workers’ Compensation Act creates a lien in favor of the employer for benefits paid that attaches to the employees’ recovery against other tortfeasors. The court interpreted the statute to mean the employer’s right to reimbursement is conditioned on, and triggered by, the employee’s recovery of any sum from a third-party tortfeasor. The statute does not specify when the lien must be satisfied, but it makes clear the specific amount of the lien cannot be determined until the employer’s liability is finalized. When the employer has notified the third-party of its claim, therefore perfecting its lien, the lien is paid to the employer before the employee recovers from the third-party. The employer’s failure to perfect its lien does not prevent the lien from attaching. The employee is still required to reimburse their employer. The court further determined that the lien is not required to be satisfied immediately upon the employee’s recovery. Here, the court stated that there was no indication that the lien had any protection as the funds had already been disbursed. The matter was remanded to the trial court to ensure the lien is protected until the workers’ compensation action is resolved.

Vacated and Remanded.

COURSE AND SCOPE OF EMPLOYMENT

Latshaw v. Lakewood Twp. Police Dep’t
NO. A-3702-21; 2024 WL 1250146
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
Decided: 03/25/2024

Background:

Dawn Latshaw was employed by Lakewood Police Department (“Employer”) as a dispatcher. She was injured in a car accident while she was picking up food during a meal break. During the trip, she did not perform any work-related tasks. Latshaw filed a workers’ compensation claim for benefits. Employer argued she was not injured in the scope of work.
The case was tried before a WCJ. It was undisputed that, in accordance with the CNA, dispatchers were paid for their lunch breaks, even if they left the premises. Employer argued that the accident occurred while she was on a personal errand and therefore the injuries were not compensable. The WCJ found that Latshaw’s injuries were not compensable because she was injured on a personal errand.

Holding:

While the Appeal was pending, the Supreme Court decided Keim v. Above All Termite & Pest Control, 256 N.J. 47, 55 (2023).
There are four rules which define commencement and termination of employment in different scenarios. The scenarios include: (1) the premises rule; (2) the special mission rule; (3) the paid travel time rule; and (4) the authorized vehicle rule. Here, Latshaw was in her own car so the 4^th scenario could not apply. The injury took place on her way back to the police station, so it was clearly not on the premises and covered by the premises rule. Latshaw was getting food for herself and was not required to leave the premises. She was not performing any work duties when the accident occurred. This is in contrast to the employee in Keim, who was injured while driving to get more supplies from his workplace at his employer’s discretion. Therefore, Latshaw is not covered under the special mission rule. Finally, the paid travel time rule applies when (1) the employee’s injury is sustained while going to and from a job site separate from the place of employment and (2) the employee is paid for the time spent traveling. While Latshaw stressed that she was paid for her time during her lunch break, this alone did not establish compensability. The rule establishes that the employee be travelling to and from a job site. Here, Latshaw was traveling to a personal destination.

Affirmed.

NEW JERSEY LEGISLATIVE UPDATE

Senate Bill 4059

This bill establishes the 21^st Century Injured Workers’ Access to Justice Fund. This bill revises the cap on contingency fees to a prevailing party in workers’ compensation matters from 20 percent to 25 percent. In addition, it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind.
Last Action: The bill did not move past the Senate.

CASE SUMMARIES 2/1/2024-2/29/2024

Mar 5, 2024

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
02/1/2024 – 02/29/2024

IMPAIRMANT RATING EVALUATIONS

Steven Conrad v. Department of Transportation (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: February 26, 2024

Issue:

Whether Act 111 is unconstitutional and cannot be applied to injuries before that date?

Background:

In 2005, Employer issued a Notice of Compensation Payable (NCP) accepting liability for a work-related injury sustained by Claimant in the nature of a lower back strain; thereafter, Claimant began receiving temporary total disability benefits.  On September 20, 2011, Claimant underwent an impairment rating evaluation (IRE) which resulted in an impairment rating of less than 50%.  Based on the results of the IRE, the WCJ modified to partial effective September 20, 2011.  On November 1, 2016, before 500 weeks of payment of partial disability benefits expired, Claimant filed a Reinstatement Petition alleging that his impairment rating was invalid and unconstitutional.  A WCJ reinstated Claimant’s total disability benefits as of September 20, 2011. The Board amended the effective date to November 1, 2016, the date Claimant filed his Reinstatement Petition.  On August 11, 2020, Claimant underwent a new IRE pursuant to Act 111, which resulted in an impairment rating of 11%. Employer filed the instant Modification Petition.  The WCJ granted Employer’s Modification Petition under Act 111, to partial effective August 11, 2020. The WCJ also concluded that Employer was entitled to a credit for the weeks of partial disability paid pursuant to the first IRE between September 20, 2011, and November 1, 2016.  The Board affirmed.

Holding:

This Court noted that it has addressed various constitutional challenges to Act 111. Act 111 provided employers with a mechanism to modify a claimant’s disability status from total to partial.  Claimant’s constitutional argument was without supporting references to legal authority or facts that Act 111 unconstitutionally violates his right to equal protection. Claimant was treated no differently than anyone else who is eligible for workers’ compensation benefits; therefore, his equal protection rights could not have been violated. Claimant underwent an IRE which resulted in an impairment rating of 11%, and his disability status was modified to partial disability. Employer then properly received credit for the weeks of partial disability paid between September 20, 2011 and November 1, 2016, pursuant to the plain language of Act 111.

Affirmed.

COURSE AND SCOPE OF EMPLOYMENT – TRAVELING EMPLOYEE

Jorge Martinez v. Lewis Tree Service (WCAB)
Commonwealth Court of Pennsylvania – Published Order
Decided: February 8, 2024

Issue:

Whether Claimant was a traveling employee, entitled to a presumption that he was in the course and scope of employment while driving home from work?

Background:

Claimant worked as a crew leader in Employer’s tree-trimming business. While driving home in his personal vehicle at the end of his workday, Claimant was injured in a motor vehicle accident.  Claimant filed a claim petition which asserted that he was a traveling employee with no fixed place of business.  The WCJ denied the claim petition, concluding that Claimant was not acting within the course and scope of his employment at the time of his injury because, generally, commuting to or from work does not constitute employment and Claimant’s evidence did not establish an exception to this general rule.  The Board affirmed.

Holding:

The court concluded that Claimant’s evidence did not establish that he was a traveling employee without a fixed place of employment. Accordingly, he was not acting in the course and scope of his employment when he was injured in a motor vehicle accident on his way home from work.  Generally, injuries sustained during an employee’s commute are not compensable.  There are exceptions to this rule and an injury sustained during an employee’s commute to or from work can be compensable where any of the following circumstances apply: (1) the employment contract included transportation to and from work; (2) the employee has no fixed place of work; (3) the employee is on special assignment for the employer; or (4) special circumstances are such that the employee was furthering the business of the employer.  Claimant is not eligible for benefits under any exception to the coming and going rule. The determination of whether a claimant is a traveling employee turns on whether the claimant’s job duties involve travel, whether the claimant works on the employer’s premises, or whether the claimant has no fixed place of work.  Claimant reported to the yard, where the truck and equipment needed to trim trees were stored. He then traveled to the location of the tree trimming job. Claimant drove his personal vehicle, not Employer’s vehicle, to and from his home, and Claimant’s workday started at Employer’s yard, not at his home. Claimant was not reimbursed for travel expenses and did not store equipment at his home. Claimant had a fixed place of work, albeit one of short duration.  A change of work location during the day or from day to day does not make a claimant a traveling employee.  Rather, the traveling employee is one whose travel in his own vehicle is essential to furtherance of the employer’s business along with his transportation of the supplies which were stored at his home for his use in his work. Claimant was not furthering the business of Employer while commuting home in his own vehicle from the yard where he began his workday.

Affirmed.

JUDICIAL DISCRETION

Pennsylvania Liquor Control Board v. Dominick Demace, Jr. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 26, 2024

Issue:

Whether the WCAB erred in affirming the decision of the WCJ denying Employer’s termination petition and expanding the nature of Claimant’s work injury?

Background:

Claimant was injured in an auto accident in the course of his employment as a Maintenance Repairman for Employer. Employer accepted Claimant’s injury as strains or tears to his neck and lower back caused by a motor vehicle accident. In 2021 Employer filed the petition to terminate benefits as of the date of an independent medical examination (IME) of Claimant.  The WCJ amended the work injury to include the additional diagnosis and denied Employer’s termination petition. The Board affirmed.

Holding:

Employer argues that Claimant’s Expert’s medical testimony was incompetent because he did not review Claimant’s full medical history, including documentation from his previous primary care provider, but rather reviewed summaries prepared by a member of his office staff.  However, the WCJ is the ultimate fact finder 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. Unless made arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld on appeal. It is of no moment that the record contained evidence to support findings other than those made by the WCJ, as the analysis is only whether there is evidence to support the findings actually made.  It was within the ultimate purview of the WCJ to resolve conflicting evidence in making his findings and Claimant as the prevailing party is entitled to every reasonably deducible inference therefrom.  There was substantial, competent evidence to support the findings made by the WCJ.

Affirmed

JUDICIAL DISCRETION AND THE STANDARD FOR A REHEARING

Augustine Sesay v. SEPTA (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 31, 2024

Issues:

Whether the Board erred in affirming the WCJ’s finding that Claimant is capable of returning to his pre-injury position with Employer?  Whether Attorney incompetence compelled a rehearing?

Background:

Claimant sustained a work injury to his eye during the course and scope of his employment with Employer. Employer issued a Notice of Temporary Compensation Payable (NTCP), agreeing to pay medical and indemnity benefits for an injury described as a laceration of Claimant’s eye/face. The NTCP converted to a Notice of Compensation Payable (NCP).  Later Employer filed the Suspension Petition based on a specific job offer made by Employer.  Claimant then filed a Review Petition, averring an incorrect NCP work-injury description.  The WCJ found that Claimant’s work injury description should be expanded to include traumatic hyphemia and macular edema, but not vitreous degeneration and/or specific loss of use of the right eye as a result of the work incident. The WCJ concluded that Claimant was physically able to perform the position offered by Employer.  The Board affirmed.  Claimant appealed, pro se.

Holding:

The Court concluded that Claimant’s issues on appeal were either waived or without merit and the WCJ did not err or abuse her discretion in issuing her Decision and Order and the Court affirmed the Board.  There is no dispute that Employer offered Claimant his pre-injury position. The position was within Claimant’s medical capabilities. Because PTSD was not added to Claimant’s injury description, it could not serve as a valid ground to challenge the WCJ’s finding that Claimant can return to work.  For attorney incompetence to amount to cause shown for a rehearing, the claimant must satisfy two elements: (i) objective incompetence on the part of counsel, and (ii) manifest injustice to the claimant flowing from that objective incompetence.  There was no evidence in the record that would establish either objective incompetence or manifest injustice.  The record was insufficient to establish that the attorney’s decision to not present certain evidence was born of incompetence and not reasonable legal strategy.  Further, the admission of the evidence would not necessarily have changed the WCJ’s decision. Although this issue was waived, the Court nevertheless would have affirmed the Board if it properly was before them.

Affirmed.

COURSE AND SCOPE OF EMPLOYMENT – PERSONAL ANIMUS

Andrew Ferreria v. West German Motor Import
Superior Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 15, 2024

Issue:

Whether the trial court abused its discretion or committed an error of law when it applied workers’ compensation immunity?

Background:

Claimant was employed by Employer as an automobile detailer. Co-defendants, who were also employed by Employer, physically attacked Claimant. As a result, Claimant sustained bodily injuries. Claimant filed a complaint against Employer for negligence.  Specifically, Claimant alleged that Employer was negligent in allowing the co-defendants to work in the vicinity of Claimant, and that Employer was negligent by failing to timely intervene while the incident was in progress. Employer filed a motion for judgment on the pleadings arguing that Claimant’s claimed injury and negligence against it was barred under the exclusive remedy provision of the WCA.  Claimant argued that the motion should be denied because there is an issue of material fact that needs to be determined by the court. Claimant argued that this case falls under the “personal animus” exception under the WCA. For the exception to apply, the assailant must have intended to inflict the injury for personal reasons unrelated to his employment.  Claimant argued that the motivation of the two co-defendants was a question of fact that had to be determined by the trier of fact.  None of the allegations alleged established that the attack was for personal reasons.  The Motion for Judgment on the Pleadings was granted.  Claimant appealed.

Holding:

Where an injury is covered by the WCA, workers’ compensation is the employee’s sole remedy against employer and the employee may not bring a tort action against the employer.  If the employee was acting in the course of employment when the injury occurred, the injury is presumed to be work-related, and the burden is on the party asserting the personal animus/third party attack exception to prove that the exception applies, and the injury is therefore not covered by the WCA.  Claimant asserted that while he was working for Employer, co-workers physically attacked him, and the attack caused him to sustain physical injuries, emotional injuries, and financial damages. Claimant did not plead any facts asserting that the attack was motivated by personal animosity that was unrelated to his employment. Claimant failed to satisfy the personal animus exception to the exclusivity of the WCA. Claimant’s appeal was denied.

Affirmed.

SPECIFIC LOSS

ALLOWANCE OF APPEAL TO THE PA SUPREME COURT – GRANTED

Jennifer Jackiw v. Soft Pretzel Franchise (WCAB)
Supreme Court of Pennsylvania
February 14, 2024

The PA Supreme Court agreed to hear a case that was reported by the Commonwealth Court on August 10, 2023, wherein the Commonwealth Court held that the Board did not err in affirming the WCJ’s application of precedent and in limiting her compensation rate.  The Commonwealth Court dissent suggested that precedent should be set aside.

The PA Supreme Court held:
AND NOW, this 14th day of February 2024, the Petition for Allowance of Appeal is GRANTED. The issue, rephrased for clarity, is:

Did the Commonwealth Court err in applying Section 306(a) of the Workers’ Compensation Act, 77 P.S. § 511, rather than Section 306(c), 77 P.S. § 513, to determine the benefit rate for the specific loss of a body part, based upon its decision in Walton v. Cooper Hosiery Co., 48 Pa. Cmwlth. 284, 409 A.2d 518 (1980)?

PENNSYLVANIA LEGISLATIVE REVIEW

As of February 29, 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration or consideration.

Regular Session 2023-2024

House Bill 760

Short Title:      An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.
Subject:    Direct Deposit for Workers’ Compensation
This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year.
Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

House Bill 930

Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation.  Expanding Workers’ Compensation for Permanent Disfigurement
Subject:   Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
02/01/2024 – 02/29/2024

BURDENS IN ESTABLISHING COMPENSABILITY

Driscoll v. Costco
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
A-2789-21; 2024 WL 676498
Decided: 02/20/2024

Background:

Laura Driscoll injured her back while lifting a case of water bottles during the course of her employment with Costco. She had no prior history of back injuries. Driscoll treated and was returned to work with a twenty-pound lifting restriction by an orthopedic spine specialist.

Upon Driscoll’s return to work, she was assigned to work inventory which she claimed involved repetitive lifting and bending. Driscoll claimed this aggravated her back and she left work early. Driscoll then filed her first Claim Petition asserting her initial back injury where she lifted water bottles. Driscoll filed a second claim alleging a new injury to her back and an aggravation of her initial back injury.

Driscoll continued to receive authorized treatment. She then moved for Medical and Temporary Benefits and began receiving unauthorized pain management treatment, which included steroid injections. Driscoll’s authorized treatment providers determined she had reached maximum medical improvement and she was cleared to work full duty as nothing else could be done from a pain management standpoint.

A WCJ found that Driscoll’s claim for medical benefits was limited to the time period she was treated by the physician who performed steroid injections. The Judge stated that there was no testimony or medical records for treatment after this time period and it was Driscoll’s burden to present medical evidence in support of her claim. The Judge did find that Driscoll did sustain a second injury in the course of her employment, but that further treatment would be of little benefit.

Holding:

On Appeal, Driscoll challenged the sufficiency of the judge of compensation’s credibility and factual findings.

The Court stated that the petitioner bears the burden of providing medical evidence establishing the compensability of their claim. The Court also recognized that there may be a point where the pain or disability experienced by the worker does not warrant active treatment.

Here, the WCJ’s findings are supported by sufficient credible evidence on the record. Additionally, the Judge fully explained his reasons for denying the discovery motions prior to the testimonial hearing and therefore the Judge’s decision should not be disturbed.

Affirmed.

EMPLOYER’S BEWARE

Please be aware that a Federal Court Judge in New Jersey has awarded sanctions to an Employer for failure to properly preserve video of an incident concerning a slip and fall.  The Employer did preserve the video, however, the Court found that the Employer’s failure to preserve only 5 minutes prior to the time of the incident was improper and awarded sanctions against the Employer for its oversight.  The Court reasoned that in order to assess the situation more than 5 minutes before the incident needed to be viewed to know how long the spill was present, how employees addressed it, etc.  The Court suggests that at least 2 hours prior to the incident should have been preserved.  As such, we would ask that our clients please be aware of this ruling and make sure that not only are videos preserved, but an appropriate amount of time both prior to and after the incident be preserved.

NEW JERSEY LEGISLATIVE UPDATE

Senate Bill 4059

This bill establishes the 21st Century Injured Workers’ Access to Justice Fund. This bill revises the cap on contingency fees to a prevailing party in workers’ compensation matters from 20 percent to 25 percent. In addition, it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind.

Last Action: Reported from Senate Committee with Amendments, 2nd Reading, December 14, 2023

CASE SUMMARIES 1/1/2024-1/31/2024

Feb 8, 2024

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
01/1/2024 – 01/31/2024

STANDARD FOR A REHEARING WITH THE APPEAL BOARD

Jesse R. May v. Dana Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 12, 2024

Issue:

Whether the Board exceeded its discretion by denying the claimant the right to a rehearing?

Background:

On August 1, 2018, Claimant, pro se, filed Petitions against Employer, which were consolidated and assigned to a WCJ. Claimant was represented by his former counsel and, with the assistance of said counsel, executed four C&R Agreements in 2003. The C&R Agreements were approved by a WCJ after the WCJ confirmed, at hearings and based on Claimant’s own credible testimony, that Claimant entered the agreements with full understanding of the terms, conditions, and legal significance. In the four C&R Agreements, Claimant agreed to resolve wage loss benefits for work-related injuries. However, Claimant reserved the right to receive continuing payment from Employer for medical expenses for these injuries, with the exception of the C&R Agreement pertaining to his 1993 work-related injury. Essentially, in his Petitions, Claimant alleged that Employer failed to pay certain medical bills under the C&R Agreements and sought to set aside or otherwise void the four C&R Agreements. The WCJ denied the Petitions, concluding that Claimant failed to establish that Employer intentionally failed to pay reasonable and necessary medical bills, that Employer violated the Workers’ Compensation Act, or that the C&R Agreements should be set aside. The Board affirmed the WCJ’s order denying Claimant’s Petitions. Subsequently, Claimant filed a pro se petition for review.

Holding:

The case, Frymiare, stands for the proposition that, where an employer has an obligation to pay medical expenses, the obligation may not be avoided on the basis that some other source may have initially defrayed the costs.  However, the right to subrogation under Section 319 must be established by agreement or contested litigation at hearings held during the pendency of claim proceedings. Further, the right to subrogation must be timely invoked, and a party asserting subrogation rights must exercise reasonable diligence in protecting its interest.  When the claimant has properly preserved a Section 319 claim, Frymiare stands for the proposition that where an employer is obligated to reimburse reasonable and necessary medical expenses under the Act, it must reimburse them, whether that is to a third-party payor via subrogation or directly to the claimant.  A claimant must preserve a claim for direct compensation.  An untimely claim for subrogation or direct compensation cannot serve as sufficient basis for a penalty petition.  Three months after the WCJ had granted his claim petition, Claimant demanded subrogation as constructive trustee for Insurer for the costs of his hospitalization. This subrogation claim was patently untimely, as the demand occurred well after the conclusion of the claim hearing.  In fact, it was not until February 2021, long after a WCJ had granted his claim petition, that Claimant first sought direct compensation from Employer.  Claimant has offered no explanation for his tardiness, nor has he offered to prove an earlier request for direct compensation.  Claimant failed to establish a timely Section 319 claim.  Therefore, the WCJ adjudicating Claimant’s claim petition did not rule on it. Employer was under no legal obligation to pay for Claimant’s hospitalization. Absent a ruling that Insurer was entitled to subrogation or that Claimant was entitled to direct compensation, Claimant failed to establish a violation of the Act. The Board properly affirmed the denial of Claimant’s penalty petition.

Affirmed.

MEDICAL FEE REVIEWS

Federated Insurance Company v. Summit Pharmacy (Bureau of WC Fee Review)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 2, 2024

Issue:

Whether the Bureau’s adoption and use of Red Book values in payment disputes is inconsistent with Section 306(f.1)(3)(vi)(A) of the Workers’ Compensation Act which limits the reimbursement of pharmaceuticals to 110% of the AWP of the product?

Background:

Federated Insurance Company (Petitioner) petitioned for review of the Order of the Bureau Fee Review Hearing Office in which a Bureau Hearing Officer ordered Petitioner to pay Summit Pharmacy (Respondent) approximately $72,500 to reimburse Respondent for generic drugs provided to Claimant for her work-related injuries.  In ordering reimbursement in this amount, the Hearing Officer used the “Red Book” values for the prescriptions at issue, which the Bureau adopted as the average wholesale price (AWP) to be used in resolving payment disputes over pharmaceuticals. The Red Book is a privately published, electronic compendium of pharmaceutical and over-the-counter drug “AWPs” available online. It is updated regularly to reflect changes in prices.  At the time relevant to this matter, the publisher of the Red Book was IBM Health Watson, although the publisher can, and does, change.   In its statement of policy, IBM Health Watson indicates that the AWP it publishes is, in most cases, the manufacturer’s suggested AWP and does not reflect the actual AWP charged by a wholesaler, that the values used in the Red Book are reported to it by the manufacturer, and that IBM Health Watson does not independently analyze the data to ascertain the amounts paid by providers, such as pharmacies, to wholesalers.  Beginning in 2019, Respondent submitted to Petitioner, and Petitioner paid to Respondent, bills for drugs dispensed to Claimant which were billed at a wholesale price proposed by Respondent.  Petitioner determined that Respondent’s billed pricing was far above the actual AWP of the drugs, as reported in the National Average Drug Acquisition Cost Index (NADAC). Thus, Petitioner began adjusting its payments to be 110% of AWP as determined using NADAC.  Respondent filed applications for fee review.  The Bureau’s Fee Review Section issued determinations applying a different cost index, known as “Red Book,” based upon the cost containment regulations promulgated under the Act.  The Hearing Officer affirmed the Bureau’s fee review determinations.

Holding:

The Court, in a previous matter, already construed the AWP by using its plain meaning, not as a term of art. The plain meaning of AWP is a price that is an industry average not one that is charged by a single manufacturer, and is a number derived by averaging the wholesale prices of all manufacturers or wholesalers.  The Bureau’s regulatory adoption and use of the Red Book’s values as the “AWP” to resolve payment disputes for pharmaceuticals is inconsistent with the phrase “AWP” as interpreted by the Court.  The Red Book’s values cannot be used as AWP as a matter of law because they are inconsistent with the Act.  A remand was required for further proceedings to determine the appropriate reimbursement due to Respondent.  The court ordered that the Bureau has the obligation to identify a “Nationally recognized schedule” that it will use to determine the AWP of prescription drugs to resolve payment disputes and give notice of that schedule in the Pennsylvania Bulletin annually. The court directed the Bureau to promptly identify and publish in the Pennsylvania Bulletin a “Nationally recognized schedule,” that provides an AWP for pharmaceuticals that comports with Section 306(f.1)(3)(vi)(A) of the Act.

Reversed and Remanded.

SUBROGATION – MEDICAL BILL LIENS

Wesley Wheatley v. Pyramid Hotel Group (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 25, 2024

Issue:

Whether Claimant should be compensated directly for the costs of his in-patient hospitalization and other costs?

Background:

Claimant was employed as a cook by Pyramid Hotel Group (Employer). He suffered an injury that resulted in an aggravation of his preexisting asthma, preexisting Type 2 diabetes, and ultimately resulted in diabetic ketoacidosis. Claimant was hospitalized for five days, and Claimant’s private healthcare carrier (Insurer) covered the costs of his hospitalization and treatment.  Subsequently, Claimant filed a claim petition pursuant to the Workers’ Compensation Act.  The WCJ granted his claim petition, found that he had sustained a work-related injury, and ordered Employer to pay Claimant total disability benefits and Claimant’s reasonable and necessary medical expenses related to his work-related injury.   After the decision was circulated, Claimant demanded payment for the costs of his hospitalization as constructive trustee for Insurer. Claimant filed a penalty petition asserting unpaid medical bills.  Employer responded that Insurer’s subrogation rights were waived as untimely raised and that Claimant lacked standing to assert Insurer’s lien. The petition was denied.  Claimant appealed to the Board and the Board affirmed.

Holding:

The case, Frymiare, stands for the proposition that, where an employer has an obligation to pay medical expenses, the obligation may not be avoided on the basis that some other source may have initially defrayed the costs.  However, the right to subrogation under Section 319 must be established by agreement or contested litigation at hearings held during the pendency of claim proceedings. Further, the right to subrogation must be timely invoked, and a party asserting subrogation rights must exercise reasonable diligence in protecting its interest.  When the claimant has properly preserved a Section 319 claim, Frymiare stands for the proposition that where an employer is obligated to reimburse reasonable and necessary medical expenses under the Act, it must reimburse them, whether that is to a third-party payor via subrogation or directly to the claimant.  A claimant must preserve a claim for direct compensation.  An untimely claim for subrogation or direct compensation cannot serve as sufficient basis for a penalty petition.  Three months after the WCJ had granted his claim petition, Claimant demanded subrogation as constructive trustee for Insurer for the costs of his hospitalization. This subrogation claim was patently untimely, as the demand occurred well after the conclusion of the claim hearing.  In fact, it was not until February 2021, long after a WCJ had granted his claim petition, that Claimant first sought direct compensation from Employer.  Claimant has offered no explanation for his tardiness, nor has he offered to prove an earlier request for direct compensation.  Claimant failed to establish a timely Section 319 claim.  Therefore, the WCJ adjudicating Claimant’s claim petition did not rule on it. Employer was under no legal obligation to pay for Claimant’s hospitalization. Absent a ruling that Insurer was entitled to subrogation or that Claimant was entitled to direct compensation, Claimant failed to establish a violation of the Act. The Board properly affirmed the denial of Claimant’s penalty petition.

Affirmed.

TERMINATION PETITION – STANDARD FOR A SUBSEQUENT TERMINATION

Marriott International, Inc. v. Renee C. Loguidice (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 3, 2024 

Issue:

Whether Employer met its burden of proof on the Second Termination Petition?

Background:

Claimant, a bartender, tripped and fell at work, and Employer accepted an upper back injury pursuant to a Notice of Temporary Compensation Payable that converted by operation of law. In 2018, Employer filed Termination and Suspension Petitions. Thereafter, Claimant filed a Petition to Review seeking to expand the description of her work injury. In 2019, a WCJ granted the Petition to Review and denied the Termination and Suspension Petitions.  However, this first WCJ did conclude that Claimant had recovered from a lumbar strain and sprain and, therefore, granted the Termination Petition in that respect.  In 2020, Employer filed a second Termination Petition, which was assigned to a second WCJ.  The second WCJ held that Employer sustained its burden of proving that Claimant was fully recovered from her work injuries as of January 14, 2020 and granted Employer’s second Termination Petition. Claimant appealed to the Board.  The Board reversed, citing Lewis and Browne for the proposition that to terminate benefits, an employer whose termination petition was previously denied must show an actual change in the claimant’s physical condition since the last disability determination. To show an actual change of condition, the Board held Employer’s expert was required to assume that the radiculopathy was work-related.

Holding:

The Board exceeded its authority by reweighing the evidence and not viewing the evidence in the light most favorable to Employer, the prevailing party before the WCJ, or as a whole.  When the record is viewed in its entirety, it reflects that Employer’s expert accepted the judicially determined work injuries, distinguishing this matter from Lewis and Browne, and based his opinion of full recovery from those injuries on his physical examination of Claimant and other evidence.  Employer’s expert’s testimony is legally competent to support the grant of the Second Termination Petition. Once an employer sets forth the change in physical condition required to properly bring a petition to terminate benefits, it still bears a high burden.  Employer’s expert’s entire testimony reflects that he did not dispute or disagree with Claimant’s adjudicated injuries, but opined, based on his physical examination of January 14, 2020, and his belief that Claimant’s responses during that physical exam were incredible, that Claimant had fully recovered. Accordingly, that testimony is legally competent, and the Board erred in finding otherwise on this basis.  Employer’s expert accepted the adjudicated work injuries and opined that Claimant was fully recovered from those work injuries. This opinion is legally competent and, as it was found credible by the second WCJ insofar as it satisfies Employer’s burden of proving a change in Claimant’s physical condition.

Reversed.

RES JUDICATA AND COLLATERAL ESTOPPEL

Marie Louise Boulin v. Brandywine Senior Care, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 2, 2024

Issues:

Whether the WCJ’s decision was erroneous and not supported by substantial evidence of record, and amounted to abuses of discretion?

Background:

Claimant sustained a work-related injury on August 28, 2018, while working for Brandywine Senior Care, Inc. Throughout 2019, the parties filed various petitions, which the WCJ resolved in a January 31, 2020 opinion and order.  Various additional petitions and appeals were filed and disposed of.  Claimant, now pro se, appealed a WCJ’s 2021 decision, which the Board affirmed.  In the present matter as to additional petitions, a new WCJ determined that Employer met its burden of proof on its motion to dismiss on the basis of res judicata principles and denied and dismissed Claimant’s petitions with prejudice. The Board affirmed.

Holding:

The WCJ did not err in finding Claimant’s petitions were barred by res judicata principles.  The WCJ concluded that Claimant’s April 2022 petitions, in essence, sought to relitigate an earlier determination that Claimant had fully recovered from her adjudicated injuries other than the right calcaneal fracture and that Claimant had fully recovered from the right calcaneal fracture.  Claimant was represented by counsel in both prior WCJ proceedings and had a full and fair opportunity to establish the ongoing nature of her injuries in the litigation before the WCJ and to rebut Employer’s termination evidence.  To the extent that Claimant’s petitions seek to challenge the WCJs’ determinations, those matters were previously litigated and are collaterally estopped.  A claimant seeking reinstatement of benefits following a termination carries a heavy burden because the claimant has been adjudicated to be fully recovered.  Claimant must establish that disability has increased or recurred since the prior decision and that the physical condition has changed in some manner.  Furthermore, although res judicata principles may not preclude a post-termination reinstatement petition, when a claimant attempts to relitigate the prior termination rather than trying to meet the requisite burden, reinstatement is not warranted.  Although the WCJ and Board decisions are both framed in terms of res judicata principles, they also amount to conclusions that Claimant did not meet the post-reinstatement termination burden. Claimant asserted that the WCJ’s description of her injury failed to include various additional ailments from the August 2018 incident and that she continued to suffer from symptoms rendering her disabled; therefore, her benefits should be reinstated. However, the decisions were fully and fairly litigated while Claimant was represented by counsel and became final after Claimant’s unsuccessful appeals. Claimant’s claims are therefore barred by res judicata principles.  Although WCJ Rago denied and dismissed Claimant’s reinstatement petition (along with her other petitions) as barred by res judicata principles, the practical effect of the WCJ’s determination is that Claimant failed to meet the post-termination reinstatement burden of showing a change in her condition and increasing or recurring disability. The WCJ did not err in denying Claimant’s reinstatement petition and the Board did not err in affirming that determination.

Affirmed.

REASONABLE CONTEST

Sharon Auxier v. Trinity Health Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 9, 2024

Issue:

Whether the Board overstepped its authority when it partially reversed the WCJ’s award of counsel fees on the basis that Employer’s contest was entirely unreasonable?

Background:

Claimant filed a Claim Petition alleging that she sustained an injury in the course of her employment with Employer, as the result of an Employer-provided desk chair that was allegedly ill-suited for sustained sitting. The Claim Petition further alleged that one of Employer’s own doctors administered an injection into Claimant’s spine that greatly increased the pain and caused radicular pain down the leg.  Employer had issued a medical-only Temporary Notice of Compensation Payable, and a few months later, followed with a Notice Stopping Temporary Compensation, asserting that the injury was not work-related.  In a 2020 decision, the WCJ granted the Claim Petition, and ordered Employer to pay a quantum meruit fee of $12,025.00 to Claimant’s counsel.  Employer appealed to the Board, which affirmed the WCJ in part, and vacated and remanded in part.  The Board concluded that the WCJ erred in awarding counsel fees.  The Board remanded with the instruction that a WCJ was to recalculate fees in accordance with its opinion. The parties signed a stipulation of facts allowing for a $1,525.00 counsel fee. After the WCJ dealt with the remand, the Claimant appealed to the Board.  The Board affirmed.

Holding:

The burden of proving a reasonable contest is on the employer, and unless the employer establishes that its contest was prompted to resolve a genuinely disputed issue, the court will presume that the contest was unreasonable. The Board’s sole basis for determining that Employer had any reasonable contest is that Claimant’s Bertolotti’s Syndrome was preexisting to the work injury. However, it is well settled that an employer is liable for an employee’s disability when that disability is caused by a combination of work-related and non-work-related factors, so long as the work-related cause is a substantial contributing factor to the disability.  The Board’s effort to reapportion the award of counsel fees on a pro rata basis was arbitrary and without foundation.  While the issue of a contest’s reasonableness raises a question of law, case law instructs that the question is a fact-dependent one. The WCJ ‘s conclusion that Employer engaged in an unreasonable contest follows logically from his factual finding that Employer was aware of its causal role in Claimant’s injury just days after it occurred. That finding is supported by substantial evidence.  The Court reversed the Board’s order and reinstated the WCJ’s decision.

Reversed.

FATAL CLAIM PETITION

TA Operating LLC v. Leonard Maurer (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 17, 2024

Issue:

Whether the Board erred in affirming the WCJ’s decision because claimant’s expert’s opinion regarding the cause of Decedent’s cardiac arrest is premised on facts not contained in the evidentiary record?

Background:

Decedent collapsed while at work and passed away shortly thereafter. Claimant filed the fatal claim petition seeking widow benefits, alleging Decedent’s death resulted from a cardiac arrest while in the course and scope of his employment with Employer. Employer filed an answer denying that the cardiac arrest was work related.  Claimant’s expert opined that Decedent’s cause of death was performing significant physical work in a hot environment, that created a condition of cardiac arrest. While he acknowledged that coronary artery disease probably contributed to Decedent’s death, he stressed that Decedent’s cardiac arrest and death could have happened in the absence of coronary artery disease and that the immediate cause, the proximate cause of the event was precipitated by the work he was doing in that hot environment.  The expert conceded that Decedent smoked one pack of cigarettes a day at the time of his death, and there was a period of time where he smoked two to three packs a day and that long-term cigarette use is a substantial risk factor for the development of coronary artery disease. He also conceded that Decedent was at the lower end of the obese definition and obesity is a stressor for the heart. Decedent also had a family history of cardiac issues as his father had coronary artery disease at the age of 59.   The WCJ issued a decision and order granting the fatal claim petition. The Board affirmed.

Holding:

The expert based his testimony upon uncontroverted facts that Decedent was working in 90-degree weather changing a tractor trailer tire alongside a road when he reported feeling short of breath and subsequently collapsed in his work vehicle.  While the expert admitted that he did not know specifically how far into the tire change Decedent got before he collapsed, this was not relevant and did not render his opinion equivocal. The courts have repeatedly rejected the argument in cardiac arrest cases that a claimant needs to prove exactly what the decedent was doing prior to the event.  It was undisputed that Decedent had a very physical job and that his daily job duties involved strenuous physical activity. It was further undisputed that Decedent was responding to a roadside service call for a flat tire on a tractor trailer at the time of his death, and that this type of call was within his usual job duties.  Evidence of how much and what type of activity Decedent was performing that day is not a prerequisite to compensation.

Affirmed.

APPEALS – TIMELINESS

Wesley Wheatley v. Pyramid Hotel Group (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 11, 2024

Issue:

Whether the Board erred by denying his appeal as untimely because he appealed to the Commonwealth Court on September 29, 2021, reasonably believing that since the issues on remand had been resolved, and the parties had previously timely appealed to the Board, finality had been achieved?

Background:

Claimant filed a Claim Petition alleging that he sustained a work-related aggravation of preexisting allergic and asthmatic pathology, respiratory system injuries, and endocrine system acquired diabetes on October 8, 2018. On May 13, 2020, the WCJ granted the Claim Petition. Claimant and Employer appealed from the WCJ’s decision to the Board.  On March 25, 2021, the Board affirmed the WCJ ‘s decision in part, reversed it in part, and remanded the matter.  On August 31, 2021, the WCJ issued an amended decision and order simply granting the Claim Petition in accordance with the Stipulation.  Neither party appealed from the August 2021 Order.   On September 29, 2021, Claimant appealed from the Board’s March 25, 2021 order to the Commonwealth Court.  The Court quashed Claimant’s appeal.

Holding:

Following a Board remand to the WCJ, any aggrieved party must then file an appeal with the Board or ask the Board to certify its original determination as final for appeal to the Commonwealth Court. A Board order remanding a case to the WCJ for further action is interlocutory and cannot be appealed until the WCJ has issued the subsequent order.  After that, the Board, not the Court, must review it before this Court can undertake its appellate review.  Claimant did not appeal to the Board within 20 days of receiving the WCJ ‘s decision on remand.  Section 423(a) of the Act authorizes the Board to extend the time for taking an appeal upon cause shown.  Limited circumstances exist in which an untimely appeal may be considered.  Allowable exceptions include cases involving fraud, a breakdown in the administrative process, or when there is a non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal.  Claimant did not raise to the Board or this Court any non-negligent circumstances or fraud or its equivalent that may have allowed his appeals to proceed nunc pro tunc. Accordingly, neither equity nor the fact that Employer did not challenge Claimant’s Petition is dispositive here.  The Board properly denied Claimant’s Petition as untimely filed.

Affirmed.

JUDICIAL DISCRETION

James Wygant v. Kebert Construction (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 29, 2024

Issue:

Whether the Judge’s decision granting the petition was in error?

Background:

Claimant sustained a work injury on December 14, 2014, while he was employed by Employer as a mechanic. The injury was recognized as a low back strain, and Claimant received weekly benefits based on an average weekly wage of $694.47, resulting in a weekly compensation rate of $466.00, for total disability. Employer filed the Modification Petition, based on a labor market survey. Claimant then filed review petitions, seeking to expand the description of the injury and a Penalty Petition asserting that Employer refused to approve and pay for a spinal cord stimulator.  The WCJ partially granted Claimant’s Review Petitions, granted Employer’s Modification Petition, and denied Claimant’s Penalty Petition. Claimant and Employer appealed to the Board, which affirmed the WCJ’s decision.  Claimant then petitioned the Court for review.

Holding:

A WCJ may modify a claimant’s benefits when a claimant’s disability has ended or decreased pursuant to Section 413(a) of the Act.  As to the Modification Petition, Claimant’s argument that the opinions of Employer’s experts were equivocal or incompetent because they failed to account for Claimant’s RSD/CRPS when they approved him for light-duty work, was misplaced. The expansion of Claimant’s work injury became effective as of the date the WCJ granted Claimant’s Review Petitions but is not applicable to earlier dates. Thus, although Claimant argued that his job limitations in 2017 should have accounted for his additional injuries, the WCJ disagreed, and his findings were supported by substantial evidence in the record. Claimant’s argument on the Penalty Petition failed for a similar reason. When Employer denied payment for the spinal cord stimulator, the relevant additional diagnoses were not part of the injury but became part of Claimant’s recognized injury only when the WCJ granted Claimant’s Review Petitions. Employer was only obligated to pay for the spinal cord stimulator once the WCJ determined that the work injury included those additional injuries. The decision was not arbitrary or capricious, or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.  Further, it was based upon substantial evidence.

Affirmed.

Chester County Hospital and BASIS, Inc. v. Eileen Bangert (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 29, 2024

Issues:

Whether the WCJ and the Board erred in finding that Claimant met her burden of proof under the claim petition?

Background:

Claimant worked as a registered nurse for Employer when she injured her lower back. Employer sent Claimant for physical therapy and issued a notice of compensation denial.  Claimant then filed a claim petition alleging that she sustained an aggravation to her prior work-related back injury. Claimant also filed a penalty petition.  Claimant stated that she worked for Employer in a light-duty position in the hospital nursery because of an earlier work injury to her back. That injury occurred in 1994, and after physical therapy, injections, and medication, she underwent back surgery in 1995. Although Claimant returned to work in December 1997, she never fully recovered from this injury.  The WCJ granted Claimant’s claim petition and denied her penalty petition. The WCJ found that Claimant met her burden of proving that in 2021 she sustained a work injury in the nature of an exacerbation of post-laminectomy syndrome, exacerbation of lumbar radiculopathy, and exacerbation of lower back pain. Employer appealed to the Board and affirmed.

Holding:

For a claimant’s medical evidence to be competent, it cannot be equivocal. Viewing claimant’s expert’s testimony in its entirety, he offered an unequivocal opinion that Claimant’s 2021 work injury consisted of an exacerbation of post-laminectomy syndrome, exacerbation of lumbar radiculopathy, and exacerbation of lower back pain. He fully explained how he arrived at those medical diagnoses, which was corroborated by Claimant’s testimony, medical records, and his own clinical observations. Further, he fully addressed the Claimant’s preexisting chronic back pain and the reason why he determined Claimant suffered a work injury in 2021.  The WCJ’s credibility determinations are binding on appeal.  This Court will not disturb a WCJ’s findings if there is substantial evidence in the record to support the findings. It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ.  The WCJ did not overlook evidence of Claimant’s preexisting conditions. Rather, the WCJ considered the testimony of both medical experts on Claimant’s work injury, medical history, and medical records, and he resolved the conflict between them in favor of Claimant.

Affirmed.

EMPLOYMENT RELATIONSHIP – INDEPENDENT CONTRACTOR

Wilfredo Ayala v. Fundamental Labor Strategies, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion.
Decided: January 2, 2024

Issue:

Whether the Board erred in concluding claimant was an independent contractor at the time of his injury?

Background:

Claimant, a commercial truck driver, began working as a delivery driver for FLS in March 2019. Claimant filed a claim petition alleging he sustained a lumbar disc injury while unloading a window during the course and scope of his employment with FLS.  Based on the testimony presented, the WCJ found Claimant did not establish an employment relationship with FLS and dismissed Claimant’s claim petitions and petition for penalties. The Board affirmed the WCJ’s Decision.

Holding:

For a claimant to receive WC benefits, the claimant must prove an employer-employee relationship exists because an independent contractor is not entitled to benefits.  While no factor is dispositive, control over the work and the manner it is performed are primary factors in determining employment status. Where an alleged employer has the right to select the employee, the right and power to discharge the employee, the power to direct the manner of performance, and the power to control the employee, there is sufficient control to establish an employer-employee relationship. Additionally, payment of wages and payroll deductions are a significant consideration, as is a tax filing noting self-employment. While requests about the manner of work may have come from the clients, FLS did not dictate to Claimant which assignments to accept, how to complete the assignments, what routes to travel, and what times to drive each day or for how long. FLS did not provide a uniform or the vehicles for Claimant to drive, nor did FLS train Claimant. While none of these facts were individually dispositive, taken as a whole, these findings reflect Claimant controlled the time and manner of his work, primarily by his ability to accept or reject assignments.  The Court may not reweigh the evidence or second-guess the WCJ’s credibility determinations.  Further, substantial evidence in the record supports the WCJ’s findings of fact and conclusions of law.  Therefore, the Board did not err in affirming the WCJ’s Decision that Claimant was an independent contractor. As an independent contractor, Claimant was not entitled to WC benefits.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

German Sanchez v. Petrolongo Contractors, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: January 10, 2024

Issue:

Whether the IRE was premature because 104 weeks had not passed since Act 111’s enactment when the IRE was scheduled?

Backgrounds:

The facts were not in dispute. In 2004 Claimant suffered a work injury after being pinned against a wall by a backhoe. Claimant suffered a lumber sprain and strain. Claimant was ordered to attend an IRE, which was originally scheduled for January 15, 2019, and which claimant did not attend until September 5, 2019. Based on his evaluation, Claimant had a 33% impairment rating.  At the modification Petition hearing, Claimant argued the IRE was premature.  The WCJ modified Claimant’s benefits to TPD as of January 15, 2019, the date the IRE was originally scheduled.  Claimant appealed to the Board arguing that an IRE could not be performed until 104 weeks after Act 111 became effective. The Board affirmed.

Holding:

Act 111 plainly provides for credit of weeks of temporary total and partial disability benefits previously paid and that the General Assembly explicitly provided the credit provisions were to be given retroactive effect. The plain language of Section 3 of Act 111 explicitly gives employers credit for previous weeks of disability benefits paid.  The IRE was not premature.

Affirmed.

PENNSYLVANIA LEGISLATIVE REVIEW

As noted previously, there are presently pending before the Pennsylvania General Assembly, a number of Bills which seek to amend the Pennsylvania Worker’s Compensation Act in various ways.  When these Bills are proposed by Pa House members, they go through the House’s Labor and Industry Committee.   When, and if, the Bill is passed by the House, it must go through the Pa Senate for additional review.   As of this date, two of the proposed Bills have passed the House, and are under review by the Pa. Senate’s Labor and Industry Committee.  They are summarized below.  We are monitoring these bills.  As of January 31, 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration or consideration.

Regular Session 2023-2024

House Bill 760

Short Title:      An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.

Subject:         Direct Deposit for Workers’ Compensation

This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year.

Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

House Bill 930

Short Title:      An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation.  Expanding Workers’ Compensation for Permanent Disfigurement

Subject:           Expanding Workers’ Compensation for Permanent Disfigurement

This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.

Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

01/01/2024 – 01/31/2024

DISABILITY BENEFITS

Hughes v. Port Authority of New York and New Jersey
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-1188-22; 2024 WL 336544
Decided: 01/30/2024

Background:

Hughes used to work as a police officer for Port Authority of New York and New Jersey. He suffered a cardiac injury while on the job and filed a claim, asserting he was totally and permanently disabled. A WCJ determined Hughes was thirty three and one third percent partially disabled. In a different trial, a WCJ determined that Hughes’ disability had increased to forty five percent of permanent partial total. The decision was based on testimony presented at trial as well as medical records.

Holding:

On Appeal, Hughes argued that he proved that he had become one hundred percent disabled. He additionally argued for the first time that the WCJ should have required Port Authority to pay a Medicare lien.

The court concluded that the WCJ’s decision is supported by credible evidence in the record. The decision was based on his conclusion that Hughes’s disability had not changed drastically over time as well as his assessment of medical evidence. Hughes argued that the WCJ should have given more weight to the opinion of his medical expert that he was one hundred percent disabled. The court disagreed with this argument and found that the WCJ fully articulated a well-reasoned conclusion for rejecting the expert’s opinion.

The court also noted that there was no significance in finding that Hughes was entitled to Social Security disability benefits as the Social Security Administration has different standards and statutes than the Workers’ Compensation Court.

The court declined to consider the Medicare lien issue as Hughes did not present any evidence of this during the trial.

Affirmed.

NEW JERSEY LEGISLATIVE UPDATE

Assembly Bill 5909/ Senate Bill 4267

This bill revises workers’ compensation coverage to include coverage for injuries to volunteer as well as part-time public safety and law enforcement workers when the injury occurs in response to an emergency.

Last Action: Passed Senate, January 8, 2024

Senate Bill 4059

This bill establishes the 21^st Century Injured Workers’ Access to Justice Fund. This bill revises the cap on contingency fees to a prevailing party in workers’ compensation matters from 20 percent to 25 percent. In addition, it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind.

Last Action: Reported from Senate Committee with Amendments, 2^nd Reading, December 14, 2023

CASE SUMMARIES 12/1/2023-12/31/2023

Jan 3, 2024

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
12/1/2023 – 12/31/2023

EMPLOYER AND CO-EMPLOYEE IMMUNITY FROM LAWSUITS

John Brown v. George Gaydos, t/d/b/a Gaydos Construction
Superior Court of Pennsylvania – Published Opinion
Decided: December 7, 2023

Issue:

Whether the Court erroneously concluded that Defendant construction company was immune from third-party liability as Plaintiff’s co-employee?

Background:

In 2007 or 2008, Gaydos began doing general construction work as a sole proprietor using the name Gaydos Construction.  For the business, Gaydos purchased various trucks and tools. On April 9, 2016, Gaydos and his cousin, Raymond, signed a partnership agreement to operate a business under the name ACS.  All concrete and masonry jobs were bid and performed by ACS. The construction equipment and tools were owned by Gaydos, including a skid loader. Gaydos and Raymond agreed that each of them would furnish any equipment or tools they owned individually that were needed to perform the work on ACS’s jobs. They agreed that ACS would not own those tools and equipment and would not compensate either of them for use of those tools and equipment.  Plaintiff began working as an ACS employee on September 1, 2016. On that day, the skid loader owned by Gaydos was at the site. As Plaintiff attempted to enter the skid loader, the arm of the skid loader caught his body, seriously injuring him.  He thereafter made a claim for workers’ compensation benefits from ACS.  The workers’ compensation claim was not disputed.  Plaintiff initiated the civil action against Gaydos, alleging his negligence in improperly maintaining the skid loader and failing to supervise or train Plaintiff on its use.  Gaydos filed a motion for summary judgment asserting that Plaintiff’s claims were barred by the WC Act.

Holding:

In exchange for receiving workers’ compensation benefits without having to prove negligence, employees may not sue their employers in tort for injuries they incurred in the course of their employment.  Nevertheless, the courts of this Commonwealth have recognized the “dual capacity” doctrine, where an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as an employer.  This doctrine is inapplicable when the employee’s compensable injury occurred while he was actually engaged in the performance of his job.  Gaydos held an ownership interest in ACS and had the ability to direct ACS employees, including Plaintiff, with respect to the work to be performed and the equipment that could be used for each task. However, as an LLC, ACS was a distinct legal entity and, therefore, Gaydos was not personally responsible for ACS’s legal obligations, such as maintaining workers’ compensation insurance for its employees. Plaintiff filed his workers’ compensation claim against ACS rather than Gaydos.  As Gaydos did not directly employ Plaintiff and did not exert exclusive control over ACS, there remained a genuine issue of material fact as to whether Gaydos was Plaintiff’s “master” under the WC Act. The trial court erred by granting summary judgment in favor of Gaydos on the basis of the employer immunity.  The trial court also erred in granting summary judgment on the alternative basis that Gaydos was Plaintiff’s co-employee at the time of the accident, and, therefore, entitled to immunity.  The mere fact that both parties held positions of employment with the same employer at the time of the accident is not sufficient to show that they were in the same employ at the time of the accident. Rather, the act or omission must occur while both employees are in the course of their performance of duties for the employer.  There is a genuine issue of material fact as to whether Gaydos was acting in furtherance of his duties as an employee/co-owner of ACS at the time of Plaintiff’s injury.

Reversed and Remanded.

FILING A TERMINATION PETITION WHILE AN APPEAL IS PENDING

Joseph Marvelli v. U.S. Foods, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 21, 2023

Issue:

Whether the WCJ erred by addressing Employer’s Termination Petition while Claimant’s appeal of the injury description, as determined by another WCJ was still pending before the Board?

Background:

Claimant experienced sudden pain in his neck, shoulders, and upper back. Employer accepted liability for the injury through a medical-only Notice of Compensation Payable (NCP), which described the injury as a strain or tear of the shoulder.  Claimant submitted Claim, Reinstatement, and Review Petitions, in which he alleged that the injury description should be expanded to include injuries to his neck and back, including lumbar radiculopathy.  Employer filed a Review Petition of its own, in which it sought to amend the injury description from a shoulder injury to a strain of the cervical spine, consistent with the results of an IME of Claimant.  The WCJ amended the description of the work injury to a “cervical spine strain with strain of the surrounding paravertebral area.”  On appeal to the Board, Claimant argued that his proposed amendment of the injury description was erroneously rejected.   While Claimant’s appeal of first WCJ decision was pending before the Board, Employer filed a Termination Petition, in which it alleged that Claimant was fully recovered from his work injury as of March 15, 2019.  The WCJ dismissed it on the basis that the injury description was not settled and currently on appeal to the Board.  The Board vacated the WCJ’s dismissal of the Termination Petition and remanded for a decision on its merits.  On remand, the WCJ granted the Termination Petition.

Holding:

Employer was not barred from filing its Termination Petition while his appeal was pending before the Board.  Bechtel Power Corporation holds that when an appeal is pending, a party may not file a petition that would essentially relitigate issues identical to those to be reviewed on appeal.  However, the prohibition of a subsequent petition applies when both the issues and facts in the two petitions are identical. Alternately, when the petitions are based on different sets of facts, there is no re-litigation of issues that have already been decided and a party is not barred from filing a subsequent petition while the previous petition is on appeal.  Employer’s Termination Petition did not seek to relitigate any factual findings settled by the previous litigation.  Further, it was based on a different set of facts from those underlying Claimant’s Claim, Reinstatement, and Review Petitions.  Most notably, Employer’s Termination Petition did not challenge the injury description as it was already determined by first WCJ.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

Craig A. Davis v. XPO LTL Solutions (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 22, 2023

Issue:

Whether the WCJ erred in reinstating Claimant’s benefits as of the date he filed his Reinstatement Petition?

Background:

In 2013 Claimant sustained a lower back injury during the course and scope of his employment as a dock worker with Employer. Employer requested an IRE, which determined that Claimant had a 6% impairment rating under the 6th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) and 10% impairment based on the 4th Edition of the AMA Guides.  Employer filed a Notice of Change, modifying Claimant’s disability status from total to partial as of the date of the IRE. Claimant did not contest the Notice of Change at the time of its filing.  On February 4, 2021, before the 500 weeks of his partial disability expired, Claimant filed a Reinstatement Petition seeking a reinstatement of his TTD benefits effective the date of the IRE.  The WCJ granted the reinstatement of Claimant’s benefits back to TTD status as of the date Claimant filed the Reinstatement Petition.  The Board affirmed.

Holding:

Claimant did not challenge the decision modifying benefits. Claimant did not file his Reinstatement Petition seeking reinstatement in the instant case until February 4, 2021. Therefore, the WCJ correctly reinstated Claimant’s total disability status as of the date he filed his Reinstatement Petition, rather the date of the IRE.

Affirmed

JUDICIAL DISCRETION

Lorraine Majette v. Allentown School District (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 22, 2023

Issue:

Whether the WCJ failed to consider and appropriately weigh her evidence, and is the decision supported by substantial evidence?

Background:

Claimant was a special education teacher with Employer. Claimant filed the Claim Petition alleging that during her morning duty two boys fighting in the hallway struck Claimant in her back and she was slammed into a wall.  Claimant sought ongoing full disability benefits beginning that date.  The WCJ found Claimant met her burden of proving she sustained a compensable work injury on February 19, 2019.  The WCJ did not include shoulder injuries or rotator cuff tears in the description of Claimant’s injury.  The WCJ further found Claimant fully recovered from her back injuries as of January 9, 2020 and suspended her wage loss benefits on that date.  The Board affirmed the WCJ Decision, concluding the WCJ did not err when she found Claimant did not sustain a work-related injury to her shoulders.

Holding:

After considering Claimant’s testimony and the medical evidence presented, the WCJ found Claimant suffered a work injury, albeit not the full extent she alleged in her Claim Petition. The WCJ made reasonable credibility determinations and weighed the evidence, which a WCJ has authority to do in workers’ compensation cases. Ultimately, Claimant did not meet her burden of proving the incident at work caused a shoulder injury.  Substantial evidence supports the WCJ’s findings, and the Board did not err when it affirmed the WCJ Order.

Affirmed.

George Roscoe v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 20, 2023 

Issue:

Whether the WCJ improperly admitted and credited the amended IRE report?

Background:

On March 20, 2003, Claimant suffered a right knee fracture. Since then, his disability status has alternated between total and partial. In 2012, the parties resolved a petition for modification via stipulation that changed Claimant’s disability status from total disability to partial disability. The 2012 modification was deemed effective as of August 15, 2011.  On August 12, 2020, Claimant filed a petition seeking to reinstate total disability because he alleged that the IRE conducted in 2011 was unconstitutional. On February 8, 2021, this petition was granted, and Claimant’s total disability status and benefits were reinstated as of August 12, 2020.  An IRE on August 12, 2021 concluded that Claimant was 3% impaired. During her testimony, the IRE doctor noted an error she had made in her initial report. That same day, October 1, 2021, she issued an amended IRE report correcting the error, opining a 4% impairment. The WCJ granted Employer’s modification petition and modified Claimant’s benefits to temporary partial disability as of October 1, 2021.

Holding:

The amended IRE report was not inadmissible and could be credited by the WCJ.  The admission of evidence is within the sound discretion of the WCJ. A WCJ’s determination regarding the admission of evidence will not be overturned without a showing of an abuse of that discretion.  The WCJ acted within her discretion in admitting the amended IRE report.

Affirmed.

ALLEGED ATTORNEY NEGLIGENCE

Kelly A. Finck v. Union County Commissioners (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 18, 2023

Issues:

Whether Claimant’s counsel was ineffective by failing to present additional evidence?

Background:

On October 30, 2016, Claimant allegedly slipped and fell on a wet floor while working as a cook, injuring her hip. Claimant filed her first claim petition on February 10, 2017.  Thereafter, Employer offered Claimant a light-duty, part-time position as a receptionist, and Claimant worked in that capacity from August 24 until October 10, 2017.  Prior to returning to light-duty work, Claimant’s husband was convicted of an election-related offense and sentenced to a period of incarceration. The light-duty position Claimant was assigned was located just outside the election board’s office, and, as a result, Claimant had frequent contact with individuals she blamed for her husband’s arrest.  On April 11, 2018, Claimant filed a second claim petition alleging anxiety disorder and panic attacks caused by actions of other County employees.  The WCJ denied and dismissed both claim petitions. The Board affirmed.

Holding:

While the effective assistance of counsel is not constitutionally mandated in the workers’ compensation context, proven incompetency may constitute cause shown for a rehearing under Section 426 of the Act.  However, an attorney’s mere misjudgment about a strategic choice, which was a conscious and deliberate decision, will not be sufficient to warrant a reversal of the Board’s discretionary decision to deny a rehearing.  For attorney incompetence to amount to “cause shown” in this context, the claimant must satisfy two elements: (i) objective incompetence on the part of counsel, and (ii) manifest injustice to the claimant flowing from that objective incompetence.  Here, Claimant’s counsel reasonably could have concluded that further evidence in an already evidence-rich case could divert the WCJ’s attention from the most important issues. Counsel could have reasonably concluded that further cross-examination, too, would detract from the overall message of Claimant’s case, unduly burden the witnesses, and prejudice Claimant’s case. And finally, counsel could have reasonably concluded that the “gossiping” of which Claimant complained was not sufficiently egregious or prejudicial to Claimant’s case to distract from the issues to which counsel wanted to direct the WCJ’s attention.  Further, the record belies any suggestion of incompetence. Therefore, the claimant has failed to meet the standard.

Affirmed.

OFFSETS – SEVERENCE BENEFITS

Warminster Township v. Sean Murray (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 20, 2023

Issue:

Whether the Board’s conclusion that Employer was not entitled to a credit for severance benefits that Claimant received under his separation agreement was correct?

Background:

Claimant worked as a skilled laborer in Employer’s public works department for 13 years.  Claimant went on paid leave in March 2019 due to an ongoing injury to his right knee. Claimant never returned to work and ultimately signed a separation agreement on December 6, 2019, resigning his position and releasing Employer from liability for various legal claims in exchange for one year’s salary.

Holding:

The Court affirmed the Board’s order in part and reversed in part. The Court reversed to the extent the Board concluded Employer was not entitled to a credit for net severance benefits Claimant received under his separation agreement and remanded to the Board with instructions to further remand to the WCJ for calculation of the correct credit, consistent.  Employer should have received a credit for payments made to Claimant under the separation agreement, which fell squarely within the definition of a “severance benefit.”  Claimant’s separation agreement provided he would receive one year’s salary, totaling $48,422.40, “subject to all required withholdings and deductions, with the exception of any deductions for pension and health insurance.”

Reversed and Remanded.

MENTAL/MENTAL INJURIES

Erin Smith v. Warwick School District, et al (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 20, 2023

Issue:

Whether the Board erred in concluding Claimant failed to establish the existence of an abnormal working condition?

Background:

On April 20, 2017, Claimant filed a Claim Petition alleging that on April 23, 2014, while working as a teacher, she experienced disabling psychological injuries because “Employer intentionally, recklessly, and/or negligently falsely accused the Claimant of child abuse.” The WCJ found Employer’s discipline of Claimant for her actions regarding a student was “unusual.” Further, the WCJ found Claimant met her burden of proving a psychological injury, “adjustment disorder with mixed anxiety and depressed mood,” and it resulted from her experiences during April and May 2014. The WCJ granted Claimant’s Claim Petition and awarded her benefits.  Both the School District and Claimant appealed the WCJ decision to the Board.  The Board disagreed with the WCJ’s conclusion that Claimant established the existence of an “abnormal working condition.”

Holding:

In this mental/mental case, Claimant must prove she suffered the injury caused by her employment and that an abnormal working condition caused the mental injury.  Psychological injury cases are highly fact-specific and must be considered in the context of specific employment.  The WCJ found an abnormal working condition existed because the particular discipline Employer meted out, a five-day suspension without pay, was unusual given the lack of evidence to support it.  However, as the Board indicated, not agreeing on the ultimate decision by the administration, obtained through the proper procedures, does not create an abnormal working condition.  The WCJ credited Employer’s witnesses who testified the events were not highly unusual or extraordinary, including that it was not unusual for complaints of suspected child abuse being made to authorities, nor was it unusual for a school district to investigate allegations of suspected child abuse and it was not unusual for a school district to discipline an employee for deficiencies in performance, for an employee or union to file a grievance, for an arbitrator to partially grant and partially deny a grievance, for a school district to remove a teacher from a classroom and place her in an administrative office during an investigation, nor was it unusual for a school district to change the assignment of a teacher. Additionally, an independent consultant, testified the circumstances Claimant encountered were not unusual. This type of situation was not completely out of the ordinary for a teacher to potentially experience, and the investigation was done with professionalism and through the proper procedures.  Disagreeing with the result of a proper investigation does not transform that investigation into an abnormal working condition.  This Court did conclude abnormal working conditions existed when an employer accused its office manager of embezzlement and threatened her with jail, despite knowing the accusation was false. Miller v. Workers’ Comp. Appeal Bd. (New Wilmington Fam. Prac.).  This Court also held abnormal working conditions existed when an employer falsely accused an office clerk of committing a wrongful act, intimidated her, and threatened to terminate her employment, all despite knowing the accusation was false. U.S. Airways v. Workers’ Comp. Unlike in the present case, in Miller and U.S. Airways, employers knowingly made false accusations and participated in other intimidating or aggressive actions. In the case of Claimant, someone filed a complaint with the authorities and Employer investigated it with professionalism and with proper procedures.  The Board did not err in reversing the WCJ when the Board held Claimant failed to establish the existence of an abnormal working condition in her “mental/mental” claim for workers’ compensation benefits.

Affirmed.

CONCURRENT EMPLOYMENT

Resources for Human Development, Inc., et al v. Sherry Dixon (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: December 20, 2023

Issue:

Whether the WCJ’s decision increasing Claimant’s AWW to include her concurrent employment for Public Partnerships was erroneous?

Background:

Claimant, a home health aide, sustained a work-related injury when a patient fell onto her. Employer accepted an injury in the nature of a multiple trunk strain or tear.  The NTCP listed Claimant’s weekly compensation rate as $468.00 based on an AWW of $520.00. Claimant filed the Review Petition, alleging that her AWW did not include wages from her concurrent employment as a private duty home health aide with Public Partnerships.  The WCJ found Claimant had concurrent employment.  The Board affirmed.

Holding:

The WCJ correctly distinguished that the law does not require Claimant to have been working for Public Partnerships on her actual day of injury to receive a higher AWW, and that Claimant’s longstanding and ongoing employment with Public Partnerships constituted concurrent employment.  Claimant was concurrently employed at the time of her injury. The employment relationship remained sufficiently intact so as to constitute concurrent employment for purposes of Section 309(e).  Further, substantial evidence supported the WCJ’s findings, and the conclusions were consistent with Section 306(e) and precedent.

Affirmed.

EMPLOYMENT RELATIONSHIP – BORROWED SERVANT

Anthony Mason v. NE Architectural Products et al.
Superior Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 21, 2023

Issue:

Whether the trial court erred in ruling that Plaintiff was Daron’s borrowed employee as a matter of law?

Background:

Mason (Plaintiff) instituted a negligence action following a work-related injury he suffered while working at defendant Daron’s manufacturing plant. Approximately a month prior to the injury, Plaintiff went to Express Services, Inc. (Express), a temporary employment agency, in search of employment.  When Plaintiff arrived at Daron for work, one of Daron’s supervisors gave him a tour of the facility, and provided him with hearing protection, eyewear, and gloves. Daron had a “brief” discussion with Plaintiff concerning his job responsibilities.  The accident occurred when Plaintiff stopped the conveyer belt after noticing “a brick was angled improperly” as it entered the palletizer.  Plaintiff initiated this negligence action against Daron and Daron thereafter filed an answer and new matter, and later, a motion for summary judgement, asserting it was statutorily immune from liability as Plaintiff ‘s employer. The trial court granted Daron’s motion and entered judgment in its favor.

Holding:

The trial court found Daron was immune from liability under the WCA because Plaintiff was his “borrowed employee,” as Plaintiff passed under the Daron’s right of control with regard not only to the work to be done but also to the manner of performing it. The Court found no error here.  There was no contract between Express and Daron and, therefore, no explicit language describing the relationship between the parties.   Daron directed Plaintiff as to the manor of his work and trained him how to do it.  The focus is on whether Daron had the right to control not only the work to be done but also the manner of performing it, regardless of whether Daron “actually exercised” that control.   Accordingly, the trial court did not err or abuse its discretion when it determined, as a matter of law, that Plaintiff was Daron’s “borrowed employee” at the time of his accident, and that, therefore, Daron is immune from civil liability under the WCA.

Affirmed.

MEDICAL FEE REVIEWS

Pennsylvania L.C.B. v. 3B Pain Management (Bureau of WC Fee Review H.O.)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 4, 2023

Issue:

Whether the Hearing Officer erred by ruling that Employer was liable for payment of Claimant’s medical and chiropractic treatment?

Background:

Claimant fell in the parking lot outside Employer’s store. Claimant filed a claim petition alleging that he sustained an injury in the course and scope of his employment.  The WCJ granted the Claim Petition, describing Claimant’s injury as a “meniscal tear of the right knee and chondromalacia of the femoral and tibial condyle of the right knee.” Provider administered chiropractic treatment to Claimant. This treatment consisted of spinal manipulation relating to low back pain, manipulation of Claimant’s knees and his right hip for pain, low level laser treatment on his right knee, and therapeutic massage for unidentified muscle spasms. Provider billed Employer’s TPA for this treatment as it related to Claimant’s work injury. TPA denied payment for a large part of these invoices on the basis that the procedure codes were not valid reimbursable codes and/or were invalid for reimbursement under the Act.  Provider filed a fee review application and the Bureau’s Fee Review Section determined that the amount owed for each invoice was $0. Provider contested the fee review determinations, and the Hearing Office assigned the Hearing Officer to conduct hearings. At the hearings, TPA argued that Provider’s invoices were for treatments to Claimant’s right knee, left knee, left hip, and back, which were not related to Claimant’s accepted work injury. Provider asserted that, because TPA’s denials were based on a lack of causal relationship between the treatment and the work injury, TPA was required to seek utilization review.  The Hearing Officer determined that Provider was entitled to reimbursement for all of the treatment it provided to Claimant because Employer/TPA had neither sought UR of Provider’s treatment, nor filed a review petition related to said treatment. Employer appealed to this Court.

Holding:

The fee review process is limited to the timeliness of the employer’s payment (or denial) and the correct amount of reimbursement owed to the provider.  The fee review process presupposes that liability has been established.  Once liability for a work injury has been established, the employer may file a modification petition to change the scope of the accepted injury, or it can seek UR.  A claimant may be under treatment for an array of medical problems, only some of which relate to the work injury. It is for the UR organization to sort this out.  If the treatment was prescribed for a medical problem that is not work-related, a fortiori it is not reasonable or necessary for treatment of the accepted work injury.  Here, Employer’s claim that the disputed treatment was not related to Claimant’s work injury was just another way of stating that it was not a reasonable or necessary ‘procedure’ for treating Claimant’s ‘diagnosis.’  Employer was obligated to seek UR to dispute liability for Claimant’s treatment.

Affirmed.

ORDER THAT OPINION BE REPORTED

Bernice Bennett v. Jeld Wen, Inc. (WCAB)

On December 15, 2023, upon consideration of Respondent Jeld-Wen, Inc.’s Motion for Publication of Memorandum Opinion (Motion), the Court granted the Motion.  The Memorandum Opinion, filed October 6, 2023, will be designated an opinion and will be reported.

Issues:

Whether the Board usurped the jurisdiction of the Hearing Office by granting a de novo hearing and allowing appeals nunc pro tunc of unappealed decisions of the Bureau?  Whether the Board erred in reversing the WCJ’s assessment of penalties?

Background:

Claimant sustained a work-related injury in 2010.  By a C&R Agreement approved by the WCJ on October 19, 2017 the parties resolved the wage loss and specific loss claims relative to Claimant’s work injury. The C&R Agreement indicated that Employer reserved the right to either continue administering Claimant’s medical benefits in accordance with the Act or to fund a CMS-approved MSA.  Later Claimant’s doctor prescribed a compound cream. When Carrier did not issue payment, Pharmacy filed Fee Review Applications with the Medical Fee Review Section of the Bureau.  Ultimately, 12 administrative determinations were issued ordering payment of the bills with interest, which Employer did not appeal. Employer made no payments to Pharmacy for those dates of service.  Eventually, Claimant filed the Penalty Petition.  The WCJ issued a July 2020 Decision finding that Claimant had met her burden of proving that Employer violated the Act.  The Board granted Employer’s Petition for Hearing.  The Board concluded that a de novo hearing under Section 425 was warranted to address the issue of a prohibited self-referral and to allow for submission of Hearing Officer Torrey’s Fee Review Decision into evidence.  The Board concluded that while Claimant had established that there were unpaid bills, Employer consistently defended its actions, arguing that the bills were not payable because of the relationship between prescriber and Pharmacy and asserting that its attempts to obtain the information of that relationship were consistently rebuffed.  The Board held that while any penalty would be paid to Claimant, the WCJ directed Employer to pay Pharmacy tens of thousands of dollars, allowing for the potential that prescriber and Pharmacy would reap a financial benefit from Claimant’s Penalty Petition.  Any penalty award to Claimant is tied to the potential improper conduct of her physician and pharmacy. The Board concluded that, if the improper conduct was confirmed, it would decline to allow financial benefit from it.   In the interest of justice, the Board vacated the WCJ’s grant of the Penalty Petition and award of unreasonable contest fees and ordered a de novo hearing before the Board, after which the Board would decide the issue of the Penalty Petition.  After the de novo hearing, the Board affirmed that, Employer established that it had not violated the Act, and the Board denied and dismissed the Penalty Petition.

Holding:

The Board did not abuse its discretion or err in granting the Section 425 de novo hearing under these highly unusual circumstances, or in relying on the evidence presented therein that confirmed the unpaid bills were the result of a prohibited self-referral for which no claim for payment could be made under Section 306(f.1)(3)(iii), we affirm the Board’s denial of the Penalty Petition and Claimant’s request for unreasonable contest attorneys’ fees.

Affirmed.

PENNSYLVANIA LEGISLATIVE REVIEW

As noted previously, there are presently pending before the Pennsylvania General Assembly, a number of Bills which seek to amend the Pennsylvania Worker’s Compensation Act in various ways.  When these Bills are proposed by Pa House members, they go through the House’s Labor and Industry Committee.   When, and if, the Bill is passed by the House, it must go through the Pa Senate for additional review.   As of this date, two of the proposed Bills have passed the House, and are under review by the Pa. Senate’s Labor and Industry Committee.  They are summarized below.  We are monitoring these bills.  As of December 31, 2023, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration or consideration.

Regular Session 2023-2024

House Bill 760

Short Title:      An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.

Subject:           Direct Deposit for Workers’ Compensation

This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year.

Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

House Bill 930

Short Title:      An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation.  Expanding Workers’ Compensation for Permanent Disfigurement

Subject:           Expanding Workers’ Compensation for Permanent Disfigurement

This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.

Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

12/01/2023 – 12/31/2023

EMPLOYMENT STATUS AND SCHOOL

Soto v. Hoosier Care, Inc.

Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-0507-22; 2023 WL 8539408
Decided: 12/11/2023

Background:

Soto was injured while working for Hoosier. Soto filed a claim petition alleging injuries to her neck, head, back, and shoulder. The claim was settled and approved by a workers’ compensation judge. The agreement acknowledged Soto’s “re-opener” rights, which allow her two years to seek additional medical care as well as an increase in permanent or temporary disability.

Following her injury, Soto worked for different agencies and began taking classes at a college. Ultimately, Soto was out of work after the agency she worked for closed and she received unemployment benefits while remaining a full-time college student.

Soto filed an application for a review or modification of her compensation award a year after her award, alleging she suffered additional pain and had worsened range of motion in her neck and shoulder. Soto was evaluated again by her medical expert who determined she had additional issues with her spine and that her work injury was a material contributing factor.

Hoosier provided medical benefits but declined to provide temporary disability benefits. A WCJ ordered temporary disability benefits and found that Soto was both working and going to college; specifically finding that Soto did not voluntarily leave the workforce. Hoosier moved for reconsideration, which the WCJ denied.

Holding:

On Appeal, Hoosier argued that Soto did not meet her burden of proof “because she was unemployed at the time of her application and failed to prove that she would have been working ‘but for the work related injury.’”

The Court found that the argument is without merit. Soto became unemployed because her employer went out of business. She continued to search for employment and collect unemployment benefits at the time of her application. “[C]ollege attendance alone is not dispositive of her employment status.” The WCJ found that Soto’s testimony that she continued to work and seek employment while also attending school was credible. The record supports that she would have been working if not for the disability.

This case is distinguishable from Tamecki v. Johns-Manville Products Corporation. In that case, a college student was injured during a temporary summer position and received temporary disability benefits until his return to school. Here, Soto testified that her college status did not change her involuntary employment status.

Additionally, Soto established through her medical examiner that her injuries worsened and that the worsened injuries were causally related to her work injury.

Affirmed.

INTENTIONAL WRONG EXCEPTION

Hueman v. Hueman

Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-1593-21; 2023 WL 8539709
Decided: 12/11/2023

Background:

A company agreed to perform masonry work as a contractor for a home construction project. The contractor, Wayne, would often hire his cousin, Glen, to help him with masonry jobs and he would be paid in cash with his employment never formally reported. Glen agreed to help with the masonry job and would mix the mortar using a mortar mix which Wayne had modified. Glen used the mixer several times without issue before suffering an injury to the eye when he attempted to start the mixer. The injury resulted in the removal of his eye and the need for a prosthetic.

Glen filed a claim petition. He additionally sued for negligence, which Wayne argued was barred by the Workers’ Compensation Act. Glen testified that although he never received instruction on how to use the mixer, he had experience with it from working on other masonry jobs. He also testified that Wayne had indicated to him that he had insurance. Wayne testified that at the time of the incident, he was unaware of his statutory requirement to have workers’ compensation insurance as he mostly worked by himself. He additionally testified that the modification to the mixer was a common practice in the industry. Wayne’s medical expert concluded that “Glen’s injuries were not ‘attributable to an intentional act’ by the defendants” because the modification was a “long-standing industry practice” and there was not a substantial certainty that the modification would cause the injuries.

Wayne moved for summary judgment arguing that Glen’s claims were barred by the Workers Compensation Act because Glen was an employee, and the modification was not an intentional wrong. Glen alleged the claims were not barred by the Act because Wayne failed to obtain required workers’ compensation insurance and Glen was a casual employee. The court granted Wayne’s motion for summary judgment and dismissed Glen’s complaint with prejudice. The court determined that Glen was Wayne’s employee.

The court found that Wayne’s failure to have workers’ compensation insurance “was not dispositive to permit plaintiff to assert a third-party negligence claim” because it was not an exception to the workers’ compensation bar. The Uninsured Employers’ Fund was intended for situations like this.

Holding:

On Appeal, Glen claims the Fund does not compensate Glen adequately because it does not allow for permanent disability recovery. They additionally argue that there is an issue of material fact as to whether Wayne knew the modification could result in Glen’s injury.

The Court stated that the legislature anticipated situations where employers failed to or refused to compensate their employees under the statute.  The Legislature created the Fund and there is also the ability to bring civil and criminal suits.

To demonstrate an intention harm, the employee “must satisfy a two-prong test involving the employer’s conduct and ‘the context in which that conduct takes place.’” To prove the conduct prong, “the employee must ‘establish the employer knew that its actions were substantially certain to result in injury or death to the employee.’” To prove the context prong, “the employee must demonstrate ‘the resulting injury and the circumstances of its infliction were more than a fact of life of industrial employment and plainly beyond anything Legislature intended the WCA to immunize.’”

Here, the Court did not find that Wayne’s actions satisfy the high bar to apply the intentional wrong exception. There is no evidence that Wayne knew the modified mixer would result in injury. In addition, the modification was common practice in the industry.

Affirmed.

Rodriguez v. Shelbourne Spring, LLC, Green Power Developers, LLC, Unity Construction, Rocco A. Dimichino, Sundance Electrical Co., LLC, SF Johnson Electric, Inc., Facility Solutions Group, Johnson Controls Security Solutions, LLC, Managed Business Communications, Inc., SIR Electric, LLC v. Hartford Underwriters Insurance Company

Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2079-22; 2023 WL 8868415
Decided: 12/22/2023

Background:

Dionicio Rodriguez (Rodriguez) received benefits under the Workers’ Compensation Act from his Employer SIR Electric, LLC (SIR) after being injured at work. Then Rodriguez filed an action against SIR alleging his injuries were caused by SIR’s negligence, recklessness, and intentional misconduct. SIR wanted defense coverage for the tort claims from Hartford under its employer’s liability insurance policy. The coverage included employer’s liability and workers’ compensation insurance. Hartford denied coverage and asserted it had no duty to defend based on its Employer’s Liability EII exclusion. SIR then filed a third party complaint that Hartford had a duty to defend the negligence claims. Hartford filed a motion to dismiss, which was granted.

Holding:

On Appeal, SIR argued that even though Rodriguez received workers’ compensation benefits, Hartford had a duty to defend the tort lawsuit. SIR additionally argued that Hartford did not have to indemnify SIR for Rodriguez’s claim.

The Workers’ Compensation Act provides that “workers’ compensation is the exclusive remedy, absent proof of an intentional wrong.” Therefore, the tort claims were obligations imposed by workers’ compensation law. However, there is an exception for an injury caused by the employer’s intentional wrong. “[A]n employee seeking to prove an employer committed an intentional wrong must demonstrate either (1) that the employer had a subjective desire to injure, or (2) that ‘based on all the facts and circumstances of the case … the employer knew that an injury was substantially certain to result.’” Substantially certain is a high bar.

The Judge properly found that the exclusionary language in other cases was distinguishable from Hartford’s Employer’s Liability EEI exclusion because the policy was unambiguous because it stated did not provide insurance coverage for “any and all intentional wrongs within the exception allowed under the” Workers’ Compensation Act.

Affirmed.

PRE-EXISTING CONDITION

Smith v. H&H Transportation, Inc.

Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-3568-21; 2023 WL 8801267
Decided: 12/20/2023

Background:

Donald Smith (Smith) was hired by Employer as a truck driver. Smith was in an accident while driving a truck and sustained injuries to both legs, his left hip, and back. Before the accident, Smith had a history of back pain and received treatment. Smith was seen by an orthopedic surgeon who found that his thoracic and lumbar sprain symptoms were causally related to his injury but also found that his disc abnormalities were not related because they were a degenerative condition. The surgeon further found that Smith could return to work and Employer terminated temporary disability benefits.

Smith filed a Claim Petition and asserted low back pain, leg pain, and knee pain. Smith then was seen by a neurosurgeon who found Smith had several issues and performed five procedures on his back. Smith then filed a Motion for Temporary and Medical Benefits for medications and physical therapy for his back based on the neurosurgeon’s certification and records. Employer opposed the motion.

The Judge found that Smith’s medical records indicated longstanding degenerative issues instead of an acutely post traumatic injury. The Judge further found that work injury did not accelerate or exacerbate his existing issues and ultimately concluded that Smith’s need for treatment was not causally related. Smith appealed.

Holding:

On Appeal, Smith argued the Judge gave undue weight to the orthopedic surgeon’s opinion and that the Judge ignored facts on the record. Specifically, his previous physical examinations and lack of medical treatment for his back prior to the accident.

The Court found that the Judge’s decision was supported by the record. The Judge credited the orthopedic surgeon’s opinion that the injury was not caused or aggravated by the accident and found this opinion to be “credible, logical and consistent, both medically and factually.” His opinion was supported by a comparison of CT scans which showed no worsening of the disc herniation. In contrast, the Judge found the neurosurgeon’s opinion was not supported by the objective testing as it actually contradicted it. The Judge found that there was definite objective proof that there was no evidence of acute T7-T8 pathology related to the accident. The Judge’s findings were reached on sufficient credible evidence in the record, therefore the Court declined to substitute their own factfinding.

Affirmed.

ACCIDENTAL DISABILITY RETIREMENT BENEFITS

Hurley v. Board of Trustees, Police & Fireman’s Retirement System of New Jersey

Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2590-21; 2023 WL 8311306
Decided: 12/01/2023

Background:

Hurley was an officer for the Atlantic City Police Department and was in an accident on October 11, 2015 where his police vehicle was struck by another vehicle while on patrol. Following the accident, he was diagnosed with post-concussive disorder and a traumatic brain injury. He treated with workers’ compensation doctors and received physical therapy. The Board of Trustees of the Police and Fireman’s Retirement System (Board) denied Hurley’s request for accidental disability retirement benefits based on the accident. The Board found that Hurley was totally and permanently disabled, but that his “disability was ‘the result of a pre-existing disease alone or a pre-existing disease that [was] aggravated or accelerated by the work effort.’”

Hurley appealed to the Office of Administrative Law. The ALJ heard testimony from Hurley and his expert witnesses. Dr. Gollin, an expert witness in psychiatry, determined that “Hurley suffered from post-concussive syndrome in addition to depressive disorder as a result of the accident.” He further stated that Hurley is permanently disabled as a result of the accident and his prognosis for recovery is very poor. Dr. Pilchman, an expert in psychology, determined Hurley was disabled with an eighty-three percent possibility of being unable to function safely in his job. Dr. Pilchman additionally diagnosed him with post-concussive disorder and major depression as a result of the accident.

Dr. Filippone, the Board’s expert witness in psychology, found no convincing evidence that Hurley was suffering from post-concussive syndrome. He further opined that Hurley was malingering. Dr. Filippone determined that Hurley had a psychological disorder, but it was not caused by the accident.

The ALJ affirmed the Board’s decision denying Hurley’s request for benefits. The Board found Dr. Filippone’s testimony persuasive and concluded Hurley was permanently or totally disabled, but not as a result of the 2015 work-related accident.

Holding:

On Appeal, Hurley argues the ALJ should not have required him to satisfy the test in Patterson v. Board of Trustees, Police & Firemen’s Retirement System, 194 N.J. 29, 33 (2008). He further argued that his disability is a direct result of the 2015 accident.

The Court agreed with Hurley that Patterson is not the appropriate test because Hurley alleged a physical and mental disability. Hurley had to meet the requirements in Richardson v. Board of Trustees, Police & Firemen’s Retirement System, 192 N.J. 189, 192 (2007). This requires Hurley to prove that the mental issues he suffers from were a direct result of the October 2015 accident.

The Court concluded that the ALJ relied on Dr. Filippone’s testimony and reasonably found that “Hurley had a pre-existing condition and failed to satisfy the Richardson requirements for accidental disability retirement benefits.” As a fact-finder, the ALJ has discretion to accept or reject an expert’s testimony, given that there is evidence in the record to support the determination. There was substantial credible evidence in the record supporting the determination that Hurley’s disability was not the direct result of the October 2015 accident.

Affirmed.

Smith v. Board of Trustees, Police and Firemen’s Retirement System

Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2606-21; 2023 WL 8715198
Decided: 12/18/2023

Background:

Smith worked as a police officer with the Camden County Police Department. Smith injured herself while restraining a man when responding to a call. Following the incident, she treated with doctors, had procedures, and received physical therapy. A functional capacity examination (FCE) was performed, and Smith was advised by her doctor that she had reached maximal medical improvement and she was discharged from care. Based on the results of the FCE, the doctor did not believe that Smith could return to work as a police officer.

Smith applied for accidental disability retirement benefits. In her application, she claimed to be totally and permanently disabled as a result of the injuries suffered in her work accident. The Board denied the application and concluded Smith did not sustain a permanent and total injury. The Board further concluded that any injury she suffered was not a direct result of the work incident.

Smith appealed and the case was heard by the Office of Administrative Law. An administrative law judge (ALJ) determined the Board’s decision was appropriate as Smith failed to present credible evidence that she was totally and permanently disabled and failed to demonstrate that her injuries were the direct result of the work incident. Smith then filed exceptions with the Board, who affirmed the denial. Next, Smith appealed that decision.

Holding:

On Appeal, Smith argued that she is totally and permanently disabled from the performance of her job as a police officer. She additionally argued that her disability is a direct result of the work incident and that she is entitled to accident disability retirement benefits.

To qualify for accidental disability retirement benefits under the statute, the member must prove permanent and total disability. The ALJ had to determine, based on credible evidence in the record, which expert’s opinion was more credible. The Court determined that there was more than enough evidence in the record to conclude that Smith did not meet her burden to prove that she suffered a total and permanent disability. Even if she had proved she suffered a total and permanent disability, she was still required to prove additional prongs to obtain accidental disability retirement benefits. These prongs include a direct causal connection between the incident and her disability. The ALJ correctly determined that Smith’s medical expert failed to present credible evidence that the shoulder injury was a direct result of the work incident. The ALJ relied on the Board’s medical expert who determined there was a lack of evidence that “she suffered a total and permanent injury as a direct result of a powerful blow or similar forceful trauma to her shoulder during” the work incident. The Court was satisfied with the Board’s adoption of the ALJ’s decision as it “was based on substantial credible evidence in the record and was not arbitrary, capricious, or unreasonable.”

Affirmed.

NEW JERSEY LEGISLATIVE UPDATES

Senate Bill 3309

This bill sets the maximum fees for evaluating physicians for petitioners for the written reports at $1,000. This is an increase of $400 from the previous maximum of $600. In addition, this bill also allows a psychologist, nurse practitioner, or licensed clinical social worker who provides psychological treatment to be paid a fee for testimony or a report.

Last Action: This bill was approved on July 20, 2023 and went into effect immediately.

Proposed Senate Bill 4059

This bill establishes the 21^st Century Injured Workers’ Access to Justice Fund. This bill revises the cap on contingency fees to a prevailing party in workers’ compensation matters from 20 percent to 25 percent. In addition, it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind.

Last Action: Reported out of Assembly Committee with Amendments, 2^nd Reading, November 30, 2023

CASE SUMMARIES 11/1/2023-11/30/2023

Dec 4, 2023