March 2022 PA and NJ Case Law Update
PENNSYLVANIA CASELAW UPDATE
February 28, 2022 to March 28, 2022
DECISIONS OF THE PENNSYLVANIA COMMONWEALTH COURT
Ambler Borough v. WCAB (Giuseppe Gullo)
Decided: 3/28/2022 Unpublished Memorandum Opinion.
When litigating a Termination Petition and evidence is discovered which may challenge the competency of claimant’s medical expert and the findings upon which a WCJ relied, is denying the employer the opportunity to submit that evidence reversible error.
Taking into consideration the facts, the Commonwealth Court held that the newly discovered evidence and whether or not it was admissible went to the weight of the evidence and credibility and thus questions of law were not raised and the employer’s appeal was denied.
The claimant operated a street cleaner for the employer. He sustained an injury to his head and neck which was established via a WCJ’s decision granting a Claim Petition. The employer subsequently filed a Termination Petition with regard to certain injuries sustained by the claimant. During that litigation claimant’s medical expert provided a broader description of the work injury. Further, while the Termination Petition was pending employer was able to obtain an updated independent medical exam (IME). For that IME employer was able to obtain prework injury x-rays which showed significant degenerative changes prior to the establishment of the work injury. When the Termination Petition was denied, the employer argued claimant’s medical expert was not competent because he rejected the exact definition set forth in the WCJ’s decision and also the record should have been reopened to address the significant preexisting conditions noted on the prework injury x-ray. With regard to the incompetence of claimant’s medical expert, the Court reported that the medical expert simply explained the basis upon which his opinions were based and did not reject the WCJ’s work definition, thus as a matter of law, that medical expert opinion was to be assessed on the grounds of credibility, not on competency. With regard to the pre-existing x-rays, the Court noted that the employer represented, when the IME was requested, that none of the experts considered for the second IME would be used for the pending Termination Petition. The Court explained that thus, the WCJ was entirely justified in not allowing the evidence to come in and the denial of the submission of that evidence did not make the WCJ’s decision not reasoned. Therefore, the Termination Petition was properly denied based on the Judges weighting of the credibility of the evidence presented.
Esxix Holdings, LLC v. WCAB (M. Dengel)
Decided: 3/25/2022 Unpublished Memorandum Opinion
When a Claim Petition is resolved via a WCJ’s acceptance of a Stipulation of the parties which directs payment, and payment pursuant to that decision is delayed while awaiting the return of an LIBC 760 (Verification of Employment/other Income), is the employer’s delay while waiting for that form a violation of the Act?
The Court held that when an employer is ordered to pay Workers’ Compensation benefits but refuses to do so the employer has violated the Act and may be subject to a penalty. Since the WCJ’s Decision ordered payment, the employer was not justified in waiting the return of the LIBC 760 form.
The parties were litigating Claim and Penalty Petitions. By Stipulation, the parties agreed to the grant of the Claim Petition, the payment of wage loss benefits, medical benefits, and a 20% counsel fee on all compensation due. After receiving the Judge’s Decision, but before making payment, the adjuster sent out the LIBC 760 form seeking to verify that there were no other income or wages the claimant received. Eventually, claimant’s counsel was made aware that the delay in paying the claimant was due to the failure to return the signed form. The form was signed and returned to the employer immediately and claimant filed the Penalty Petition. The WCJ, the Appeal Board, and the Commonwealth Court concluded the employers reliance on the failure to receive the LIBC 760 form was not justified. Especially in light of the fact, according to the Appeal Board and Commonwealth Court, that there was a Decision ordering payment.
John Bark v. WCAB (Sooner Steel, LLC)
Decided: 3/21/2022 Published Opinion
In an instance where a laborer had neither written nor oral contract with an employer and was injured in a motor vehicle accident while riding in a truck owned by the employer and driven by one of the employer’s employees, did injuries occur during the course and scope of employment?
The phrase course of employment is a factual assessment in which it must be determined whether an employee is stationary or traveling. If an individual is a traveling employee the course and scope of the employment is broader and is determined by a case by case basis based on whether the employee’s job duties include travel, whether the employee works on his employer’s premises, or whether he had no fixed place of work. If an individual is not a traveling employee, they are not in the course and scope of their employment at the time if the injury occurs while going to or coming from work.
The claimant was a Pennsylvania resident who worked frequently for the employer when they needed extra help. Claimant did not have an oral written contract with the employer. On the date in question, the employer needed extra help and had one of its employees take a company truck, pick the claimant up from work, and bring him to a job location in New Jersey. Claimant was reporting at that location to work for a few days. Employer also instructed the coworker to drive the claimant home at the end of the shift. While traveling home, both workers were involved in a significant accident.
In reaching its conclusion, the Court noted that the fact that claimant did not have a written contract of employment or that the injury occurred while a passenger in one of his employer’s vehicles were not dispositive. Instead, the Court noted that these factors along with the fact that there was a particular rate of pay disbursed given the distance of the New Jersey job site from the home office, was akin to a travel stipend and placed the claimant within the employment contract exception to the coming and going rule. As a result, the Court reversed the WCJ and Appeal Board conclusion that claimant was not in the course and scope of employment and remanded for further proceedings.
Thomas Farrier v. WCAB (Lee’s Painting and Roof Coating)
Decided: 3/22/2022 Unpublished Memorandum Opinion
In an instance where the parties are litigating a second Termination Petition and the WCJ found certain conditions appear to permanently alter a body part, could employer successfully obtain a Termination of benefits?
Yes, the evidence presented established that the claimant’s status had changed since the prior Termination Petition and the permanent altering of the body part does not necessarily mean that an individual cannot fully recover.
Claimant was employed as a painter and fell from a ladder injuring his knee and other body parts. The parties litigated a Termination Petition in which claimant was found to have not fully recovered. When discussing the injuries, the Judge remarked on one of the findings that because of three surgeries to the knee, there was a permanent alteration to the internal structures of the knee. The claimant had not recovered.
For the subsequent Termination Petition, the employer’s medical expert pointed out that the claimant had degenerative arthritis in his knee which was part of a natural progression and not a progression due to the work incident. Employer’s medical expert found that the claimant fully recovered from his injuries. The WCJ granted the Termination Petition.
On Appeal, claimant argued that the employer did not adequately establish a change in the claimant’s physical status which justified a termination of benefits. Said conclusion was rejected by the Commonwealth Court. They analyzed the facts presented and indicated that there was sufficient evidence of the change in claimant’s status since the prior Termination Petition even where magic words may not necessarily been employed to establish that change.
Ayona Lee v WCAB (Fresh Grocer Holdings, LLC)
Decided: 3/4/2022 Order that the December 22, 2021 Decision to be published.
Under the Medical Fee Review Regulations, a “provider” is entitled to file a Fee Review. The issue presented was who makes the judicial determination that an entity is a provider, a Fee Review Hearing Officer (FRHO) or a Workers’ Compensation Judge (WCJ)?
The Court held a FRHO must decide if an entity is a provider entitled to file and pursue a fee review.
On March 4, 2022 the Commonwealth Court converted this decision from unreported to published, meaning the decision becomes binding precedent.
Under the Act, a provider may challenge the amount of a bill paid and/or the timeliness of payment through the fee review process. Here, the claimant sustained significant burns at work and was transported to the level 1 Trauma center at Penn Presbyterian and then the level 2 Trauma and Burn center at Crozer Chester Medical Center.
The employer initially accepted liability by issuing a Notice of Temporary Compensation Payable (NTCP). Within the allotted timeframe, after issuing the NTCP, the employer issued a Notice Stopping Temporary Compensation and a Notice of Denial.
The Provider Recovery Network (PRN) filed a fee review concerning the amount and timeliness of payments for the bills generated by the Trauma centers. The Court’s decision did not indicate whether PRN was contracted by the trauma centers to pursue their debts, or purchased the debt and pursued payment for itself. The FRHO found he lacked jurisdiction to determine if PRN was a “provider” entitled to file the fee review. Thus, as a result the FRHO did not issue an order regarding the payments which needed to be made for the Trauma center treatment. PRN did not appeal this decision by the FRHO.
Claimant subsequently filed a Penalty Petition alleging the employer violated the Act by failing to properly pay her medical bills. In defense of the Penalty, the employer argued the issues raised must be addressed through the fee review process and thus, the WCJ lacked jurisdiction. The employer also argued the WCJ did not have jurisdiction to decide whether PRN was a “provider” to whom payment was due, and the correct amount of payment. In fact, the employer argued, the Commonwealth Court’s Armour Pharmacy decision held the FRHO is responsible for determining whether or not PRN was a provider. The WCJ agreed with the employer and dismissed the Penalty Petition for lack of Jurisdiction. The Appeal Board Affirmed the WCJ.
The Commonwealth Court affirmed the Appeal Board and dismissed the claimant’s appeal. The holding in Amour Pharmacy made clear that FRHOs are responsible for deciding if an entity is a provider entitled to pursue a fee review. The Court explained that since claimant was not a party to the prior fee review, she was not deprived of any rights and the employer did not violate the Act.
Hughes v WCAB (Wawa, Inc.)
Decided: 3/4/2022 Order that the December 13, 2021 decision will be published.
Is a Utilization Review (UR) valid when the reviewing physician was not provided with the names and records from all of claimant’s treating physicians, and the reviewer may not have practiced in the exact same specialty of the physician under review?
The UR reviewer need not be provided with names and records of all the claimant’s treating physicians in order to perform a UR. Further, the label for a medical specialty does not by itself determine if a UR reviewer practices in the same field as the provider under review. The WCJ, based on weighing of the evidence, will determine if the UR reviewer and the provider under review are of the same specialty.
On February 28, 2022, the Commonwealth Court converted this decision from unreported to published, meaning the decision becomes binding precedent.
The claimant, a delivery driver, sustained a work-related low back injury which was accepted via a Notice of Compensation Payable (NCP). The parties resolved the wage loss portion of claim through a Compromise and Release Agreement (C&R). The employer’s obligation to pay medical benefits continued. The C&R significantly expanded the work-injury description from that set forth in the NCP.
Several years after the C&R was approved, the employer filed UR requests of treatments provided by two of claimant’s treating physicians. Both UR requests sought a review of the frequency of office visits and prescription medications. Both physicians were prescribing OxyContin. Both UR determinations found the care at issue was not reasonable or necessary.
Claimant filed Petitions to Review both UR Determinations.
The WCJ found the OxyContin was neither reasonable nor necessary. The UR reviewers were found to be credible and convincing. Claimant appealed. The Appeal Board Affirmed the WCJ.
In his Appeal to the Commonwealth Court, claimant argued the URs were defective because the UR reviewers were not provided with claimant’s medical records from providers other than those under review. The Court rejected claimant’s argument, finding a UR reviewer must reach a conclusion based on the records provided, and the UR does not become flawed by failing to possess or know the identity of all of claimant’s treating providers.
Claimant also argued one of the UR reviewers was not of the same specialty or expertise as the physicians whose records he reviewed. The Court rejected this argument concluding the UR reviewer and treating physician provided similar treatments in their practices and thus whether they were in the same medical specialty, was an issue of credibility, not a disqualifying factor.
Geisinger Wyoming Valley Med. Ctr. v WCAB (Drozea)
Decided: 2/28/2022; Unreported Memorandum Opinion
When a medical expert testified to a causal connection between a work incident and injury, but the expert was not aware of prior trauma and preexisting symptoms when reaching that opinion, but the claimant testified to the immediate onset of symptoms following the work incident, may a WCJ find the recent work injury was caused by that incident.
Given the claimant’s testimony and the medical testimony, there was sufficient evidence of causation in the record to conclude the WCJ’s decision granting the Claim petition, was supported by substantial competent evidence.
Claimant was employed as an X-Ray technician. Claimant was injured when a falling patient grabbed claimant’s arm to break their fall. Claimant sustained neck/shoulder injuries which were initially acknowledged through a Notice of Temporary Compensation Payable (NTCP). Claimant continued to work. Within the appropriate timeframe after issuing the NTCP, employer issued timely Notice Stopping Compensation and Notice of Denial. Claimant’s symptoms continued for several months, and his physicians were considering surgery. Claimant then filed a Claim Petition seeking ongoing acknowledgment of the injury.
The parties proceeded by reports and there were medical opinions in which some of the claimant’s past medical history was not considered, and other medical opinions which were not clear as to what specifically, if anything, was caused by the work incident. The claimant’s testimony, however, was clear as to relationship between the work incident and onset of symptoms. The employer argued before the WCJ, and on appeal, that the medical opinions were not competent because they did not have an accurate history or were ambiguous.
The Court relied on established precedent that a claimant’s testimony about the immediate onset of symptoms may, depending on the evidence presented, establish a causal connection between incident and injury. Here, the Court explained, the WCJ was responsible for weighing the evidence and there was substantial competent evidence to conclude there was a causal connection between the claimant’s symptoms and the work incident.
NEW JERSEY CASELAW UPDATE
February 28, 2022 to March 28, 2022
DECISIONS OF SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
Streeper v. State of New Jersey
Decided: 3/08/2022, No. A-1625-19; 2022 WL 678395
Appellant, Gary Streeper, appeals from the November 28, 2019 order of a judge of compensation dismissing, as untimely filed, his application for review or modification of a compensation award.
Streeper injured his right leg and knee on April 15, 2003 while he was employed by the State. He filed a claim for workers’ compensation benefits, they were awarded, and he received authorized medical treatment. On September 8, 2008, a judge approved a settlement for the 2003 incident. Streeper subsequently sought additional medical treatment and compensation for his injuries, including an authorized knee replacement surgery, follow-up treatment, and additional compensation. He received his last temporary disability compensation on April 8, 2011 and received his last payment for medical treatment on February 1, 2012. On July 24, 2019, Streeper filed an application for review or modification of the award relating to the 2003 incident, alleging that his injuries had worsened after the settlement. The State filed an answer asserting that the workers’ compensation court lacked jurisdiction to review the application because it was filed beyond the 2-year statute of limitations. The court considered this to be a motion to dismiss.
Streeper acknowledged that the application to review or modify was beyond the statutory limitations period, but argued the judge should exercise her authority to relax the 2 year period in the interest of justice and so effectuate the remedial purpose of the WCA, reopen the judgement related to the 2003 claim on the basis of a mistake, or amend a then-pending, timely filed 2013 application for review or modification of an award he received for a claim relating to a 2000 injury to include a request for review or modification of the award relating to the 2003 incident. Streeper argued that when he sought additional treatment for his 2003 incident, he also sought additional treatment relating to his 2000 incident, and beginning in September 2010, at the direction of the Division of Workers’ Compensation, the additional medical treatment for both dates of injury were administered under a single petition number.
The judge of compensation issued an oral opinion granting the State’s motion. She concluded that she was without authority to depart from the 2-year statute of limitations, and dismissed Streeper’s July 24, 2019 application for lack of jurisdiction. In so holding, she concluded she lacked the authority to amend the November 25, 2013 application to include both claims. The instant appeal followed.
The court, citing voluminous case law, states that the judge of compensation erred when she concluded that she lacked the authority to consider whether Streeper’s counsel’s purported mistake with respect to the administrative consolidation of the two claims (the 2000 and 2003 claims) warrants either reopening the September 2008 judgment on the 2003 claim, or amending the November 2013 application for review or modification to include both the 2000 and 2003 claims.
Order vacated and remanded.
Russo v. Board of Trustees, Public Employees’ Retirement System
Decided: 3/04/2022, No. A-0591-20; 2022 WL 628461
Appellant, Michael Russo, alleged that he sustained a neck injury in November 2010 when he fell down stairs while working as an operations undersheriff in the Hunterdon County Sheriff’s Office. He applied for accidental disability retirement benefits, which was denied by the Board of Trustees of the Public Employees’ Retirement System (Board). After appeal and transfer to the Office of Administrative Law for a hearing, the Administrative Law Judge (ALJ) found that appellant failed to demonstrate that he was totally and permanently disabled and incapable of performing the duties of an operations undersheriff.
The issues presented by appellant for determination by the ALJ were: whether he was totally and permanently disabled from the performance of his duties as undersheriff, and whether his alleged disability directly resulted from his November 2010 incident. Dr. Nehmer testified on behalf of the appellant, who relied on a 2013 cervical MRI for his diagnoses; and related those diagnoses to the November 2010 incident. He admitted he did not review a cervical MRI taken two days after the incident. Dr. Rosa testified on behalf of the Board, and thought that the MRI positive findings were a result of age-appropriate degeneration. The ALJ found Dr. Nehmer’s testimony to be not credible and affirmed the Board’s denial of accidental disability benefits. Appellant contended on appeal that the Board’s decision was arbitrary, capricious, and not supported by the evidence.
The court, citing case law, stated that “[o]ur Supreme Court” has held that to receive accidental disability benefits, a claimant must prove: (1) that he is permanently and totally disabled; (2) as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member (not as a result of pre-existing disease that is aggravated or accelerated by the work); (3) that the traumatic event occurred during and as a result of the member’s regular or assigned duties; (4) that the disability was not the result of the member’s willful negligence; and (5) that the member is mentally or physically incapacitated from performing his usual or any other duty.
The ALJ found that appellant failed to meet his burden of causation, as his medical expert relied on an MRI from 3 years after the incident, did not review the MRI taken 2 days after the incident, and that the 2013 MRI showed “age-appropriate” arthritic changes. The court stated it was satisfied that the ALJ’s decision that appellant did not meet his burden as to causality and the Board’s subsequent adoption of the opinion were based on the substantial, credible evidence in the record.