Dec 2, 2024
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
11/1/2024 – 11/30/2024
OCCUPATIONAL DISEASE – FIREFIGHTER PRESUMPTION
Borough Of Hollidaysburg v. Paul Detwiler (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: November 19, 2024
Issues:
Whether the Claimant provided timely notice of his occupational disease and filed a timely Claim Petition? Whether the Claimant failed to meet his burden to show a causal link between his cancer and a Group 1 carcinogen?
Background:
On December 27, 2019, Claimant filed a Claim Petition seeking benefits for occupational disease pursuant to Section 108(r) of the Workers’ Compensation Act (Act). The Claim Petition alleged that Claimant was diagnosed with chronic myeloid leukemia (CML) caused by his exposure to carcinogens categorized by the International Agency for Research on Cancer (IARC) as Group 1 carcinogens while working as a volunteer firefighter.
Holding:
The WCJ did not err in finding that Claimant acted with reasonable diligence or that he provided the Borough with timely notice of his occupational disease. To the extent the Borough argues that Claimant failed to act when he first became aware of Act 46’s existence, this Court has previously rejected such arguments. The Borough’s argument amounts to nothing more than a challenge to the WCJ’s credibility determinations. The WCJ credited Claimant’s testimony that although he knew of his CML diagnosis in 2014, he did not relate it to firefighting at that time. The WCJ further found Claimant credible when he testified that within a month or so of attending the Act 46 training, Claimant contacted counsel and received paperwork to make his claim. Thereafter, Claimant provided notice to Employer, and signed a fee agreement with counsel. Claimant acted with reasonable diligence when he notified the Borough of his claim shortly after attending the Act 46 training and making contact with his attorney. As for timeliness of the claim, the Claimant filed his Claim Petition on December 27, 2019—well within the 300-week period required to receive the presumptions. As for causation, the evidence credited by the WCJ, shows Claimant carried his burden to establish direct exposure. The witnesses testified that Claimant was present at calls where fire and smoke were present during his service with Phoenix and that he fought “brush fires, dumpster fires, house fires, just every type of fire. Further, Claimant’s expert’s opinion substantially supported a connection between exposure to fire, smoke and exposure to a Group 1 carcinogen. Section 301(f) does not require claimants to prove that workplace exposure actually caused their cancer or that their direct exposure was to some particular Group 1 carcinogen. The Supreme Court reversed this Court’s “add[ition of] a workplace-exposure requirement that the General Assembly chose not to impose upon claimants.” The WCJ properly concluded that Claimant met his burden under Section 108(r) of the Act to establish a causal link between his CML and a Group 1 carcinogen and satisfied the elements necessary to invoke the presumption of compensability in Section 301(f) of the Act. A reversal would necessarily require a lack of deference to factual findings by the WCJ. Accordingly, the order of the Board was affirmed.
Affirmed.
DISSENTING OPINION BY SENIOR JUDGE LEAVITT
The dissent would reverse because Claimant’s evidence about his work as a volunteer firefighter did not prove four years of continuous firefighting duties that exposed him to benzene at levels sufficient to cause CML, he was not entitled to use the presumption provided in Section 301(f) of the Act.
BURDEN OF PROOF – VARIOUS PETITIONS
JUDICIAL DISCRETION
Tina Butterfield v. Hallmark Marketing Corp. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: November 20, 2024
Issues:
Whether the WCJ’s decision as to the Termination, Reinstatement, and Penalty Petitions, was supported by substantial competent evidence?
Background:
Claimant was injured during the course and scope of her employment as a machine operator with Employer. Employer filed a Termination Petition alleging that Claimant had fully recovered as of March 10, 2022. Thereafter, Claimant filed a Reinstatement Petition seeking to reinstate her indemnity benefits as of September 1, 2022, based upon the fact that she was terminated due to her inability to perform her work duties because of the work accident. On October 3, 2022, Claimant filed a Penalty Petition alleging that Employer refused to pay for certain medical treatment allegedly related to her work injury. The WCJ granted the Termination Petition and denied the Reinstatement and Penalty Petitions. The Board affirmed.
Holding:
The Claimant’s attack on the WCJ’s findings was an attack on the credibility findings. 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 critical inquiry is whether there is evidence to support the findings actually made. The Claimant’s argument that the WCJ erred in denying her Reinstatement Petition was without merit. Claimant filed a Reinstatement Petition seeking to reinstate her indemnity benefits based upon the fact that she was terminated due to her inability to perform her work duties as a result of the work accident. Claimant returned to full-duty work for Employer without restrictions and was subsequently terminated for quality control reasons that were totally unrelated to the work injury. Thus, any wage loss after that date was not related to the work injury. As for the penalty, Claimant bore the burden of proving a violation of the Act or its rules or regulations that appears on the face of the record and she failed to introduce credible evidence supporting that allegation. The WCJ accepted that the diagnosis of a work-related radiculopathy and disc conditions were degenerative in nature and not work-related. Thus, Claimant failed to prove that Employer failed to pay any bills causally related to her work injury.
Affirmed.
MEDICARE LIENS
THE CLAIMANT STILL HAS TO PROVE A PENALTY
Dura-Bond Coating, Inc, v. Ryan Marshall, et al. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: November 18, 2024
Issue:
Whether the Board erred by concluding that Employers are obligated to reimburse DHS’s Lien despite that Claimant’s claim is compensable and the medical service providers never submitted the required billing forms and medical reports to Employers as required for payment under the Act and the MCCR?
Background:
The WCJ granted Claimant’s Claim Petition for WC Benefits, deemed Dura-Bond and PI&I Claimant’s statutory employers, and ordered Dura-Bond to pay the full amount of WC benefits with entitlement to indemnification from PI&I. Dura-Bond paid DHS’s lien for bills DHS had paid on Claimant’s behalf to that point. In a review petition, the Employers alleged that Claimant failed to ensure that providers billed his treatment expenses to Employers pursuant to Section 306(f.1) of the Act. The WCJ granted the Review Petition, having found that the providers and DHS were or should have been aware that Employers were liable for Claimant’s medical bills, but nevertheless bypassed Employers and continued to bill DHS. The WCJ acknowledged Employers’ statutorily imposed obligation to repay the DHS Lien pursuant to Section 1409 of the FACA, but the WCJ concluded that Employers are not obligated to reimburse the Lien unless and until the bills in question are submitted to them for review, payment, denial, and/or utilization review in accordance with the Act. The Board reversed, concluding that Employers were responsible for paying the DHS Lien.
Holding:
Without supporting authority, the Board essentially interpreted that the FACA supersedes the Act and declared that since DHS already paid Claimant’s providers, Employers cannot now challenge causality or reasonableness or necessity of the medical services for which DHS paid. Under Section 306(f.1) of the Act and the related MCCR, an employer’s/insurer’s legal liability to pay for a claimant’s medical treatments is triggered only when the employer/insurer receives the proper billing forms and related medical records. Reading the FACA and the Act together, an employer/insurer is responsible for reimbursing a DHS lien, but only when it receives the proper billing forms and related medical reports. Traditional canons of statutory interpretation and sound public policy as expressed in both the FACA and the Act support interpreting the Act and the FACA in that manner. Employers’ obligation to pay for Claimant’s work injury-related medical treatments and, thus, those costs in the DHS Lien, is not triggered until Employers receive proper billing reports and medical records from the treating providers to confirm causality and the reasonableness and necessity for Claimant’s underlying treatments. DHS has paid Claimant’s providers for all his medical treatments, notwithstanding whether they were for his work injury. Having been paid, the providers now have no incentive to submit proper billing and medical reports to Employers. Moreover, DHS is not a party to, and has not participated in, this litigation.
REVERSED, and the matter is REMANDED.
IMPAIRMENT RATING EVALUATIONS
Kenneth Elliott v. City of Pittsburgh (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: November 14, 2024
Issue:
Whether Act 111 and this Court’s cases upholding its credit provisions have sub silentio, thus impermissibly, overruled Protz II?
Background:
Claimant sustained a disabling work-related injury on August 25, 2003. In December 2012, he underwent his first IRE, which returned an impairment rating of nine percent, after which his status was modified in March 2014 to TPD as of the December 2012 IRE. He did not appeal that determination, which limited him to 500 weeks of TPD benefits. After Protz II, in April 2021, before Claimant’s 500 weeks of TPD benefits elapsed, he filed a reinstatement petition seeking to restore his TTD status as of the December 2012 IRE date pursuant to Protz II. The WCJ granted the petition, but because Claimant had not previously appealed the constitutionality of the initial IRE, the WCJ restored Claimant’s TTD status only as of his April 2021 petition date. Claimant appealed to the Board, which affirmed, and then to the Commonwealth Court, which also affirmed. On September 8, 2021, Claimant underwent a second IRE pursuant to Act 111. The IRE returned an impairment rating of eight percent; subsequently, the WCJ granted Employer’s modification petition, which returned Claimant from TTD status to TPD status as of the September 2021 IRE. Claimant appealed to the Board, challenging the constitutionality of Act 111’s credit provisions; the Board affirmed, as did the Commonwealth Court. Claimant filed the instant reinstatement petition on March 21, 2022, again challenging the constitutionality of Act 111’s credit provisions on different grounds.
Holding:
The void ab initio doctrine is no longer the automatic or recognized approach for application of a judicial decision finding a statute invalid and that only claimants whose IREs were being litigated or appealed on the basis of non-delegation at the time Protz II was issued in June 2017 were eligible for TTD restoration as of their pre-Protz IRE dates. Further, claimants do retain “a certain right to benefits until such time as [they are] found to be ineligible for them,” although they “do not acquire a vested right in total disability status at any given time because that status has always been subject to potential litigation by employers.” Therefore, Claimant’s arguments in the appeal were deemed meritless.
Affirmed.
Deborah Reber v. R.E. Shenker/Little Lexington Farms (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 30, 2024
Issues:
Whether the WCJ made improper findings regarding the competency of Dr. Jurenovich, the IRE evaluator when that opinion was challenged as being inconsistent with the AMA Guides, [Sixth] Edition, second printing?
Background:
Claimant sustained a work-related head injury while employed as a horse trainer for Employer. In 2021, an IRE was performed by Michael Jurenovich, D.O., at the request of Employer. Dr. Jurenovich performed the IRE pursuant to Act 111, which yielded a whole-person impairment rating of 32%. On May 18, 2021, Employer filed a Modification Petition, seeking to modify Claimant’s benefits from temporary to partial disability based on the IRE. Although Dr. Jurenovich’s practice does not include direct treatment of traumatic brain injuries, he has experience in treating patients with that injury since traumatic brain injuries often accompany traumatic orthopedic injuries, which he treats as part of his practice. In advance of his examination of Claimant, Dr. Jurenovich was provided with copies of Claimant’s voluminous medical records, which he reviewed in preparation for the exam. During the IRE, Claimant reported difficulties with activities of daily living including balance issues, memory loss, depression, anxiety, and irritability, as well as taking several anti-psychotic medications. The WCJ granted the Modification Petition. The Board affirmed.
Holding:
Any failure of a medical expert to apply pertinent guidelines affects the credibility of such a witness rather than his competency. The WCJ’s decision to credit Dr. Jurenovich’s opinions were supported by substantial evidence. The WCJ identified the basis for his determination that the testimony of Dr. Jurenovich was credible. The WCJ noted that Dr. Jurenovich performed an examination, reviewed voluminous records, and documented the basis for his opinions and reports. He further noted that Dr. Jurenovich came across as both candid and confident. Although the WCJ acknowledged that Dr. Jurenovich made some concessions on cross-examination, he maintained his position as expressed on direct examination. The WCJ found that overall, Dr. Jurenovich’s testimony as a whole was credible and convincing and established a 32% impairment rating as of May 10, 2021, sustaining Employer’s burden of proof. The WCJ, as the ultimate factfinder in workers’ compensation cases, has exclusive province over questions of credibility and evidentiary weight. The WCJ’s decision to credit Dr. Jurenovich over Claimant’s expert was supported by substantial evidence, thus Claimant’s argument is without merit. She also offered no evidence to contradict Employer’s expert’s testimony that he did not find objective signs of a brain injury on the day of the IRE. The WCJ was the final arbiter of fact in this case, and he found the testimony of Dr. Jurenovich to be credible and persuasive and that it established a valid impairment rating of 32% under the AMA Guides. Claimant failed to present her own expert testimony from which the WCJ could have determined that Dr. Jurenovich’s opinions were speculative and arbitrary. That failure does not render the AMA Guides unconstitutional.
Affirmed.
SPECIFIC LOSS BENEFITS
CLAIMANT DIED DURING THE TTD CLAIM LITIGATION
Elmer Riehl v. Beiler Brothers (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: November 18, 2024
Issue:
Whether Section 410 of the Act should apply to allow a widow to receive Claimant’s specific loss benefits regardless of the timing and the cause of his death?
Background:
Claimant sustained a disabling work-related injury in October 2011. The injury was ultimately described as incomplete tetraplegia with depression and anxiety resulting from the October 2011 incident. In June 2020, Claimant filed a petition to convert his TTD to specific loss benefits, which are available when a claimant permanently loses the use of a body part. In November 2020, the WCJ dismissed the petition without prejudice to be refiled in the Board’s original jurisdiction, which Claimant did later that month. In August 2021, the Board referred the matter to the WCJ to produce findings of fact; the matter would then return to the Board, which retained jurisdiction. During the litigation, Claimant passed away in November 2021 from sepsis resulting from bedsores that developed from his work-related tetraplegia. Both doctors opined that Claimant’s death was due to his work-related injuries. Adopting the WCJ’s findings of fact, the Board stated that if Claimant had not died while his petition was being litigated, it would “likely” have awarded conversion of his TTD to 1,640 weeks of specific loss benefits. However, the Board concluded that Claimant’s petition became moot when he passed away because his death was due to his work injuries and Section 306(g) of the Act bars specific loss benefits for a surviving dependent in that circumstance.
Holding:
Claimant’s death from his work injuries occurred more than 300 weeks after his initial injuries occurred. Although Claimant’s widow would otherwise be eligible for fatal claim benefits based on Claimant’s death from his work injuries, she is, as noted, presumably barred from receiving them because Claimant’s death occurred more than 300 weeks after the incident that caused his injuries. The straightforward operation of Sections 306(g), 307, and 301(c)(1) would leave Claimant’s widow, a surviving dependent, with no remedy at all. Although the Claimant did not present a Section 410 claim to the Board, Section 410 is mandatory and not waivable. Section 410 applies only in very narrow circumstances where a claimant has a claim for compensation pending at the time of death that ultimately prevails. If Section 410’s elements are met, “the amount of compensation due” relates back to the time of the filing of the claim or petition and does not take the ultimate cause of death into consideration. When Section 410 applies because claim litigation is pending when the claimant dies, Sections 306(g) and Section 307 still apply and work with Section 410 to ensure the heritability of some form of benefits that the claimant sought but had not yet received prior to death. However, there must be an eligible surviving dependent to receive the benefits because to award them to an estate would conflict with Sections 306(g)(7) and 307(7). The Board’s order denying Claimant’s petition to convert claimant’s benefits from TTD to specific loss as moot was vacated. The matter was remanded to the Board.
Vacated and Remanded.
PETITION FOR ALLOWANCE OF APPEAL FROM THE ORDER OF THE COMMONWEALTH COURT – GRANTED
George B. Thomas v. Sysco Foods (WCAB)
Supreme Court of Pennsylvania.
November 5, 2024
The Petition for Allowance of Appeal was granted, limited to the issue set forth below. Allocatur was denied as to all remaining issues. The issue, as stated by petitioner, is:
Where the injured worker was a long-term member of a union with significant seniority subject to a collective bargaining agreement, should this Court limit Rosenberg v. Workers’ Compensation Appeal Board (Pike County), 942 A.2d 245 (Pa. Cmwlth. 2008), revising the lower court’s policy of shifting a burden that statutorily resides with the employer to prove all of the elements of a modification petition onto the disadvantaged injured worker to establish the existence of job vacancies within the employer’s workforce he or she would have to discover and prove vocationally qualified, contrary to the mandatory language of Section 306(b)(2) of the Workers’ Compensation Act, 77 P.S. 512(b)?
George B. Thomas v. Sysco Foods (WCAB)
Supreme Court of Pennsylvania.
November 5, 2024
Should an employer, which contacts directly and requests and conducts a mental health examination of an injured worker ex parte and fails to notify the worker’s counsel of record of the requested examination, be barred from utilizing the examination to alter the worker’s benefits given:
a. Section 314 of the Workers’ Compensation Act prohibits counsel from attending a medical examination of his client despite pending ongoing adversarial litigation in violation [of] his client’s constitutional right to counsel, and
b. The Court and Appeal Board’s condoning of these ex parte violations without any consequence, severely undermines the remedial and humanitarian purposes of the Act, and may, in effect, encourage it?
PENNSYLVANIA LEGISLATIVE REVIEW
As of November 2024, the Senate L&I Committee is still reviewing this House Bill and it has not sent it back to the Senate for review, alteration, or consideration.
Regular Session 2023-2024
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
11/01/2024 – 11/30/2024
WORKERS’ COMPENSATION COVERAGE
Amato v. Twp. Of Ocean Sch. Dist.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2542-23, A-2543-23; 2024 WL 4875157
Decided: 11/25/2024
Background:
Decedent was a teacher who died from COVID-19 after she returned to work when her school reopened. Petitioner filed a dependency claim alleging decedent suffered an occupational disease and died as a result of the exposure. Petitioner moved for an order that decedent was an essential employee under N.J.S.A. 34:15-31.11 and .12. Respondent moved to recuse the assigned Judge as she sponsored the bill. The Judge was a member of the New Jersey Assembly and was one of eight sponsors of the bill. “The bill amended the workers’ compensation statute to create a rebuttable presumption that an essential employee’s contraction of COVID-19 during the state of emergency was work-related.” The trial judge denied the recusal motion.
Holding:
Court held that a compensation judge who formerly sponsored a bill enacted into law is not per se disqualified from presiding over cases implicating or interpreting that law. The judge’s personal knowledge of legislative history does not necessarily render the judge biased or unable to make a fair judgement in the matter. Court found that the judge in this case did not abuse her discretion in denying the recusal as her knowledge in this case was judicial knowledge which many judges have. Court was not persuaded by Respondent’s argument that the judge could be called as a witness. The trial judge was correct in finding that decedent was an essential employee. Court also noted that the presumption under N.J.S.A. 34:15-31.12 is that the contraction of COVID-19 by an essential employee is rebuttable.
Affirmed.
NEW JERSEY LEGISLATIVE UPDATE
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4750
Expands certain employer reporting requirements to include entities that employ or contract with individuals for financial compensation, including ridesharing and delivery technology platforms.
Last Action: October 10, 2024 – Introduced, Reported out of Assembly Committee, 2nd Reading
Assembly Bill 2100
Provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks.
Last Action: September 19, 2024 – Reported out of Asm. Comm. With Amendments, and referred to Assembly Public Safety and Preparedness Committee
Senate Bill 3772
Concerns valuation of board and lodging with respect to workers’ compensation.
Last Action: October 10, 2024 – Introduced in the Senate, Referred to Senate Labor Committee
Nov 4, 2024
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
10/1/2024 – 10/31/2024
MODIFICATION PETITIONS – LABOR MARKET SURVEY
QUALIFICATIONS OF A VOCATIONAL WITNESS
Stuart Brooks v. Trustees Of The University Of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: October 21, 2024
Issue:
Whether employer’s vocational expert failed to comply with the applicable Code of Professional Ethics?
Background:
Claimant was working for Employer as a nurse when he was injured while assisting a patient. Employer immediately began issuing wage loss benefits. In 2020, Employer filed a Modification Petition, in which it alleged that Claimant was capable of working and asserted that that jobs within his physical capabilities were identified and provided to Claimant through a labor market survey. The WCJ granted the Modification. Claimant appealed to the Board, which affirmed the WCJ.
Holding:
Claimant’s allegation that employer’s vocational expert violated the provision that vocational experts “shall comply with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses” was without merit. While the vocational expert may have incorrectly added the initials “CDMS” to his name in written correspondence after his CDMS credential had expired, neither the Act nor the Regulations calls for disqualification of a vocational expert who inaccurately includes credentials on written correspondence. The expert complied with the plain language of Section 306(b)(2). Further, this issue did not implicate any due process rights.
Affirmed.
MODIFICATION PETITIONS
CLAIMANT’S GOOD FAITH OBLIGATION
Eugena B. Cowen v. Department of Corrections (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 15, 2024
Issue:
Whether the WCJ’s decision was based upon substantial evidence and legally correct?
Background:
Claimant, a corrections officer, sustained a work-related injury. Claimant filed multiple review petitions alleging additional injuries. Employer filed a suspension petition alleging that it offered Claimant modified-duty work within her medical restrictions but that she had not returned to work. Claimant acknowledged receiving a letter from Employer offering a light-duty position. She stated that she had not accepted that position because she did not feel able to work in any capacity that involved potential inmate contact. Although the WCJ found Claimant generally credible, Claimant failed to meet her burden of proof on her review petitions seeking to add additional conditions to the description of injury. The WCJ also concluded that Employer carried its burden of proof to show that Claimant was physically able to perform the offered position and that her refusal to return to work for that position was in bad faith. Accordingly, the WCJ granted Employer’s suspension petition with regard to the offered position. The Board affirmed.
Holding:
If the Claimant does not exercise good faith with regard to the offered position, then her benefits can be suspended. Bad faith does not require overt malfeasance on the part of the Claimant; it may be found if the Claimant merely refuses to follow up on a job referral without a sufficient reason. This determination is a matter of credibility and evidentiary weight reserved to the WCJ. Employer’s offered position satisfies the Kachinski test. The experts’ testified that Claimant could resume her full-time duties and, by extension, the light-duty position. Credited by the WCJ, this was sufficient medical evidence that Claimant’s physical condition had improved. Employer also showed that Claimant was able to perform the offered job, as evidenced by the permission of her treating doctor, which he confirmed in his testimony. The WCJ credited the testimony describing the offered position. Claimant failed to provide a sufficient reason for her refusal to return to work and, as such, did not act in good faith. Claimant did not establish that she received ineffective assistance of counsel. A remand to the Board for a rehearing is not warranted. Claimant failed to meet her burden of proof on her review petitions seeking to expand the description of injury to include lower back injuries and more extensive neck and left shoulder injuries. Employer met its burden of proof on its suspension petition based on the offered position. As such, the WCJ did not err in denying Claimant’s review petitions and granting Employer’s suspension petition and the Board did not err in affirming those determinations.
Affirmed.
TIMELINESS OF THE NOTICE OF THE INJURY AND THE FILING OF THE CLAM
THE DICOVERY RULE AND ACT 46 CLAIMS
West Conshohocken Borough v. David Markland (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 10, 2024
Issues:
Whether the Board should have reversed the WCJ’s award for a lack of findings of fact regarding notice under Section 311 of the Act? Whether the Claimant filed his Claim Petition more than three years after his date of diagnosis?
Background:
On December 27, 2019, Claimant filed a Claim Petition based upon an occupational disease. The Claim Petition was for an Act 46 (firefighter/cancer) claim. In his Claim Petition, Claimant listed the date of notice to Employer as August 23, 2019. Claimant indicated he gave notice verbally after speaking with counsel prior to any physician advising that his cancers were due to his fire service. Regarding notice, Claimant said that he first learned of potential claims from a physician/expert after receiving a physician’s opinion just before filing. The WCJ granted Claimant’s Claim Petition. Employer appealed the decision to the Board, and the Board affirmed.
Holding:
The WCJ made no specific finding regarding notice. However, the Board noted the WCJ accepted Claimant’s testimony. Claimant testified he learned of Act 46 after a discussion with a fellow firefighter in June 2019. On August 23, 2019, Claimant provided notice to Employer. Claimant had actual knowledge of the nexus between firefighting and his cancer only after he reviewed his expert’s report on December 27, 2019. Claimant did not fail to act with reasonable diligence in attempting to discover the cause of his conditions. Claimant provided timely notice of an injury and its relationship to his employment and determining benefits began when he became disabled. Further, Claimant did make a timely claim for benefits under Section 315 of the Act. Claimant filed his Claim Petition in December 2019, within three years from his date of injury. Therefore, the Board did not err by concluding Claimant timely filed his Claim Petition. The WCJ’s findings are supported by the record. The WCJ did not err in finding Claimant was entitled to benefits.
Affirmed.
AVERAGE WEEKLY WAGE CALCULATION
USING A METHOD NOT SET FORTH IN THE ACT
Daniel Critton v. Fine Arts Discovery Series (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 22, 2024
Issue:
Whether the WCJ’s calculation of the AWW constituted legal error?
Background:
Claimant suffered an injury while working for Employer. The WCJ concluded that Claimant earned pay from the Johnson & Johnson employment in addition to the pay from Employer. The WCJ noted Claimant’s admission that he worked limited hours to keep his employment income below $14,000 yearly in order to remain eligible for Social Security disability. Thus, the WCJ concluded that Claimant’s weekly wage was $269.23—i.e., $14,000 divided by 52 weeks—resulting in a weekly compensation rate of $242.30. Claimant appealed and the Board affirmed.
Holding:
Section 309 is designed to ensure an accurate calculation of wages, for which purpose the General Assembly provided differing methods of calculation to account for factors unique to different employment arrangements. The method of calculation prescribed by subsection (d) does not control in a circumstance, such as this one, where it would lead to a grossly and demonstrably inaccurate measure of a worker’s AWW. It furthers the legislative intent of Section 309 in such instances to permit a calculation of AWW that does not strictly follow any of the methods prescribed in Section 309, where a rigid adherence to those methods would lead to an absurd and unreasonable result. The only evidence of Claimant’s income in the record is his own testimony. There is nothing in the record to support the claim that Claimant’s 40-hour work weeks at Johnson & Johnson continued throughout the year. To the contrary, Claimant testified unambiguously that the hours worked at Johnson & Johnson were limited by his Social Security disability earnings cap to $14,000, annually. The WCJ’s decision was a correct exercise of his jurisdiction over Claimant’s workers’ compensation benefits. Because of Claimant’s failure to produce documentary evidence of his hours worked at Johnson & Johnson, his testimony regarding the limits on his work hours imposed by his Social Security benefits was the only evidence available to the WCJ addressing the question of how many hours Claimant worked.
Affirmed.
PENSION OFFSETS
RETROACTIVE OFFSETS GEATER THAN SIX MONTHS
William Gallese v. The Pietrini Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 11, 2024
Issue:
Whether the Board erred by affirming a retrospective pension offset greater than 6 months?
Background:
Claimant sustained a work injury on October 24, 2016. He retired on August 1, 2019, and began receiving a monthly pension. On April 10, 2020, Employer filed the Modification Petition seeking an offset of Claimant’s WC benefits as of April 10, 2020, for Claimant’s receipt of Employer’s funded pension. The WCJ granted the Modification Petition, concluding that Employer was entitled to an offset by the net amount of Claimant’s pension benefits. The WCJ determined that Employer was entitled to a pension offset credit for the entire period of August 1, 2019 through February 8, 2021, and ongoing. The Board affirmed.
Holding:
The doctrine of laches is available in administrative proceedings where no time limitation is applicable, where the complaining party failed to exercise due diligence in instituting an action and where there is prejudice to the other party. It was uncontested that Employer failed to notify Claimant of his reporting requirements and overpaid Claimant for 18 months entirely due to Employer’s lack of due diligence to notify Claimant of his reporting requirements at any point in time. However, Claimant submitted no evidence of hardship/inequity. Further, there is no presumption that a recoupment is prejudicial. Finally, the LIBC Forms weren’t an absolute condition precedent to a retroactive offset.
Affirmed.
REINSTATEMENT PETITIONS
Robert Mullarkey v. The GEO Group Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 22, 2024
Issue:
Whether Claimant had a right to immediate reinstatement of his indemnity benefits for the 2004 Injury, once his 2001 Injury was resolved?
Background:
Claimant worked as the fire and safety director at the Delaware County Prison when he sustained the 2001 Injury. Claimant sustained the 2004 Injury, which was a work-related aggravation of Claimant’s “symptomatic congenital spondylolisthesis” in his low back. Claimant was awarded benefits for the 2001 Injury, which were suspended from June 7, 2001, until July 9, 2004, when Claimant became unable to perform his pre-injury position. Claimant’s 2004 Injury also was found to separately prevent Claimant from performing his pre-injury job. The WCJ described her 2008 Decision, granting a claim petition for the 2004 Injury, as awarding medical benefits and indemnity benefits payable after a cessation of Claimant’s receipt of workers’ compensation benefits for the 2001 Injury. Claimant continued to receive ongoing payments of total disability benefits related to the 2001 Injury until August 24, 2022, when a different WCJ granted a C&R Petition. In subsequent litigation, the WCJ held that Employer and carrier had no right to an offset for the paid amounts in accordance with the terms of the C&R Agreement and denied the Review Petition. However, the WCJ held that Employer was liable for the payment of indemnity benefits to Claimant for the 2004 Injury. The Board reversed the WCJ’s reinstatement of Claimant’s benefits for the 2004 Injury. The Board reversed on the issue of reinstatement of those 2004 benefits.
Holding:
The C&R Agreement may have addressed Claimant’s right to receive ongoing WC benefits for the 2001 Injury, but it did not address or resolve Claimant’s “disability” associated with the 2001 Injury, as Claimant remained unable to work his pre-injury position due to that injury both before and after the C&R Agreement’s approval. Having not alleged or proven a change in condition as to either injury or in his earning capacity as to the 2001 Injury, Claimant is not entitled to the reinstatement of the 2004 Injury benefits based on the C&R Agreement and 2008 Decision alone. Claimant, was required to, but did not, present evidence as to whether his current loss of earnings was related to the 2004 Injury, rather than the 2001 Injury. Instead, Claimant relied solely on the C&R Agreement and the 2008 Decision to argue, essentially, that his right to the immediate reinstatement of the total disability benefits for the 2004 Injury was automatic. Claimant’s position is not supported by Section 413(a) or the above precedent, both of which require evidence of a change in disability to reinstate suspended wage loss benefits. The 2008 Decision, itself, acknowledged that the payment and suspension of the benefits was subject to the Act’s requirements. The reinstatement of Claimant’s disability benefits for the 2004 Injury was in error.
Affirmed.
SUBSTANTIAL AND COMPETENT EVIDENCE
Joseph Pfeifer v. Temple University Hospital (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 9, 2024
Issues:
Whether the WCJ’s findings were inconsistent with the current understanding of Long COVID?
Background:
Claimant contracted COVID-19 in September 2020 while employed as a registered nurse for Employer. Employer accepted Claimant’s work injury through issuance of a Notice of Temporary Compensation Payable (NTCP) on October 27, 2020, which converted to a Notice of Compensation Payable (NCP) by operation of law. Employer filed a Termination Petition alleging that Claimant had fully recovered from his work injury and that he was able to return to work without restrictions. Employer filed a Suspension Petition, based on a specific job offer made on June 15, 2021. In a decision circulated on October 28, 2022, the WCJ rejected Claimant’s testimony as not credible, unpersuasive, and lacking in candor. The WCJ specifically rejected Claimant’s contention that he continued to suffer from any disabling symptoms of COVID-19, noting that Claimant’s complaints were not objectively verifiable and, therefore, must be compared with the evidence of record. Based on this and her other findings and credibility determinations, the WCJ found that Claimant had fully recovered from his work injury as of April 28, 2021, the date of Dr. Bennett’s IME. Accordingly, the WCJ granted Employer’s Termination Petition and dismissed the Suspension Petition as moot. The Board affirmed.
Holding:
Initially, Claimant also argued that the WCJ’s reliance on Claimant’s social media posts violated his First Amendment right to free speech. However, at no point did Claimant, or his counsel, object to the admissibility of these posts. Accordingly, Claimant waived the issue. The court rejected Claimant’s argument that the WCJ should have considered extrajudicial scientific evidence, as it ignores the plain language in Section 418 of the Act. It was Claimant’s responsibility to introduce any “known science” that would have refuted an expert’s opinions. He did not. The Court will not upend the WCJ’s decision, or the Board’s affirmance thereof, based on matters outside the certified record. The WCJ explained in detail why she favored the opinions of employer’s expert over the Claimant’s. Claimant’s disagreement with the opinion and his desire for a different outcome is not a sufficient basis for overturning the WCJ’s findings of fact and credibility determinations.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
THE CONSIDERATION OF NON-ACCEPTED CONDITIONS
City of Philadelphia v. Lamont Turner (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: October 17, 2024
Issue:
Whether the Board and the WCJ erred as a matter of law in applying Duffey II and Sicilia I?
Background:
On March 3, 2006, Claimant was injured in the course and scope of his employment. In 2021, a WCJ’s decision found that Claimant had fully recovered from his left knee, left hip, and bilateral feet injuries, but further concluded that Claimant had not fully recovered from his low back injury. Thereafter, Employer requested that the Claimant have and IRE. This modification petition was filed based upon that IRE report. The IRE did not evaluate or rate Claimant’s prior knee, hip, and foot injuries, as Claimant had fully recovered from them. It also excluded certain other complaints on the part of the Claimant. The IRE calculated Claimant’s whole-person impairment rating to be 31%. However, the WCJ denied the Modification Petition and directed that Claimant’s benefit status remain as TTD. The Board affirmed.
Holding:
In Duffey II, the Pennsylvania Supreme Court considered whether an IRE physician-evaluator fulfilled his obligations under former Section 306(a.2) of the Act, formerly 77 P.S. § 511.2,7 where the physician-evaluator, in calculating the Claimant’s whole-person impairment rating, did not specifically consider the Claimant’s reported psychological conditions of adjustment disorder, depressed mood, and chronic post-traumatic stress disorder. The Court concluded that, IRE examiners must exercise independent professional judgment to make a whole-body assessment of the degree of impairment due to the compensable injury, which discernment cannot be withheld on the basis that the physician-evaluator believes the undertaking is a more limited one. In Sicilia I, the Commonwealth Court applied the Supreme Court’s holding in Duffey II in considering whether a physician-evaluator properly excluded certain diagnoses from the calculation of the Claimant’s whole-person impairment rating because the diagnoses were not included in the accepted description of the Claimant’s injuries. The Court noted that, per Duffey II, an IRE physician-evaluator may properly consider conditions or impairments not expressly included in the Claimant’s accepted or adjudicated injury description in calculating a whole-person impairment rating. A WCJ errs as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of the Claimant’s work injuries. As it was undisputed in the record that (1) Claimant reported the “non-considered” conditions to the IRE evaluator, (2) the IRE evaluator opined that each of the conditions at least reasonably could be “due to” Claimant’s lower back injury, and (3) the IRE evaluator nevertheless did not consider the conditions in his whole-person impairment rating specifically because they were not part of Claimant’s work injury description, the Board and the WCJ did not err in denying the modification.
Affirmed.
(NOTE: A Concurrence was issued in which it was expressed that it should not be the job of the IRE physician to ferret out what conditions may be attributable to the compensable injury based on comments made by the Claimant during the IRE. This is, nevertheless, the current state of the law. As Duffey II blurs the distinction between defining a work injury and determining the impact of that work injury upon the Claimant’s earning power, Duffey II should be revisited.)
COURSE AND SCOPE AND NOTICE
EMPLOYER’S KNOWLEDGE OF WORK-VACATION INJURY
COMPENSIBILITY OF WORK-VACATION INJURY
Power Home Remodeling v. Matthew Hess (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: October 8, 2024
Issues:
Whether Claimant’s injury occurred outside the course and scope of his employment? Whether Claimant afforded Employer proper notice of his work-related injury under the Act?
Background:
Claimant suffered severe injuries from an accident which occurred during an ATV tour in West Virginia. Claimant filed a Claim Petition, seeking full disability benefits ongoing and asserting that Employer was afforded verbal notice of the injury. Employer argued that Claimant’s injuries were not within the course and scope of his employment and denied that Claimant afforded timely notice. Employer had a history of encouraging teamwork, bolstering morale, and finding promising candidates for promotion and recruitment within the company. To this end, certain management employees, including Claimant, were given $1,500.00 monthly to further these goals. Consistent with these objectives, Claimant testified that he organized a three-to-four-day ATV tour in West Virginia for himself and others. He was injured. The WCJ found that Claimant’s injury was in the course and scope of his employment and that Employer was afforded timely notice of the injury. Employer appealed to the Board, which affirmed.
Holding:
The credible evidence established that one could directly trace the activity at issue to an objective of Claimant’s employment and one which Employer fervently encouraged. Morale boosting or leisure activities have been found to further the business of the employer where the activity at issue was aligned with some objective or requirement of the Claimant’s employment. The inquiry focuses less so on the activity at issue than it does on whether the activity was traceable to the employer’s encouragement or policy. A critical inquiry is whether it was purely voluntary or was it encouraged by the employer in the pursuit of a specific objective or policy. As for notice, section 311 explicitly permits Claimants to recover workers’ compensation benefits, even in the absence of formal notice, where the employer has actual knowledge of the injury. As such, here, Employer’s decision to fly Claimant’s mother to the hospital where he was being treated and to book a hotel room for her to stay in pending his treatment belies Employer’s arguments now because Employer necessarily had actual knowledge of Claimant’s injury and the circumstances giving rise to it. Claimant’s contention that the injury was work related was not obfuscated by a preexisting condition. Employer had knowledge of the trip, its participants, Claimant’s desire to recruit or promote these participants, and his resulting severe injuries. The totality of the circumstances indicate that Employer was aware of Claimant’s work trip and the severity of his injuries which provided Employer with sufficient notice under Section 312. Although his notice may have been imperfect, it still served as proper notice of injury under the Act.
Affirmed.
PENNSYLVANIA LEGISLATIVE REVIEW
THERE ARE NEW LAWS OUT THERE!
House Bill 760 was referred to the Senate and was considered as Senate Bill, SB 1232.
It requires insurers offer Direct Deposit, and that they “shall” notify the Claimant of that option.
On 10/29/2024 Governor Shapiro signed SB 1232 into law as Act 126 of 2024. It takes effect in 60 days.
House Bill 1632 was referred to the Senate and was considered as Senate Bill, SB 365.
This bill entitles “First Responders” to benefits for PTSD without the need to establish “abnormal working condition” – in the defined situations, called “a qualifying traumatic event”. These terms are defined within the Bill. There is a limit to the period that benefits are payable, 104 weeks. The claim shall be based on assessment and diagnosis by a licensed medical professional or a licensed mental health professional whose scope of practice includes evaluation, assessment and diagnostic privileges specified by the scope of practice of the profession psychologist or psychiatrist under the laws and regulations of this Commonwealth. Additional limitations on such claims are that they must be filed no later than three years after the date of a diagnosis and the injury shall not have occurred more than five years before the effective date of this law.
On 10/29/2024 Governor Shapiro signed SB 365, the PTSI for first responders bill, into law as Act 121 of 2024. It takes effect in one year.
STILL UNDER REVIEW
As of October 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 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 LEGISLATIVE UPDATE
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4750
Expands certain employer reporting requirements to include entities that employ or contract with individuals for financial compensation, including ridesharing and delivery technology platforms.
Last Action: October 10, 2024 – Introduced, Reported out of Assembly Committee, 2nd Reading
Assembly Bill 2100
Provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks.
Last Action: September 19, 2024 – Reported out of Asm. Comm. With Amendments, and referred to Assembly Public Safety and Preparedness Committee
Senate Bill 3772
Concerns valuation of board and lodging with respect to workers’ compensation.
Last Action: October 10, 2024 – Introduced in the Senate, Referred to Senate Labor Committee
Oct 7, 2024
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
09/1/2024 – 09/30/2024
REINSTATEMENT AND REVIEW PETITIONS
Pennsylvania Liquor Control Board v. Amato Berardi (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 20, 2024
Issue:
Whether the Board erred affirming the WCJ’s decision to grant the Reinstatement Petition, Review and Penalty Petitions?
Background:
Claimant tripped over a cement barrier and fell on his right knee and right elbow when returning to work from lunch. Claimant continued to work for a few weeks with worsening right knee pain. Employer placed Claimant on modified duty. Even though no doctor advised him against working, Claimant stopped working after a few more weeks. Claimant underwent surgery on his right knee. Claimant then returned to work in a modified-duty capacity, pursuant to a release signed by his surgeon. On August 3, 2020, Employer sent Claimant a letter indicating he was entitled to a period of six months of modified-duty employment, which would expire on August 25, 2020. The letter explained Claimant would not be allowed to work beyond August 25, 2020, unless his physician released him to perform full duties by that date. Claimant’s physician did not release him to full duty, so Employer terminated Claimant’s employment on August 25, 2020. There were many petitions filed. Eventually, the WCJ granted the Reinstatement, Review, and Penalty Petitions. The Board affirmed.
Holding:
The Board did not err in affirming the WCJ’s decision to grant the Reinstatement Petition. Claimant was on modified-duty employment at the time Employer terminated his position so Claimant was entitled to a presumption that his loss of earning power was caused by his work injury. Additionally, substantial evidence supported the WCJ’s decision to grant the Review Petition. Claimant’s expert’s testimony was based upon his review of Claimant’s medical records, rendering his opinions competent. As for the penalty petitions, Employer became liable to pay Claimant benefits as of the date the Board denied Employer’s request for supersedeas in its appeal of the WCJ’s decision granting the Claim Petition. Employer gave no specific reason for these payments being late. Further, Claimant introduced into the record the actual bill and procedure note. Employer’s contest was unreasonable. Employer’s legal arguments relating to Claimant’s alleged premature filing of the Reinstatement Petition lacked merit. The only medical evidence Employer entered into the record was testimony concerning Claimant’s Review Petition and the expansion of his injury to include a left knee. Employer produced no evidence that Claimant could have worked his full duty job when they terminated his employment on August 25, 2020. Because Claimant had the presumption that his wage loss after that point was work-related, as the result of working modified duty, it was Employer’s burden to prove the wage loss was from another nonwork-related cause. Because Employer failed to produce any evidence that, if accepted, would have met its burden, its contest was unreasonable.
Affirmed.
SUBROGATION
American General Life Insurance Company v. Joseph M. Grosso (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 26, 2024
Issues:
Whether the Board erred by limiting the amount and scope and Employer’s subrogation lien?
Background:
American General Life Insurance Company (Employer) petitioned for review from the decision and order of the Workers’ Compensation Appeal Board (Board). In the July 2022 Board Opinion, the Board affirmed a 2021 order of a Workers’ Compensation Judge (WCJ), in which the WCJ granted Employer’s Modification Petition seeking enforcement of its subrogation rights but did not award Employer the full amount it sought. The WCJ concluded that Employer waived the right to recover any additional funds by virtue of the C&R Agreement entered into by Employer years after the Third-Party Settlement. The Board affirmed.
Holding:
The purpose of subrogation is threefold: it prevents double recovery for the same injury; it relieves the employer of liability occasioned by the negligence of a third party; and it prevents a third party from escaping liability for his negligence. By its terms, subrogation “admits no express exceptions, equitable or otherwise.” The employer’s subrogation rights are statutorily absolute and can be abrogated only by choice. To the extent an employer’s subrogation rights may be implicitly waived, such an implicit waiver of rights must be supported by evidence of employer bad faith or dereliction of duty. The instant matter involves no express waiver of Employer’s subrogation rights and no evidence of bad faith or dereliction of duty to support an implicit waiver of those rights. The evidence of record indicates that Employer did not intend to waive its Section 319 subrogation rights. The Modification Petition explicitly stated that Employer was seeking subrogation pursuant to Section 319 of the Act and made explicit reference to the Third-Party Settlement in so stating. Likewise, the C&R Agreement specifically preserved Employer’s subrogation rights in Paragraph 11 and in the Addendum, both of which expressly indicated that the C&R Agreement was not intended to have any effect on the instant litigation concerning Employer’s claimed subrogation lien. By concluding that Employer implicitly waived its statutory subrogation rights by failing to inform the WCJ or Claimant that it intended to pursue those rights, the WCJ fashioned an impermissible equitable exception to Employer’s automatic, absolute right to subrogation. The WCJ’s suggestion that Employer should have stated on the record at the hearing that it intended to seek satisfaction of its subrogation lien as against the Third-Party Settlement placed a requirement on Employer that does not exist in the Act and created an impermissible equitable exception to Employer’s Section 319 subrogation rights. The WCJ erred by determining that Employer waived its claim for additional recovery based on the Third-Party Settlement in the later C&R Agreement and the instant proceedings.
REVERSED and the matter is REMANDED.
ATTORNEY FEES
Gregory Elder v. Crane Resistoflex (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: September 11, 2024
Issue:
Whether the WCJ erred in denying the Counsel fee on medical bills?
Background:
Claimant, through his counsel, petitions for review of a decision of the Workers’ Compensation Appeal Board (Board) affirming a workers’ compensation judge’s (WCJ) decision denying the contingency fee agreement between Claimant and Counsel regarding Counsel’s entitlement to 20% of Claimant’s medical benefits, while still approving Counsel’s share of indemnity benefits. The WCJ reasoned that, notwithstanding Claimant’s intention to enter into the agreement, Claimant did not sufficiently understand its “breadth.”
Holding:
The Court reversed and remanded the matter to the Board for further remand to the WCJ. The counsel fee should be calculated against the entire award, without regard for whether the award is for medical or indemnity compensation. Further, the terms of the fee agreement govern, and it is incumbent upon the claimant to establish that the parties intended the counsel fee be applied to the entire award, including medical compensation. By the terms of the WCJ’s own decision, Claimant testified that he understood the fee agreement related to both medical and indemnity. The WCJ improperly reasoned that Claimant’s understanding was insufficient because there was no testimony indicating whether Claimant understood that he may be liable to his medical providers for any future unpaid portion of his medical expenses relating to his compensable injury. As a 20% contingency fee for indemnity benefits is per se reasonable, and as the balance billing prohibition under Section 306(f.1)(7) of the Act would protect Claimant in such a case, the WCJ erred in determining that Claimant’s testimony was insufficient to warrant the approval of the fee agreement as to both medical and indemnity benefits awarded in this matter.
REVERSED. This matter is REMANDED.
UTILIZATION REVIEW
Michael Perry v. Mid Atlantic Hose Center, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 17, 2024
Issues:
Whether there were deficiencies in the UR process such that the UR determination was void ab initio and whether the WCJ erred in denying Claimant’s penalty petition?
Background:
Claimant sustained an injury described as an upper neck and back strain during the course of his employment with Employer. Employer requested a utilization review (UR) of treatment provided to Claimant by various providers and determinations were rendered. Claimant and Employer filed petitions for review the UR Determinations. Claimant filed a penalty petition alleging Employer’s failure to pay for reasonable and necessary medical treatment. Based on his review of the evidence and testimony presented by the parties, the WCJ found Claimant credible as to his ongoing symptoms related to his work injury. The WCJ concluded that Employer sustained its burden of proving that, as of June 22, 2021, the treatment was neither reasonable nor necessary; that Claimant failed to sustain his burden of proving that Employer wrongfully failed to pay medical bills or wrongfully denied reimbursement for out-of-pocket expenses; and that Claimant failed to sustain his burden of proving a violation of the Act.
Holding:
Claimant argued that the UR Request forms in this action were not properly completed because they failed to list all treating physicians over the entirety of Claimant’s claim. Contrary to the claimant’s arguments, the Hughes Court did not agree that the failure to list all of a claimant’s other treatment providers on the UR request form made it impossible for the reviewing doctor to obtain and review other providers’ records. Further, the Hughes Court disagreed with the claimant’s argument that a URO’s failure to obtain medical records from his earlier treating doctors rendered the UR determinations inadmissible and/or incompetent to support a finding that the treatment was not reasonable or necessary. The absence of other providers’ medical records, if any, goes to the WCJ’s weighing of the evidence, which is beyond this Court’s scope of review. Each reviewing doctor listed the records reviewed; documented contacts/attempted contacts with the provider under review; and made findings and conclusions, providing a detailed explanation of the reasons for the conclusions reached. Therefore, the record was devoid of any facts supporting Claimant’s assertion that the UR Reports in this case are defective. Finally, it cannot be said that the WCJ failed to issue a reasoned decision. Claimant’s argument appears to be a challenge to the WCJ’s rationale in rejecting certain testimony and evidence. The WCJ is the fact finder, and it is solely for the WCJ to assess credibility and resolve conflicts in the evidence. As for the Claimant’s penalty petition, which asserted that Employer failed to pay specific medical bills related to reasonable and necessary medical treatment, the WCJ determined that while Employer had paid some of the disputed bills, others were not paid because they were unsupported by documentation showing that the treatment was related to Claimant’s work injury; thus, the WCJ concluded that Claimant failed to sustain his burden. In this case, the record does not reflect that Claimant took any steps to have Employer comply with the subpoena for the relevant requested records; rather, Claimant skipped the procedures set forth in Section 436 of the Act and sought to have the WCJ draw an adverse inference. There were no deficiencies in the UR process, the Employer presented competent evidence, and the WCJ issued a reasoned decision. Therefore, Claimant’s penalty petition was properly denied.
Affirmed.
JUDICIAL DISCRETION
Leonard Patrick v. Velocity Rail Solutions (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 12, 2024
Issue:
Whether the clamant suffers from a disabling work-related injury?
Background:
On January 25, 2022, Claimant filed a Claim Petition, alleging that he sustained a perforated eardrum and a loss of hearing in his right ear, secondary to noise at work. Claimant sought total disability benefits from December 1, 2019, and ongoing. The WCJ found Claimant’s testimony not credible to the extent that Claimant attributed his perforated right eardrum and related complaints to the alleged workplace noise trauma. Regardless of causation, the WCJ maintained that the issue of Claimant’s disability is far from clear. Claimant testified that balance issues prevented him from driving, but there are no complaints of balance issues documented in the Concentra clinic note. Following his visit to Concentra, Claimant was released to full activity and continued working full duty as a driver for Employer for a number of weeks before being “let go.” Further, during the course of her testimony, Claimant’s expert did not mention that Claimant complained of balance issues throughout his multiple contacts with her. Ultimately, the WCJ denied and dismissed Claimant’s Claim Petition. On appeal, the Board affirmed.
Holding:
The claimant bears the burden of proving all elements necessary to support an award in a claim proceeding. The claimant must also establish that the disability continues through the pendency of the claim petition proceedings. Where the causal relationship between the work incident and the disability is not obvious, unequivocal medical evidence is necessary to establish it. The pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. The Court agreed with the WCJ and Board that Claimant did not meet his burden to establish that he was entitled to disability benefits. Claimant’s testimony concerning the workplace noise trauma and his alleged disability were belied by his medical records. Claimant’s testimony is also contradicted. Based on these inconsistencies, the WCJ found Claimant’s testimony not credible. Claimant failed to present any competent or credible evidence supporting his assertions that the eardrum perforation was the result of a work-related incident.
Affirmed.
TERMINATION PETITION
Sandra Carter-Zimmitt v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Filed: September 10, 2024
Issues:
Whether the Employer established that Claimant had fully recovered from her work injury?
Background:
In 2018, Claimant was injured in the course and scope of her employment, sustaining contusions to her lower back and left wrist. In 2020 the WCJ expanded the description of Claimant’s injury. Employer filed a termination petition alleging that Claimant had fully recovered from her work injury. The WCJ granted Employer’s termination petition. Claimant appealed to the Board, arguing that the WCJ erred in terminating her benefits because Employer’s medical expert did not recognize the full extent of her work injuries, which rendered his opinion incompetent. The Board affirmed.
Holding:
This Court will not disturb a WCJ’s findings if there is substantial evidence in the record to support the findings. Substantial evidence supports the WCJ’s decision. A WCJ is under no obligation to accept the opinion of the treating physician over the opinion of an IME expert retained by the employer. Here, the WCJ found employer’s expert more credible than the claimant’s treating physician and fully explained the reasons for that determination. The Court rejected the Claimant’s argument that the WCJ erred in crediting employer’s expert’s testimony for the stated reason that he referred to his written reports in his testimony. The Board did not err in affirming the WCJ’s grant of Employer’s termination petition.
Affirmed.
PENNSYLVANIA LEGISLATIVE REVIEW
As of September 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration, or consideration.
Regular Session 2023-2024
House Bill 760
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.
Subject: Direct Deposit for Workers’ Compensation
This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year. This proposed legislation was presented to the Pennsylvania Bar Association, House of Delegates, at the House meeting on May 10, 2024, and received overwhelming support.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
House Bill 930
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation. Expanding Workers’ Compensation for Permanent Disfigurement
Subject: Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
House Bill 1632
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in interpretation and definitions, further providing for definitions; and, in liability and compensation, providing for compensation for post-traumatic stress injury.
Subject: Covering Post-Traumatic Stress Injuries under Worker’s Compensation for First Responders.
This bill seeks to amend the Worker’s Compensation Act to allow an eligible first responder who sustains a PTSI in the course and scope of employment and has received a PTSI diagnosis from a licensed medical or mental health professional, workers’ compensation benefits, if the claim is filed within three years of the date of PTSI diagnosis.
Last Action: Referred to LABOR AND INDUSTRY, May 28, 2024 [Senate]
NEW JERSEY WORKERS’ COMPENSATION
NEW JERSEY LEGISLATIVE UPDATE
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4750
Expands certain employer reporting requirements to include entities that employ or contract with individuals for financial compensation, including ride-sharing and delivery technology platforms.
Last Action: September 19, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 2100
Provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks.
Last Action: September 19, 2024 – Reported out of Asm. Comm. With Amendments, and referred to Assembly Public Safety and Preparedness Committee
Sep 11, 2024
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
08/1/2024 – 08/31/2024
EXCLUSIVITY – STATUTORY EMPLOYER
Brian Feldman v. CP Acquisitions 25, Vito Braccia Construction, LLC et al.
APPEAL OF: VITO BRACCIA CONSTRUCTION, LLC
Superior Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 14, 2024
Issues:
Whether judgment notwithstanding the verdict is required because VBC is entitled to immunity as a statutory employer under the Workers’ Compensation Act?
Background:
Vito Braccia Construction (“VBC”) appeals from the judgment entered by the Philadelphia County Court of Common Pleas (“trial court”) in favor of Claimant. On appeal, VBC challenges the trial court’s denial of its request for judgment notwithstanding the verdict (“JNOV”) based upon VBC’s claimed immunity under the Workers’ Compensation Act. This case involves a workplace electrocution accident which inflicted grievous injuries on Feldman, while he was engaged in a tree removal project. Cross Properties had acquired property in Bala Cynwyd and had engaged different contractors to construct an apartment building on it. Cross Properties made arrangements for the removal of the trees and reached out to VBC to take on the tree removal project. VBC contacted Colonial Tree Service. The power lines were not discussed during this visit to the site. Following the site walk, Cross was given a price for the job, to which it agreed. Despite the known hazard posed by the power lines, there was no preplanning for the tree removal project, and it was admitted that VBC failed to live up to his safety responsibilities. Colonial removed the first four trees without incident. However, the fifth tree Colonial tried to remove was on SEPTA property and only five feet horizontally from a 138,000-volt overhead power line, well within the 15-foot radius that is considered dangerous. As the tree segment was being lifted, the electricity from the power line arced to the hoist line, and electrocuted Feldman.
Holding:
Here, the project in question was for the removal of trees located on adjacent properties which obstructed the view. The trees were of the type that dot an urban landscape, possibly as a visual or sound barrier between properties, and, based on the evidence presented, were dead or dying at the time Colonial was set to remove them. The trees in question were not “timber,” so section 302(a) of the Workers Compensation Act did not apply to the tree removal work performed. Section 302(b) states, in pertinent part: Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employe or contractor, if primarily liable for the payment of such compensation, has secured the payment thereof as provided for in this act. Even assuming that there was a valid contract between VBC and any of the Cross Properties entities for the tree removal, there is no evidence that VBC contracted with an owner or one in the position of an owner. Cross Properties requested that Mr. Braccia remove trees on the neighboring property to allow for an unobstructed view of the city. No entity associated with the tree removal project obtained SEPTA’s permission to enter upon its property and remove the tree that resulted in Claimant’s injuries. There was no contract with SEPTA, the owner of the property, nor was VBC authorized to permit subcontractors to enter upon SEPTA’s property. On this basis, VBC fails to satisfy the first element of the McDonald test, as he did not have a contract with the owner of the property or someone in the position of the owner of the property in question.
Affirmed.
PENSION OFFSETS AND VOLUNTARY REMOVAL
Thomas A. England v. Merion Construction, et al. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: August 7, 2024
Issue:
Whether Merion was the employer directly liable for the payment of compensation, rather than Schnoll, and Schnoll was not entitled to a pension offset? Whether Claimant voluntarily removed himself from the workforce?
Background:
Claimant injured his left knee on August 11, 2010, while working as a union painter for Schnoll. Merion was the general contractor for the project where Claimant was injured, and Schnoll was a subcontractor. Claimant’s case proceeded along two different docket numbers. Schnoll filed a modification petition alleging Claimant had an earning power based on a labor market survey. The WCJ granted Schnoll’s modification petition. Meanwhile, Schnoll filed a petition to modify or suspend Claimant’s WC benefits based on Claimant’s receipt of a union disability pension. Schnoll also filed a second modification petition in 2016, based on Claimant’s alleged earning power of $1,346 per week. Claimant filed a petition to join Merion as an additional employer and New Hampshire as an additional insurer. Further, Schnoll filed a petition to suspend Claimant’s WC benefits on January 23, 2018, based on the allegation that Claimant had voluntarily withdrawn from the workforce. The WCJ circulated a decision granting Schnoll’s modification and suspension petitions and denying Claimant’s joinder, review, and penalty petitions. The Board affirmed two decisions.
Holding:
The Court determined that the relevant law supports the WCJ’s conclusions that (1) Schnoll was the employer directly liable for the payment of compensation, (2) Schnoll was entitled to a pension offset in the amount of $133.47 per week as of March 1, 2011, (3) Claimant had an earning power of $1,346 per week as of November 12, 2016, and (4) Claimant voluntarily withdrew from the workforce as of January 9, 2018. The record supports the WCJ’s conclusion that Schnoll, rather than Merion, was the employer directly liable for the payment of compensation. Further, the WCJ considered the totality of the circumstances and concluded Claimant voluntarily withdrew from workforce. The WCJ cited a lack of medical evidence that Claimant was totally disabled and Claimant’s lack of effort to return to work despite his ability to do so. The WCJ found no evidence that returning to work would endanger Claimant’s union benefits, so long as he did not work for a business that competed with the union. Further, the WCJ found Claimant was capable of performing the jobs identified in the labor market survey and observed Claimant appeared to be sabotaging his job search by calling potential employers and telling them he was a ‘convicted felon’ with no indication that the crimes were in the past and he has since had a clean record. Claimant testified that he contacted nearly every potential employer identified in the LMS. Regardless, Claimant testified he was not planning on returning to work and would “probably” not accept any of the jobs, even if they were offered to him, because it would affect his Social Security disability and union pension. The purpose of the pension is not to provide benefits to individuals who are capable of gainful employment. The loss of Claimant’s pension is a purely financial calculation and not a valid reason not to return to the workforce. Finally, an employer does not bear the initial burden of proving the nonexistence of a vacancy during the relevant time period. Rather, a claimant may present evidence that during the period in which the employer had a duty to offer a specific job, the employer had a specific job vacancy that it intended to fill that the claimant was capable of performing. The burden then shifts to the employer to rebut the claimant’s evidence. The credible testimony established that Schnoll did not have any specific vacancies within Claimant’s vocational abilities and medical restrictions.
Affirmed
PENSION OFFSETS AND SUBSEQUENT RE-EMPLOYMENT
Bradford County, et al v. Paul PASKO (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: August 14, 2024
Issue:
Whether Employer may claim a pension offset credit pursuant to Section 204(a) of the Act where it would prevent the worker from receiving any wage loss benefits?
Background:
Claimant began working for Employer as a wastewater treatment plant operator in 1993, and he retired after 25 years of service. When he retired, Claimant withdrew a lump sum from his employer-funded pension and began receiving a monthly pension benefit of $1,668.23. After his retirement, and prior to the injury, Claimant returned to work for Employer on a part time, per diem, basis. In June 2020, Claimant injured his back at work. His average weekly wage at the time of that injury was $277.41 per week, with a disability rate of $249.67. Due to the injury, Claimant did not work for nearly a year before he resumed working on a per diem basis in a light-duty position. His receipt of his pension benefits was uninterrupted. Employer asserted an offset. The WCJ determined that the Employer was entitled to a credit against the wage loss benefits it owed Claimant, for the pension benefits Claimant received from March 3, 2020, to February 18, 2021. Claimant appealed to the Workers’ Compensation Appeal Board (Board), and the Board reversed.
Holding:
The Court reviewed the history of the Act and the Offset provisions and applied statutory interpretation principles to its analysis. The offsets all work roughly to ensure that a claimant is made whole by receiving wage loss benefits in an amount no greater than that the claimant could reasonably have expected had the claimant not been injured, relatedly preventing any double payment on the part of an employer. The credits reflect a legislative intent to benefit employers by decreasing their liability for payment of wage loss benefits in certain scenarios, however, the claimant is made whole through the receipt of a combination of wage loss benefits and other benefits of an amount roughly approximating what they expected to earn had they been able to keep working. The Court had to choose between a “literal” reading of the provision, and a “contest-sensitive” approach. The Court did not believe that a literal reading of the pension offset would meet the stated goals of the provision in this case because it would not eliminate double recovery for Claimant’s wage loss, rather, it would eliminate any recovery for his current wage loss. When Claimant retired, Employer would reasonably have expected it would be required to continue paying Claimant’s pension. It always should have reasonably expected to pay, after Claimant retired, both the pension, and additional wages on top of the pension for someone to perform the work. Allowing a credit in this context would not prevent double recovery of the wage loss associated with the work injury, it would prevent any recovery of that wage loss. When Claimant retired, he went back to work expecting to supplement his pension, and reasonably expected that he would earn wages on top of the pension. Allowing the credit prevents Claimant from recovering with respect to a wage loss that had nothing to do with his pension. The Court concluded that Section 204(a) was ambiguous and affirmed the Board. The Court also noted that the “absurdity doctrine” would also prevent using a literal interpretation of the statute here. Section 204(a)’s pension offset is not available where the compensable injury occurs within the context of a retiree’s subsequent, part-time employment with a former employer.
Affirmed.
DISSENTING OPINION BY JUDGE FIZZANO CANNON
The dissent believed that Section 204(a) does not reveal a gap in the legislative scheme that may be treated as an indication of ambiguity and that the literal interpretation was correct. The dissent expressed that the majority abandoned its role and assumed that of the General Assembly in order to address an alleged wrong. Because Section 204(a) is unambiguous, the Majority’s approach was improper.
JUDICIAL DISCRETION – REASONED DECISION
Berks Area Regional Transportation Authority v. Thomas Bennett (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: August 21, 2024
Issue:
Whether the WCJ’s decision was adequately reasoned regarding the descriptions of Claimant’s injuries?
Background:
Employer petitioned for review of the order of the Appeal Board, which affirmed in part, and reversed in part, the order of the WCJ. Claimant filed a claim petition in which he alleged that, on June 12, 2021, he sustained injuries to his left knee, lower back, and right hip while opening and closing a gate within the course and scope of his work as a bus operator for Employer. In his decision, the WCJ credited the testimony of Claimant and Claimant’s expert. The WCJ found that Claimant suffered from a left knee injury, a right hip injury, and a low back injury with radiculopathy as a result of the work injury in this matter. The WCJ granted the claim petition of Claimant, concluding that Claimant sustained work-related injuries to his lower back, right hip, and left knee. The Board affirmed.
Holding:
A WCJ’s decision must provide a summary of the relevant testimony, necessary determinations of credibility, and findings of facts based on the evidence presented. To the extent that the WCJ’s decision lacks sufficient specificity as to the description, extent, and/or scope of the work-related injuries, the WCJ has failed to issue a “reasoned decision” as required by Section 422(a) of the Act and remand is required. The WCJ credited the medical testimony of Claimant’s medical expert and, where not conflicting, the testimony of Employer’s medical expert. This credited medical testimony included diagnoses of a sprain of the lumbar spine, lumbago with sciatica, and a left knee meniscal tear. Despite crediting this evidence, however, the WCJ described Claimant’s left knee and low back injuries in generic terms instead of making findings of specific diagnoses. The WCJ’s injury descriptions are too general and lacking in particularity to constitute a reasoned decision. The Court remanded the matter to the Board with instruction that it be further remanded to the WCJ for additional findings of fact and conclusions of law as to the description, extent, and/or scope of Claimant’s left knee and low back injuries.
Reversed in part, and Remanded.
JUDICIAL DISCRETION
Chester Water Authority v. Charles Swiggett (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 28, 202
Issue:
Whether the WCJ’s finding that Claimant sustained a new or aggravated low back injury was supported by substantial evidence?
Background:
Claimant worked for Employer as a laborer and suffered a low back injury after shoveling snow. In 2018 the WCJ determined that Claimant sustained an aggravation of facet joint pathology at L3-4 and L4-5 and, thus, awarded compensation benefits. Claimant’s benefits were suspended based upon his return to work without loss of earnings in 2017. In 2020, Employer filed a petition to terminate compensation benefits and in 2021, the WCJ granted Employer’s termination petition. Thereafter, Claimant filed a claim petition alleging that on January 20, 2021, he sustained a repetitive low back injury and a reinstatement petition alleging a worsening and a recurrence of the prior condition at that time. The WCJ denied Claimant’s reinstatement petition. However, the WCJ granted the claim petition. The Board affirmed the WCJ’s grant of the claim petition. Employer appealed.
Holding:
The relevant inquiry in a substantial evidence analysis is not whether there is evidence in the record which supports a factual finding contrary to that made by the WCJ, but, rather, whether there is any evidence which supports the WCJ’s factual finding. The record supports the WCJ’s finding that the January 20, 2021, work incident caused an aggravation of Claimant’s pre-existing lumbar spine degenerative disease and lumbar radiculopathy. The WCJ’s finding that Claimant sustained a work-related aggravation of lumbar spine degenerative disease and lumbar radiculopathy is supported by substantial evidence.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
Kevin Bernard v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 13, 2024
Issue:
Whether the retroactive application of Act 111, which enacted the IRE provisions in Section 306(a.3), violates the Pennsylvania Constitution and is an unlawful delegation of legislative authority?
Background:
Claimant sustained an injury and the City accepted injuries to Claimant’s left knee, right hand, face, and teeth. On April 14, 2022, the city filed its Modification Petition alleging that Claimant’s benefits should be modified from total to partial disability based on the results of a March 10, 2022 IRE. The WCJ found that Claimant reached maximum medical improvement and that, in accordance with the Sixth Edition, second printing of the AMA Guides, Claimant had a WBI of 12%. Accordingly, the WCJ granted the City’s Modification Petition. The Board affirmed.
Holding:
Act 111 does not violate the remedies clause in article I, section 11 of the Pennsylvania Constitution. Further, Claimant’s argument that applying the IRE provisions in Act 111 to injuries he sustained prior to Act 111’s effective date deprives Claimant of a vested, constitutional right to wage loss benefits, has been rejected by the court on numerous occasions. The retroactive application of Act 111 does not unconstitutionally deprive Claimant of a vested right. Claimant’s argument that he has suffered a loss of vested rights ignores the plain language of Section 413(a) of the Act, which provides that a WCJ may, at any time, modify, reinstate, suspend, or terminate” an award of benefits upon proof that a claimant’s disability has “increased, decreased, recurred, or has temporarily or finally ceased.” Finally, Act 111 does not represent an unconstitutional delegation of legislative authority. The WCJ did not err in granting the City’s Modification Petition.
Affirmed.
Janice Hines v. Aria Health (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: August 22, 2024
Issue:
Whether it was error to grant a modification of Claimant’s disability status where the IRE reviewer limited the scope of the IRE to address only part of the injury?
Background:
Claimant sustained a work-related injury which Employer accepted as a crush injury to her right hand. By a decision in 2011, the description of Claimant’s injury was expanded to include reflex sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS or CRPS). In January 2015, Claimant underwent an IRE pursuant to former Section 306(a.2) of the Act, which yielded a whole-person impairment rating of less than 50%. Employer subsequently filed a modification petition seeking to convert Claimant’s total disability status to partial disability. Claimant opposed the modification petition and filed review petitions seeking to enlarge the description of her work injury. In 2019, a WCJ denied Employer’s modification petition, concluding that the IRE was invalid under Protz II. The WCJ also found that Claimant’s work injury coupled with her extensive and prolonged use of medications for the injury led to digestive and dental issues. Claimant underwent a new IRE performed pursuant to Act 111. Employer subsequently filed a modification petition based upon this new IRE. WCJ Bowers issued a decision and order granting Employer’s modification petition and changing Claimant’s benefit status from total to partial as of the date of the IRE. The Board affirmed.
Holding:
A physician performing an IRE is not limited by the injury as accepted through the notice of compensation payable or prior workers’ compensation decisions. An IRE physician must apply professional judgment to assess conditions that could be fairly attributable to a compensable injury. A WCJ may reject an IRE that fails to address conditions attributable to that injury. See Duffey; Sicilia. The reviewer considered Claimant’s right hand crush injury and her diagnosis of right lower extremity CRPS when calculating her impairment rating. She may have had the diagnosis, but no current impairment. Also, while the reviewer did not assess Claimant’s dental deterioration or her in-patient colonoscopy preparation, he testified that these conditions would not change Claimant’s impairment rating. Further, Claimant did not mention either condition when Dr. Schwartz asked if she had any other symptoms or complaints. Claimant’s argument that she was not MMI, as her symptoms and examination findings were neither stable nor static had no merit, where they had had been stable for years. The reviewer was aware of Claimant’s treatment and that he took these into account. MMI is not predicated on the elimination of symptoms and/or subjective complaints. Also, MMI can be determined if recovery has reached the stage where symptoms can be expected to remain stable with the passage of time or can be managed with palliative measures that do not alter the underlying impairment substantially, within medical probability.
Affirmed.
PETITION FOR ALLOWANCE OF APPEAL TO THE PA SUPREME COURT FROM THE ORDER OF THE COMMONWEALTH COURT
MEDICAL FEE SCHEDULE
Federated Insurance Co. v. Summit Pharmacy (Bureau of Workers’ Compensation Fee Review Hearing Office)
August 27, 2024
Petition of: Summit Pharmacy
The Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner are:
(1) Did Commonwealth Court exceed its authority when it substituted its judgment for that of the General Assembly, by limiting the authority of the Bureau of Workers’ Compensation to specify which prescription drug fee schedule it may choose to resolve disputes, 34 Pa. Code § 127.131(b), when that function is properly reserved for the legislature and the Bureau of Workers’ Compensation?
(2) By invalidating the Red Book as the standard for determining the “average wholesale price” of pharmaceutical products, did Commonwealth Court err by construing “average wholesale price” according to its common meaning rather than according to its meaning within the pharmaceutical industry?
(3) Did Commonwealth [Court] err by sub silentio invalidating all statutes or regulations in Pennsylvania that base payment for pharmaceuticals on the Red Book, including childhood immunizations and the PACE Program, both of which are also based on Red Book values?
The Petition for Supersedeas and/or Stay Pending Appeal is DENIED.
PENNSYLVANIA LEGISLATIVE REVIEW
As of August 31, 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration, or consideration.
Regular Session 2023-2024
House Bill 760
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.
Subject: Direct Deposit for Workers’ Compensation
This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year. This proposed legislation was presented to the Pennsylvania Bar Association, House of Delegates, at the House meeting on May 10, 2024, and received overwhelming support.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
House Bill 930
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation. Expanding Workers’ Compensation for Permanent Disfigurement
Subject: Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
08/01/2024 – 08/31/2024
WORKERS’ COMPENSATION COVERAGE
Urena v. A&D Freight Logistics, LLC
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2302-21; 2024 WL 3561974
Decided: 07/29/202
Background:
A fatal accident involving decedent Carlos Urena Valverde (Decedent) occurred on March 31, 2017. Decedent owned an LLC and was assigned to transport materials through a container company, which was insured by New Jersey Casualty Insurance Company (NJCIC), and a freight company, which was insured by New Jersey Property Liability Insurance Guarantee Association (NJPLIGA). The LLC was insured by Hartford. Petitioner, the decedent’s wife, filed claim petitions for dependency benefits against the LLC, freight company, container company, and their insurers. Hartford filed an answer claiming the policy was cancelled before the accident and moved to dismiss for lack of coverage. The other insurers disputed employment liability. Hartford presented witnesses ad the court found that Hartford failed to establish that it properly effectuated cancellation of its policy. The court also found all three carriers were equally responsible for providing dependency benefits to the petitioner. Hartford moved for reconsideration and was allowed to reopen discovery and present additional witnesses. After additional testimony, the court entered a supplemental decision and concluded that Hartford had not properly cancelled the policy. The court entered an order denying Hartford’s motion to dismiss for lack of coverage and requiring all the insurers to pay dependency benefits in equal shares.
Holding:
On Appeal, Hartford argued that the evidence established the required elements of cancellation by a preponderance of the evidence, Hartford complied with all requirements of the policy at issue, and the trial court was correct in determining freight was employer of the decedent.
The court stated that with workers’ compensation insurance, “a carrier effectuates a cancellation after providing both notice of cancellation by registered mail to the insured and ‘like notice’ to the Bureau with a certified statement confirming notice was sent to the insured.” The court found that Hartford did not effectively cancel the policy as they did not file a certified statement when they electronically transmitted the data. There was ample evidence in the record to support the court’s decision that that Hartford failed to comply with N.J.S.A. 34:15-81(b).
A special employee relationship exists when: “the employee has made a contract of hire, express or implied, with the special employer; the work being done is essentially that of the special employer; and the special employer has the right to control the details of the work.” Additional factors may be considered, but the most important factor “is whether the borrowing employer had the right to control the special employee’s work.” The court concluded that the decedent was a special employee based on factors that satisfied the three prongs. The court’s decision was supported by ample evidence in the record.
Affirmed.
INTENTIONAL WRONG EXCEPTION
Busby v. Seabrook Bros. & Sons, Inc.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-1925-21; 2024 WL 3648144
Decided: 08/05/2024
Background:
Kyle Busby (Plaintiff) injured his hand while cleaning a commercial mixing machine, which was owned and controlled by Employer, that became activated. A guard had to be removed to clean the machine and the plaintiff was never trained on proper procedures to prevent injury when cleaning the machine. Plaintiff filed a personal injury lawsuit against Employer and alleged that the Employer’s actions created a substantial certainty of harm, that constituted intentional wrongs. The court found that the employer did not engage in deliberate or affirmative acts. The court determined that the accident was due to the failure to provide proper training on how to clean the machine, which was more akin to negligence. It also found no evidence of prior injuries or close calls. The court found that the prongs of the intentional wrong test were not satisfied.
Holding:
On Appeal, Plaintiff argues that he raised material issues of fact regarding the conduct and context prong, that the court did not properly consider his expert report, and that the court considered evidence outside the record. Plaintiff asserts that cleaning without the guard was common practice, and this created a situation that was substantially certain to cause injury. He further argues that an affirmative act is not required to show an intentional wrong when the injury was caused by the absence of a safety guard. The plaintiff also asserted that the Employer’s failure to train on proper procedures when the dangerous machinery is being cleaned created a substantial certainty of injury. He additionally was pressured to work quickly.
The intentional wrong test is satisfied when the two conditions are satisfied: “the employer must know that his actions are substantially certain to result in injury or death to the employee and the resulting injury and the circumstances of its infliction on the worker must be more than a fact of life of industrial employment and plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.” An employer’s intentional wrong has only been found in rare circumstances.
Here, the Court found that the Employer’s failure to train on proper cleaning procedures and failure to have proper procedures in place were reasonably found to be insufficient affirmative acts to establish an intentional wrong. The Court additionally found that consideration of the expert’s report did not require the court to deny summary judgment.
Affirmed.
NEW JERSEY LEGISLATIVE UPDATE
Senate Bill 2822/ A3986
Revises workers’ compensation law to increase contingency attorney fee cap in contingency cases from 20 percent to 25 percent.
Last Action: 8/22/2024 Approved P.L.2024, c.55.
What this means: The existing legislation was amended from a 20 percent limit for attorney fees for workers’ compensation cases to a 25 percent limit. The increase is to account for the increasing complexity of the modern day workers’ compensation attorney and to allow for better representation. There are concerns that this increase will raise the cost of workers’ compensation for employers and small businesses.
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly La
Aug 5, 2024
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
07/1/2024 – 07/31/2024
IMPAIRMENT RATINGS EVALUATIONS – SCOPE
Supreme Court of Pennsylvania – Published Per Curiam Opinion (Evenly Divided Court)
Vincent Sicilia v. Api Roofers Advantage Program (WCAB)
Decided: July 17, 2024
Justice Donohue, in Support of Affirmance of Commonwealth Court
Justice Brobson, in Support of Reversal of Commonwealth Court
Justice Brobson, in Support of Reversal of Commonwealth Court
Issue:
Whether, under Duffey, the IRE doctor was permitted to consider the spondylolisthesis diagnosis during the IRE when calculating his impairment rating, such that the Commonwealth Court did not expand that holding?
Background:
Claimant was employed by Employer when he sustained work-related injuries after falling from a ladder. Employer issued an NCP accepting Claimant’s injuries as a lumbar strain and left knee contusion and, in 2003, a WCJ approved a stipulation by the parties that expanded the scope of Claimant’s work-related injury in the NCP to include chronic pain syndrome and chronic adjustment disorder with anxiety and depression. In 2007, Claimant underwent back surgery to alleviate the pain associated with his conditions and, during the next several years, the parties engaged in protracted litigation over Employer’s liability for medical expenses due to the surgery. In 2011, a WCJ determined that Claimant’s surgical procedures were work-related. The instant matter began in August of 2019 when, upon Employer’s request, Dr. Daisy Rodriguez conducted an IRE and found that Claimant had reached maximum medical improvement on the NCP-defined injuries as of September of 2017, with a whole person impairment rating of 25%. Based on the IRE report, Employer filed a petition to modify benefits. Dr. Rodriguez subsequently prepared an addendum report at Employer’s request, in which she arrived at a 45% impairment rating when the additional spinal diagnoses were included in her analysis under the AMA Guide. Dr. Rodriguez was deposed and opined the spondylolisthesis diagnosis addressed in the Addendum IRE Report was causally related to the injury. The WCJ found Dr. Rodriguez credible regarding an impairment rating of 25% in the original IRE Report. However, the WCJ determined that her testimony that the work-related injury includes additional diagnoses was not credible and rejected Dr. Rodriguez’s evaluation of spondylolisthesis because it was not listed in the NCP nor in any of the prior decisions that described defined injuries. Accordingly, the WCJ granted Employer’s petition to modify benefits on that basis. On appeal, the WCAB distinguished Duffey on the basis that Dr. Rodriguez had “clearly recognized” that the spondylolisthesis diagnosis that informed the 45% impairment rating was distinct from the “accepted injury,” which is why she calculated different impairments, and affirmed the WCJ. The Commonwealth Court reversed the WCAB’s decision.
Holding in Favor of Affirmance:
The affirmance agreed with the Commonwealth Court’s decision insofar as it held that the IRE reviewer was permitted under Duffey v. Workers’ Compensation Appeal Board (Trola-dyne, Inc.) to consider additional diagnoses as impairments that are due to compensable injuries. The Commonwealth Court’s decision faithfully applied Duffey in that regard; it did not expand it. The affirmance also agreed with the Commonwealth Court that the WCJ did not conduct a genuine credibility assessment of the evidence provided by the IRE doctor regarding those additional diagnoses. However, the Commonwealth Court should not have reversed the WCJ’s decision outright under these circumstances. Instead, the Commonwealth Court should have remanded this matter to the WCJ for an actual credibility assessment. Had the Court reached a consensus on that point, the affirmance would have also directed the Commonwealth Court to remand this matter to the WCJ for a credibility assessment. It was Dr. Rodriguez’s professional medical opinion that Claimant’s spondylolisthesis was ‘due to’ the NCP-defined workplace injuries. As this Court explained in Duffey, while the NCP defines the compensable injury, that “simply does not determine the range of impairments which may be ‘due to’ such injury.” Under 77 P.S. § 511.3(1), the “physician-evaluator must exercise professional judgment to render appropriate decisions concerning both causality and apportionment of identified impairments. That is precisely what occurred here. The WCJ rejected the spondylolisthesis diagnosis as an impairment only because it was not listed in the NCP and prior decisions describing the NCP not because the Addendum IRE Report and the related testimony suggested this. Thus, Dr. Rodriguez did not manufacture a new workplace injury. She examined the medical records and determined that the NCP-defined injuries included spondylolisthesis. The Commonwealth Court correctly held that the WCJ rejected the higher impairment rating evidence based on “a misapprehension of the discretion accorded an IRE physician-evaluator” under our interpretation of the Workers’ Compensation Act in Duffey.
Holding 1 in Favor of Reversal:
The Duffey Court concluded that the legislature intended to give IRE physicians the authority to decide whether the claimant has any additional compensable injuries beyond those listed in the NCP—and then to rate those additional injuries. Though nothing in the Act authorizes physicians to sit as junior-varsity WCJs, the Duffey majority created this result by conflating the concepts of “injury” and “impairment.” We should accept Employer’s invitation to overturn Duffey today. Put simply, Duffey made two critical mistakes. It took away the authority of WCJs to define the claimant’s compensable injury. And it gave physician evaluators permission to make a de novo assessment of the claimant’s “compensable injury” at every single IRE. Remedying the former error without addressing the latter is only a partial fix. While Justice Brobson’s approach is better than the status quo that Duffey wrought, the disruptive consequences arising from Duffey’s expansion of the physician-evaluator’s proper scope would persist.
Holding 2 in Favor of Reversal:
While Duffey may have stretched the bounds of the IRE physician-evaluator’s authority by requiring her to consider whether certain conditions—i.e., conditions not included in the description of the accepted work-related injury but reported by the claimant at the time of the IRE—were fairly attributable to the compensable injury and, if so, to include those conditions in her determination of the claimant’s whole-person impairment rating, Duffey was never intended to eliminate the WCJ’s exclusive role to determine the nature and extent of a claimant’s work-related injury through her determinations of credibility and evidentiary weight. Rather, Duffey was meant to apply only under very unique circumstances: where, during the IRE proceedings, the claimant sought to litigate before the WCJ the extent of his work-related injury and, in doing so, introduced his own medical evidence to establish that a material mistake of fact or law was made at the time the NTCP/NCP was issued or that the scope of the work-related injury had changed. Here, unlike in Duffey, Claimant did not produce any medical evidence to establish that, in addition to those diagnoses included within the accepted work-related injury, he also sustained a lumbar disc protrusion or spondylolisthesis with lumbar radiculopathy as a result of the August 25, 1999, work-related incident. Claimant sought to rely exclusively on Dr. Rodriguez’s testimony and opinions that those diagnoses were causally related to the work-related incident and that, when those diagnoses were included in the IRE determination, Claimant had a whole-person impairment rating of 45%. The WCJ, however, rejected Dr. Rodriguez’s testimony and opinions in that regard on the basis that Claimant’s work-related injury had been described in numerous prior decisions and that such description had never been amended or expanded to include those additional diagnoses. Making this credibility determination and rejecting Dr. Rodriguez’s testimony and opinions was certainly within the WCJ’s purview as the factfinder. The Commonwealth Court impermissibly expanded this Court’s holding in Duffey so as to usurp the WCJ’s authority to determine the nature and extent of a compensable injury and substituted its assessment of the credibility of the witnesses for that of the WCJ when it reversed the Board’s decision and remanded the matter for the reinstatement of Claimant’s total disability benefits.
Affirmed – The IRE reviewer is permitted under Duffey v. Workers’ Compensation Appeal Board (Trola-dyne, Inc.) to consider additional diagnoses as impairments that are due to compensable injuries.
EXCLUSIVITY
Elite Care, Rx v. Premier Comp Solutions, LLC, et al.
Supreme Court of Pennsylvania – Published Per Curiam (Evenly divided Court)
Decided: July 17, 2024
Justice Dougherty, in Support of Affirmance of Superior Court
Justice Wecht, in Support of Reversal of Superior Court
Issue:
Whether the trial court lacked jurisdiction over Elite Care’s civil action?
Background:
Appellant Insurers refused to make payments to Elite Care totaling $548,035.28 in prescriptions for 110 injured employees on the basis that Elite Care was not a provider under the Act. An attorney from Premier Comp Solutions, told Elite Care that if it disagreed with Insurers’ decision, its exclusive remedy is to file an Application for Fee Review with the Pennsylvania Workers’ Compensation Bureau. Elite Care attempted to confirm its provider status, and receive payment, by filing fee review petitions for each patient, as Insurers demanded. But when some of those fee review determinations started to go in Elite Care’s favor, Insurers then appealed these decisions to a Hearing Officer and argued that the Fee Review process lacked jurisdiction over this issue of whether Elite Care was an agent of these Providers. Those Hearing Officers authored Opinions and Orders finding that the Fee Review process lacked jurisdiction over this issue and specifically advising that Elite Care may wish to pursue other remedies, which may be available outside of the fee review process. Rather than appealing to the Commonwealth Court, Elite Care again did as instructed and filed the civil action at issue, seeking a declaration that it is a provider under the Act and also alleging fraud, civil conspiracy, and unjust enrichment. In response, Insurers filed preliminary objections, alleging, inter alia, the trial court lacked subject-matter jurisdiction because Elite Care was required to seek payment through the workers’ compensation system pursuant to the Act’s exclusivity provision, 77 P.S. §481. The trial court overruled Insurers’ preliminary objections and the Superior Court affirmed.
Holding in Favor of Affirmance:
The Superior court misinterpreted Subsection 306(f.1)(5) of the Workers’ Compensation Act (the Act), 77 P.S. § 531(5)] and created a state of affairs that plainly conflicts with the Act’s exclusive remedy provision. However, half of the Court would affirm the decision below and allow the civil action filed by Elite Care, RX, LLC to proceed based on the doctrine of judicial estoppel. However, generally, and going forward, the affirmance agreed trial courts lack jurisdiction over civil actions seeking payment for workers’ compensation benefits for the reasons set forth in the Opinion in Support of Reversal, concluded that judicial estoppel bars Insurers from advancing that argument in this particular case. Here, Insurers have assumed inconsistent positions. First, Insurers told Elite Care it had to utilize the fee petition process within the Workers’ Compensation Bureau. Then, once Elite Care started succeeding before that body, Insurers appealed and argued the fee review hearing officers lacked jurisdiction to determine provider status. After Insurers’ argument persuaded the hearing officers to dismiss Elite Care’s fee petitions, Elite Care filed a civil suit. During the civil action, Insurers again switched their position and argued to the trial court that it lacked jurisdiction because provider status must be determined through the workers’ compensation system. Insurers admit their position has changed. Although the Armour Pharmacy case may have justified Insurers’ final switch, it does not explain their earlier conduct. Instead, it seems apparent that Insurers continuously changed course only to avoid liability. Thus, rather than reward Insurers for their gamesmanship, the affirming half of the court would hold Insurers are judicially estopped from challenging the trial court’s jurisdiction over Elite Care’s civil action.
Holding in Favor of Reversal:
The decision below plainly conflicts with the Workers’ Compensation Act’s exclusive remedy provision, which this Court has held “extends to [the] workers’ compensation insurance carrier, protecting the insurer to the full extent of the employer’s protection.” Because the employer/insurer’s obligation to pay the claimant’s medical expenses arises from the Workers’ Compensation Act in the first place, the workers’ compensation system is the exclusive forum for resolving both payment disputes and alleged mismanagement of workers’ compensation claims. The Superior Court’s rationale for departing from this well-established rule is unpersuasive. This Court need not adopt Armour Pharmacy’s reasoning in toto to conclude that the Superior Court erred below. It is enough to say that Armour Pharmacy was correct in abandoning the notion that provider status “is a question of liability, which is beyond the scope of a fee review and must be decided by a Workers’ Compensation Judge.” Whether challenges to an entity’s provider status should be resolved in the first or the second level of the fee review process is irrelevant. It is enough for our purposes today to say that nothing in the Act prevents the issue of a putative provider’s standing from being resolved in fee review. The Superior Court therefore erred in holding that the Act “does not provide for an administrative proceeding by or against putative providers or their billing agents in the Bureau.” The decision below misinterpreted Subsection 306(f.1)(5) and created a state of affairs that plainly conflicts with the Act’s exclusive remedy provision. Elite Care’s sole remedy lies in the administrative realm. The lower courts therefore erred in allowing Elite Care’s civil suit to proceed.
Affirmed – based upon an evenly divided court.
IMPAIRMENT RATING EVALUATIONS
Douglas Bellamy v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 22, 2024
Issues:
(1) Whether the WCJ erred in reinstating Claimant’s total disability benefits as of the date of his Reinstatement Petition, rather than the initial December 16, 2014 modification date; (2) Whether the WCJ erred in applying Act 111 to an injury occurring before its effective date; and (3) Whether Act 111 constitutes an unconstitutional delegation of the General Assembly’s legislative authority?
Background:
In 2009, Claimant suffered a work-related injury to his neck when he tripped and fell. Nevertheless, he continued working until January 7, 2010, when, in the course of his employment, he fell into a sewer hole. On May 6, 2015, the WCJ granted Employer’s Modification Petition to reduce Claimant’s indemnity benefits to partial disability as of December 16, 2014, after an IRE of Claimant found his whole-person impairment rating to be less than 50%. On May 13, 2021, Claimant filed a Reinstatement Petition seeking reinstatement of total disability benefits and status based upon the Protz I and II decisions. Additionally, following a 2022 IRE, Employer filed a Modification Petition seeking to have Claimant’s status and benefits modified to partial disability once again, because Claimant’s whole-person impairment rating was found to be 5%. The WCJ granted Employer’s Modification Petition reducing Claimant’s benefits to partial disability as of September 2, 2022 and ongoing.
Holding:
However, these issues were easily disposed of by the Court, which has rejected identical arguments in the past. First, the WCJ correctly reinstated total disability benefits as of the date of the filing of Claimant’s Reinstatement Petition, relying on this Court’s decision in Whitfield. A claimant who litigates a modification petition based on an IRE performed under Act 57 is entitled to seek reinstatement to total disability benefits even though the claimant did not challenge the constitutionality of Section 306(a.2) during that litigation. However, claimant bears the burden of proving continuing disability, which, if met, only entitles a claimant to reinstatement as of the date the reinstatement petition was filed. The WCJ did not err by reinstating Claimant’s benefits as of the date of his Reinstatement Petition, rather than his original modification date. Second, the Court’s decision in Rose Corp. makes clear that Act 111 applies retroactively to previous weeks of compensation paid. Third, Act 111 does not violate the non-delegation doctrine.
Affirmed.
Michelle D. Epps v. City Of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 8, 2024
Issue:
Whether Act 111 is unconstitutional because the claimant’s 2010 injury occurred prior to its October 2018 effective date and it retroactively negates the claimant’s previously vested rights in continuing benefits?
Background:
Claimant sustained a disabling work-related injury to her left knee on January 26, 2010. On December 16, 2021, Claimant underwent an IRE which determined that Claimant had reached maximum medical improvement (MMI) and had an impairment rating of 1%. Employer filed a modification petition based on the IRE. The WCJ granted the petition.
Holding:
This Court has concluded that the adjustment in Act 111 cured the infirmity in the prior IRE provisions because the legislature may adopt as its own a particular set of standards which are already in existence at the time of adoption without violating non-delegation principles. As such, Claimant’s constitutional challenges to Act 111 are meritless.
Affirmed.
JUDICIAL DISCRETION – REVIEWING STIPULATIONS
VNA Of St. Luke’s Home Health/Hospice v. Elizabeth Ortiz (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: July 23, 2024
Issue:
Whether Employer’s request to set aside the stipulation should have been granted because the nature of Claimant’s work injury was materially incorrect?
Background:
Claimant initially filed a claim for a November 2017 work injury in the nature of a left shoulder strain, therein asserting that she fell while attempting to sit on a chair and injured her left shoulder. In May 2018, Employer issued an NTCP accepting a left shoulder strain. In June 2019, Claimant filed a claim petition seeking to expand the work injury and asserting a left rotator cuff tear and biceps tendon injury. In September 2019, the WCJ circulated an order adopting a stipulation of facts wherein the parties agreed that the work injury had caused a left shoulder injury that required a rotator cuff repair and a biceps tenodesis. Employer filed two modification petitions asserting that Claimant had failed to respond in good faith to modified-duty job offers. While litigating the modification petitions, medical records newly disclosed to Employer demonstrated that the left rotator cuff tear and biceps injury preexisted the November 2017 work accident. In fact, Claimant repeatedly falsely denied having suffered, and being treated for, the stipulated injuries before the work accident. Consequently, Employer sought to set aside the stipulation of facts attributing those injuries to the work accident. The WCJ granted Employer’s modification petitions, but disability benefits were reinstated effective the date Claimant underwent additional work-related left shoulder surgery. The WCJ denied Employer’s request to set aside the September 2019 stipulation of facts and concluded that Claimant’s litigation costs were not reimbursable. The Board affirmed.
Holdings:
As found by the WCJ, Claimant’s denials were false. The Court held that this case boiled down to how much an employer is expected to do by way of investigation and within what timeframe when a claimant misrepresents her condition and/or the existence of prior injuries. Good faith on the part of both parties is necessary to fulfill and advance the humanitarian purpose of the Act. Employer became aware that Claimant had a medically significant preexisting injury to the same area and acted on that knowledge. Given the time that ensued between Employer’s March 2021 receipt of documentation and Dr. Rubenstein’s second deposition in July 2021, we conclude that Employer did not unduly delay in making its request to set aside the stipulation. To the extent to which Employer should have conducted a more vigorous investigation before entering the stipulation, the Court noted that Claimant time and again misled Employer, her own surgeon, and the workers’ compensation tribunal as to pre-existing left shoulder issues. The Court felt it noteworthy that Employer was not seeking to set aside its original acceptance of Claimant’s work injury. It was disingenuous for Claimant to attempt shifting the blame for her repeated misrepresentations when such falsification had the practical effect of complicating the proceedings. Claimant was not successful in defending against the modification petitions. Claimant essentially accrued litigation costs solely in defending the modification petitions. Consequently, she did not incur litigation costs on any issue on which she might be deemed to have prevailed. The Court affirmed the Board’s order granting Employer’s modification petitions and denying Claimant’s request for litigation cost reimbursement; and reversed the Board’s order denying Employer’s request to set aside the stipulation of facts.
Affirmed in part, Reversed, in part.
JUDICAL DISCRETION – HEARINGS
Becky A. Tarawallie v. Magee Memorial Hospital (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: July 22, 2024
Issues:
Whether Claimant’s counsel failed to submit evidence; the WCJ violated her constitutional right to a fair hearing by rendering a decision without evidence; and the WCJ erred in allowing Employer’s surveillance video?
Background:
Claimant worked as a Certified Nurse Assistant (CNA) for Employer. On November 4, 2020, Claimant slipped and fell on blue cheese dressing that had spilled on the floor at her workplace. Claimant filed a Claim Petition under the Act alleging she sustained a low back strain, disc herniations, and a right hip strain because of her fall. Employer issued a Temporary Notice of Compensation Payable (NCP) and then an Amended NCP acknowledging Claimant sustained a work injury in the form of right upper arm and right hip contusions. In January 2021, Employer issued a Notice of Workers’ Compensation Denial (Denial), a Notice Stopping Temporary Compensation (NSTC), and a medical-only NCP. In late 2021, Employer filed a Termination Petition alleging Claimant was fully recovered as of December 1, 2021. The WCJ concluded Claimant had fully recovered from the work injury. Claimant appealed to the Board, and the Board affirmed.
Holding:
In a Termination Petition, the employer bears the burden of establishing the work injury has fully ceased. In a case where the claimant complains of continued pain, an employer meets this burden when its medical expert unequivocally testifies the claimant is fully recovered, the claimant can return to work without restrictions, and there are no objective findings which either substantiate the claims of pain or connect them to the work injury. The WCJ found Claimant did not sustain her burden of establishing a continuing injury entitling her to further indemnity benefits and there was substantial evidence to support this finding. Further, Employer’s expert testified that his opinion, within a reasonable degree of medical certainty, was Claimant had fully recovered as of the date of the IME and could return to work as a CNA without restrictions. Based on his “objectively normal physical examination” of Claimant, he opined Claimant had fully recovered from her injury. The WCJ considered this evidence and found Employer’s expert credible and convincing. Further, Claimant generally challenges the video surveillance footage. She does not argue it was inadmissible but argues the WCJ did not afford it the correct weight. Determinations of evidentiary weight are within the WCJ’s authority. Further, regarding Claimant’s constitutional challenges to the WCJ Decision, Claimant had the opportunity to testify and present evidence at multiple hearings before the WCJ. Claimant did not establish the WCJ precluded her from doing so. Therefore, Claimant failed to establish her constitutional rights were violated in any way. Finally, the effective assistance of counsel is not constitutionally mandated in the workers’ compensation context. Claimant failed to establish her counsel’s failure to submit certain evidence created manifest injustice, deprived her of the only means to meet her burden of proof, or otherwise rose to the level of just cause necessary to merit a rehearing. For the foregoing reasons, the WCJ’s findings are supported by substantial evidence, he committed no error of law or violation of Claimant’s constitutional rights, and the Board properly affirmed the WCJ Decision.
Affirmed.
Janelle Newsome v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 15, 2024
Issue:
Whether the Board erred in affirming the WCJ’s decision to grant Employer’s modification/review petition when the WCJ capriciously disregarded critical and undisputed facts about the amount of the subrogation lien; and whether the Board erred in affirming the WCJ’s decision to grant Employer’s modification/review petition when the WCJ failed to apply equitable principles?
Background:
Claimant petitions for review of the decision of the Workers’ Compensation (WC) Appeal Board (Board) that affirmed the decision of a Workers’ Compensation Judge (WCJ) granting the modification petition and review petition (modification/review petition) filed by the City of Philadelphia (Employer). Claimant was injured in 2016 while she was employed as a police officer with Employer when a construction sign hit Claimant on the head. Claimant filed a third-party lawsuit against the contractors responsible for the construction site where the sign that struck Claimant was stored, which resulted in a settlement in May 2020, in the amount of $675,000. The WCJ found that Employer has a net subrogation lien of $45,535.73. The WCJ directed Claimant to release from escrow by Attorney Hartshorn the amount of $14,098.77, and to further pay Employer $31,431.71, for a total of $45,530.48 as satisfaction of the net subrogation lien. The WCJ concluded that Employer met its burden and granted the modification/review petition. Claimant appealed to the Board, which affirmed.
Holding:
The WCJ is not required to accept even uncontradicted testimony. Where there is substantial evidence to support an agency’s factual findings, and those findings in turn support conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence. The Court rejected Claimant’s argument that the WCJ capriciously disregarded the testimony as to the amount of the subrogation lien. The WCJ summarized in detail this testimony, as well as documentary evidence regarding the settlement of Claimant’s third-party lawsuit. Consideration and rejection of testimony, which is what occurred here, does not constitute capricious disregard. The Court also rejected Claimant’s argument that her subrogation lien should be limited by equitable considerations, when she relied on an incorrect figure provided by Claims Adjuster. There is no dispute that Employer here made a unilateral mistake in its initial calculation of the subrogation lien, but there is also no evidence of fraud, duress, or bad faith.
Affirmed.
Amazon.Com Services, LLC v. Melissa A. Snyder, et al. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 2, 2024
Issue:
Whether the WCJ capriciously disregarded substantial competent evidence and relied on legally incompetent medical testimony regarding causation?
Background:
Claimant worked for Employer as a fulfillment center picker. While lifting a tote in the course of her job duties, she experienced a sharp pain in her right shoulder. She immediately reported this to her supervisor. Claimant returned to work with restrictions for one day, December 27, 2020, but she did not return because she did not want to violate the handbook for taking medications while in the building. Claimant has not worked since then. Claimant filed a claim petition alleging that she sustained a work-related injury on November 19, 2020, in the nature of a right rotator cuff tear and right shoulder strain/sprain. The next day, Employer issued a Notice of Temporary Compensation Payable (NTCP), acknowledging that Claimant sustained a work injury on November 19, 2020, in the nature of “multiple body parts strain or tear.” On February 12, 2021, Employer issued an amended NTCP that did not change the description of the injury but indicated that Claimant’s injury was medical only. A few days later, Employer issued a Notice Stopping Temporary Compensation and a Notice of Workers’ Compensation Denial, asserting that Claimant did not sustain a work-related injury but rather aggravated a preexisting condition. The WCJ granted Claimant’s claim petition. Employer appealed to the Board and the Board affirmed.
Holding:
The WCJ’s findings are supported by substantial evidence of record. The WCJ did not capriciously ignore relevant competent evidence in rendering his decision. Rather, the WCJ assessed the conflicting medical testimony and found Claimant’s medical witnesses to be more credible regarding causation. Further, the competency of evidence is a question of law fully subject to appellate review. A medical expert’s opinion is not rendered incompetent unless it is solely based on inaccurate or false information. The opinion of a medical expert must be viewed as a whole, and even inaccurate information will not render the opinion incompetent unless it is dependent on those inaccuracies. The fact that a medical expert does not have all of a claimant’s medical records goes to the weight given the expert’s testimony, not its competency. Employer’s argument that Claimant’s medical experts rendered incompetent opinions is without merit. First, the medical expert was aware of Claimant’s pre-existing injury, and he reviewed the pre-injury office note. His opinion was not predicated on his ignorance about Claimant’s 2019 injury. Accordingly, the medical opinions were not based solely on inaccurate or false information. The WCJ did not err in granting Claimant’s claim petition and denying Employer’s joinder petition. The WCJ’s findings were supported by substantial evidence and were not the result of capriciously disregarding substantial evidence. Claimant’s expert medical testimony was legally competent, and thus, the WCJ acted within his discretion in weighing the testimony.
Affirmed.
Timothy J. Perkins v. Consolidated Pa Coal, et al. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 17, 2024
Issue:
Whether the WCJ’s decision is supported by substantial, competent evidence?
Background:
Claimant worked as a coal miner for Employer when he sustained a work injury to his left foot on February 2, 2018. Employer issued a Notice of Compensation Payable (NCP) accepting liability for the work injury, which it described as a crushing injury to the left foot. Claimant’s third and fourth toes and part of his second toe were amputated the day he sustained the work injury. Employer suspended Claimant’s wage loss benefits on October 15, 2018, when Claimant returned to work in a light-duty capacity. Claimant suffered a recurrence of his work injury on October 19, 2018, at which time Employer reinstated Claimant’s wage loss benefits. Employer suspended Claimant’s wage loss benefits a second time after Claimant returned to work on January 14, 2019. Claimant’s work injury recurred on June 1, 2019, resulting in a second reinstatement of wage loss benefits. Claimant underwent an IME which opined that Claimant’s injury had resolved into a specific loss when his toes were amputated on February 2, 2018. Employer further alleged that, because Claimant had not suffered any disability separate and apart from the specific loss, he was no longer entitled to disability benefits. The WCJ concluded that Employer has met its burden of proving that Claimant’s injury has resolved to the loss of the third and fourth toes and half of the second toe of the left foot as of October 13, 2020. Consequently, the WCJ determined that Claimant was entitled to 40 weeks of specific loss benefits, with a credit to Employer for benefits paid after October 13, 2020. The WCJ noted that he credited Claimant’s testimony in part but rejected it to the extent it was offered to prove that he has knee and hip problems that are related to the work injury, or that there are injuries separate and apart from the specific loss, as these are not a separate injury to another body part but are a consequence of the specific loss. Claimant appealed to the Board, which affirmed.
Holding:
An employer seeking to modify a claimant’s benefits on the ground that the claimant’s disability has changed carries the burden of proving that change by way of medical evidence. If the employer seeks modification to establish a specific loss, it must show that the injured party has suffered the permanent loss of use of the injured member for all practical intents and purposes. While medical evidence is necessary, the claimant’s testimony and the WCJ’s own observations are relevant and may constitute further support of a finding of specific loss. Under the schedule of compensation for specific losses provided in Section 306(c) of the Act, such losses result in a total payment equal to 2/3 of 40 weeks of Claimant’s wages. On appeal, Claimant did not dispute the WCJ’s determinations regarding his third or fourth toes but argues only that there is no medical evidence to support the conclusion that he permanently lost the use of one half of his second toe. As stated above, a claimant’s own testimony can lend support to a factfinder’s conclusion that an injury has resolved into a specific loss. Thus, we see no error in the WCJ’s conclusion. The WCJ’s conclusion of the functional loss of one half of Claimant’s second toe was not the product of an improper medical determination. Rather, it is the logical result of the WCJ’s acceptance of Claimant’s own testimony. As explained above, the WCJ is free to consider a claimant’s fact testimony when reaching the conclusion that a specific loss has occurred. Furthermore, the crediting of a medical witness’s testimony does not commit a WCJ to an adoption of that witness’s statements in their entirety.
Affirmed.
COMPROMISE AND RELESE AGREEMENT
Deborah J. Clarius v. Rite Aid Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 19, 2024
Issue:
Whether the C & R bars and settles the claimant’s claim regarding her 2018 left knee injury?
Background:
Represented by counsel, Claimant entered into a Compromise and Release (C & R) under the Workers’ Compensation Act with Employer on February 6, 2020. In September 2022, Claimant filed a Review Medical Petition alleging medical bills for a 2018 left knee injury remained unpaid. Claimant alleges two separate injuries with Employer: a 2018 left knee injury and a 2019 right knee injury. She argued the C & R applied to the 2019 right knee injury only. Further, Claimant alleges her counsel and the insurance companies involved were different for each injury. The WCJ dismissed Claimant’s Review Medical Petition based on his finding the C & R prevented Claimant from pursuing any additional claims against Employer. The Board affirmed.
Holding:
Section 449 of the Act governs C & R agreements in workers’ compensation claims, and it provides a C & R is not valid and binding until approved by a WCJ. A WCJ is not to approve a C & R without first determining whether a claimant understands its full legal significance. It is well established that once approved, a valid C & R agreement is final, conclusive, and binding on the parties. Courts may rescind a C & R agreement based on a clear showing of fraud, deception, duress, or mutual mistake. The test to set aside a C & R agreement on the basis of mutual mistake is even more stringent. The party seeking to set aside the agreement must prove both parties were mistaken as to a present, material fact that existed at the time the C & R agreement was executed. Evidence to demonstrate a mutual mistake must be clear, precise, and definitive. The WCJ explained to Claimant that her only role was to make sure Claimant understood the legal significance of what she was entering into by signing the C & R agreement. The WCJ then asked Claimant whether she understood, and Claimant responded: “Yes, I do.” In the present matter, the WCJ pointed to paragraph four of the C & R which stated it “resolve[d] all claims” including those claims “which Claimant may have sustained while working for Employer.” Given the lack of evidence in the record to support her assertions, there was no way to determine Employer’s intent. Claimant failed to offer any support for her argument based upon mutual mistake of fact at the time she and Employer executed the C & R. The WCJ’s findings are supported by substantial evidence, the WCJ committed no error of law or violation of Claimant’s constitutional rights, and the Board properly affirmed the WCJ Decision.
Affirmed.
RES JUDICATA AND COLLATERAL ESTOPPEL
Jesse R. May v. Dana Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 9, 2024
Issue:
Whether the Board erred in affirming the WCJ’s decision that this matter was barred by principles of res judicata and collateral estoppel?
Background:
Claimant sustained four work-related injuries: on January 29, 1990, September 15, 1990, October 8, 1993, and March 11, 1999. The nature and extent of those injuries was not at issue. In 2003, with the assistance of counsel, Claimant executed four compromise and release agreements (C&R Agreements). Claimant agreed to resolve wage loss benefits for each work-related injury, and Claimant reserved the right to receive continuing payments from Employer for medical expenses for each injury except for the 1993 injury. In 2018, Claimant filed several petitions, asserting that Employer had failed to pay certain medical expenses, generally challenging the validity of the C&R Agreements, but specifically asserting that Employer had fraudulently induced Claimant into the agreement ending his medical benefits for the 1993 injury. The WCJ denied the petitions, finding no evidence of fraud and finding further that Claimant fully understood the legal significance of the C&R Agreements. The Board and Commonwealth Court affirmed. Claimant did not seek permission to appeal that decision to the PA Supreme Court, but rather sought a rehearing with the Board, asserting newly discovered evidence including a statement from Employer that purported to acknowledge its ongoing obligation to pay medical expenses related to the 1993 injury. The Board denied a rehearing and Claimant again appealed to the Commonwealth Court, which affirmed. This current matter arose in April 2022, when Claimant again filed several petitions challenging the validity of the C&R Agreements. Employer filed a motion to dismiss asserting that Claimant’s claim had been previously litigated and decided. The WCJ granted the Employer’s motion. The Board affirmed.
Holding:
Claimant asserted that res judicata and collateral estoppel did not apply because Employer concealed evidence from Claimant, which prevented him from fully and fairly litigating the validity of the Agreements. According to Claimant, the First Hearing Filing clearly states Employer’s responsibility for ongoing medical payments related to his 1993 injury. The elements of both res judicata and collateral estoppel have been met. Further, the Claimant was not deprived of a full and fair opportunity to litigate the nature and extent of his work-related injuries and the validity of the C&R Agreements. Claimant does not meaningfully dispute that he has previously litigated, to final resolution, the validity of the C&R Agreements with Employer. Rather, Claimant suggests that he has uncovered new evidence, deceptively and fraudulently concealed by Employer, that should alter our analysis of his claim. An approved compromise and release agreement can be set aside upon a clear showing of fraud, deception, duress, or mutual mistake. Here, the WCJ reviewed Claimant’s evidence and, after thoughtful consideration, determined that it has absolutely no probative value on the question of whether Claimant was directly or indirectly defrauded into signing the settlement agreements. The Commonwealth Court agreed.
Affirmed.
Kenneth P. Marinack v. City of Pittsburgh (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: July 12, 2024
Issue:
Whether the WCJ Correctly Precluded Evidence of Additional Injuries and Reinstated Benefits?
Background:
Claimant was injured on May 21, 2004, when he fell in a stairwell while pulling down a ceiling in a burning building. Employer issued a Notice of Compensation Payable (NCP) describing the accepted injury as a left shoulder rotator cuff tear and an aggravation of degenerative disc disease in the low back. In an earlier proceeding the WCJ denied Claimant’s review petition, as he concluded that Claimant presented insufficient evidence to warrant the further amendment of the injury description. The WCJ also held that because Claimant stated that he was engaged in self-employment projects but did not provide Employer with adequate information to ascertain his earnings, suspension of Claimant’s benefits was appropriate.
Holding:
Claimant challenges the Board’s application of technical res judicata to his Reinstatement Petition and maintains that he is entitled to a reinstatement of his benefits as of March 17, 2011, the date he underwent surgery to alleviate his worsening work-related condition. While the alleged date of onset of Claimant’s worsening condition necessitating the March 2011 back surgery was not adjudicated in the previous litigation, given that Claimant was well aware of the worsening of his low back injury during the prior proceeding, technical res judicata bars his claim of a worsening condition, as it was a matter that should have been litigated in the earlier proceeding. Reinstatement of wage loss benefits in this circumstance was in error. Claimant did not allege that he was entitled to a reinstatement as he would now present adequate and credible information as to self-employment earnings so as to cure his suspension. He never asserted that his “suspended” benefits should be “reinstated” due to the return of the LIBC forms. Similarly, Claimant never argued that the return of the LIBC-760 or his testimony “cured” the prior basis of suspension. Claimant’s benefits were not in a suspension status pursuant to any LIBC-762 (“Notice of Suspension for Failure to Return LIBC-760”). Rather, the first WCJ suspended Claimant’s benefits because he did not believe Claimant’s testimony that he only earned $1,500 from May 2009 to December 2009. Based on all the evidence, he thought Claimant failed to tell the truth about earning only $1,500 during that period, and that in those circumstances where Claimant’s earnings cannot be determined, a suspension was justified. Simply returning a new LIBC-760 to Employer on November 20, 2018, nine years later, which contained the same exact information that WCJ Bloom had previously rejected as not credible, did not cure anything. Thus, the provisions of the Act cited by the Board in support of the original remand – which require reinstatement upon return of the LIBC-760, without further analysis as to the credibility of the averments therein – were inapplicable. Additionally, Claimant never raised this as a basis for seeking reinstatement of benefits. The Court reversed the order of the Board, and reinstated WCJ Crilley’s June 12, 2019 decision denying Claimant’s reinstatement petition.
Reversed
APPEALS – TIMELINESS
Peter Oldfield v. Popcorn Alley, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: July 2, 2024
Issue:
Whether the appeal should be quashed as untimely?
Background:
On May 28, 2021, Claimant filed a claim petition alleging that he sustained a work injury. The WCJ circulated a decision on August 10, 2022, denying and dismissing Claimant’s claim petitions. Claimant filed his appeal with the Board on August 31, 2022, 21 days after the WCJ circulated his decision. Employer filed a Motion to Quash Claimant’s Appeal, arguing that Claimant’s appeal was untimely. The Board granted Employer’s Motion to Quash.
Holding:
A late appeal (nunc pro tunc) will be allowed where the appeal was untimely filed due to fraud or a breakdown in the administrative process. Nunc pro tunc relief is also appropriate where an appeal is untimely due to non-negligent circumstances, as they relate to the petitioner or the petitioner’s counsel, where the petitioner’s notice of appeal was filed shortly after the expiration date, and where the respondent is not prejudiced by the delay. Claimant filed his appeal on August 31, 2022, one day late. Claimant’s appeal to this Court lacked any justification or excuse for the untimely appeal. Claimant also attacks the WCJ’s credibility determinations, and the weight given to the evidence presented. The WCJ, as factfinder, has exclusive authority over the credibility of witnesses and the weight given to the evidence. In the absence of circumstances warranting nunc pro tunc relief, the Board correctly granted Employer’s Motion to Quash.
Affirmed.
PETITION FOR ALLOWANCE OF APPEAL FROM THE ORDER OF THE SUPERIOR COURT – GRANTED
John Brown V. George Gaydos, An Individual, T/D/B/A Gaydos Construction
AND NOW, this 23rd day of July 2024, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below. Allocatur is DENIED as to all remaining issues.
Where the record is clear that the plaintiff and defendant were employed by the same company and the plaintiff’s injury was compensable under the Worker’s Compensation Act, must the court consider whether the defendant was working in the course of his performance of duties for the employer to determine if the defendant is entitled to immunity as a co-employee?
PENNSYLVANIA LEGISLATIVE REVIEW
As of July 31, 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration, or consideration.
Regular Session 2023-2024
House Bill 760
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.
Subject: Direct Deposit for Workers’ Compensation
This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year. This proposed legislation was presented to the Pennsylvania Bar Association, House of Delegates, at the House meeting on May 10, 2024, and received the overwhelming support.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
House Bill 930
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation. Expanding Workers’ Compensation for Permanent Disfigurement
Subject: Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
07/01/2024 – 07/31/2024
WORKERS’ COMPENSATION ACT EXCLUSIVITY PROVISION
Tejada De Tapia v. 74 Indus. Inc.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
-
- A-2643-21; 2024 WL 3384831
Decided: 07/12/2024
Background:
Sylvia Melania Tejada de Tapia (Plaintiff) was injured while working for 74 Industries (Employer). She worked as a sewing machine operator and was injured when she was injured by an insect. The plaintiff alleged that the packages of fabric were often infested with insects causing the employees to be frequently bit and stung. Her insect bite caused an infection, and she was hospitalized as a result. Plaintiff filed a workers’ compensation claim against Employer, which was settled via a Section 20 Settlement.
New Jersey Manufacturers Insurance (NJM) provided workers’ compensation and employers liability insurance to Employer. Prior to settlement of the workers’ compensation claim, Plaintiff filed an intentional tort claim against Employer and Employer filed a third-party complaint against NJM seeking coverage under the policy for the intentional tort claim. NJM denied coverage and moved to dismiss the claim. The Motion to Dismiss was granted for failure to state a claim. The court looked at the Workers’ Compensation Act’s exclusive remedy provision and the intentional wrong exception. The court found that the plaintiff pled causes of action for intentional wrongs and that the insurance policy excludes intentional wrongs from coverage. The court found no duty to defend when the action was not covered by the policy.
Holding:
Employer argued that NJM had a duty defend for three reasons: (1) representation in the underlying workers’ compensation claim triggered NJM’s duty to defend, (2) the cited exclusions were ambiguous and required NJM to provide coverage, and (3) NJM had a duty to defend as a matter of public policy.
The Section 20 Settlement hearing record did not mention the plaintiff’s pending intentional-wrong suit in the Law Division. The plaintiff only consented to release all claims arising out of the claim petition filed in workers’ compensation court. This cannot include claims for intentional wrongs. Thus, this argument was rejected.
The C5 exclusion policy, which included “substantially certain” language was unambiguous as to its exclusion for coverage for intentional wrongs. The C7 endorsement cannot override the C5 exclusion for intentional wrongs.
The argument that the duty to defend is supported by public policy was also rejected as the court has consistently held that exclusions for intentional wrongs in insurance policies are legally valid.
There was no basis to find that NJM had a duty to defend or indemnify Employer against the plaintiff’s intentional wrong claims.
Affirmed.
NEW JERSEY LEGISLATIVE UPDATE
Assembly Bill 3986/S2822
Revises workers’ compensation law to increase contingency attorney fee cap in contingency cases from 20 percent to 25 percent.
Last Action: June 28, 2024 – Passed Assembly (Passed Both Houses) (54-20-0)
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee
Jul 11, 2024
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
06/1/2024 – 06/30/2024
PROOF OF EARNINGS LOSS – LEAD EXPOSURE
Jerry Mercer v. Active Radiator (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: June 3, 2024
Background:
On August 24, 2018, Claimant advised Employer that he had sustained a work-related injury due to lead exposure, and Employer issued a notice of denial. Claimant filed a claim petition seeking full disability benefits. The WCJ issued a decision denying Claimant’s claim petition. The Board issued a decision and order affirming the WCJ’s order.
Issues:
- Whether the WCJ capriciously disregarded relevant and competent evidence and his findings and conclusions were supported by substantial record evidence? 2. Whether the WCJ wrongly failed to apply the occupational disease rebuttable presumption? 3. Whether the WCJ’s rejection of testimony by Employer’s experts regarding Claimant’s return to work for Employer and the danger of further lead exposure was in error?
Holding:
First, capricious disregard occurs when the factfinder deliberately ignores relevant, competent, and “apparently trustworthy” evidence. The WCJ may reject even a witness’s uncontradicted testimony. The WCJ did not capriciously disregard dispositive evidence of record and the Board did not err in affirming the WCJ in this regard. Although Employer’s experts testified to one degree or another that lead toxicity can result in varied and that in the absence of baseline lead testing before Claimant worked for Employer, it can be difficult to diagnose or rule out definitively, it is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. A reasonable mind could certainly find this sufficient to support the WCJ’s determination that Employer’s experts’ testimonies were credible and sufficient to refute the allegations in the claim petition; therefore, that determination was supported by substantial evidence of record. Second, Claimant’s argument that the WCJ erred in declining to apply the presumption on the basis that he did not establish that he actually sustained lead toxicity is without merit. The WCJ was not required to conclude that he sustained a work-related injury because two of Employer’s experts stated that he should not be returned to work in an environment posing risk of further lead exposure. Here, the WCJ rejected the claimant’s position after hearing from multiple experts on both sides and evaluating their testimonies thoroughly. The Court has no basis to overturn the WCJ’s reasoned and supported credibility determinations as to the non-occurrence of an occupational disease and the legal conclusion based on those determinations that the presumption does not apply. Accordingly, the WCJ did not err in declining to apply the presumption and the Board did not err in affirming in this regard. Finally, the WCJ did not err by denying the claim petition and in giving more weight to Employer’s experts’ testimony that Claimant could resume work generally and without restrictions than to those experts’ acknowledgements that returning Claimant to a lead-oriented environment might not be optimal, and the Board did not err in affirming in this regard.
Affirmed.
MODIFICATION PETITION
Mark Rossi v. Cleveland Brothers Equipment Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 28, 2024
Background:
Claimant was injured in the course of his employment and Employer accepted the injury by a Notice of Compensation Payable (NCP). As of May 4, 2010, Claimant’s benefits were suspended. Claimant filed the instant Reinstatement Petition seeking to reinstate his benefits as of March 1, 2016, because his employment was terminated while he was on restrictions for his work injury. Claimant did not return to work after a second surgery until January 2013. Claimant again worked for Employer within his restrictions until June 2015 when he underwent surgery for an unrelated back condition. Upon being released to return to work with restrictions yet again, Employer informed Claimant that his previous position at their New Stanton, Pennsylvania, location was unavailable. Instead, Employer offered Claimant a parts warehouse position at its Cranberry, Pennsylvania, location. Claimant believed that the Cranberry position entailed heavier lifting, but ultimately declined Employer’s offer because of the mileage between his home and Cranberry – at least a 41-mile drive. Thereafter, Claimant obtained employment with a multitude of employers. However, due to his knee and back restrictions, Claimant did not last long in any position. The WCJ denied Claimant’s Reinstatement Petition. Although the WCJ found that Claimant continued to suffer from the effects of his work injury, he also found that Employer did not have work available to Claimant at his time-of-injury facility. The WCJ found that the evidence of record indicated Claimant’s reason for declining the Cranberry position was due to the travel distance and that any mention of Claimant’s continuing knee injury was simply “a passing comment.” The WCJ found that the Cranberry position was within Claimant’s physical capabilities and Claimant failed to show his wage loss was through no fault of his own. The Board affirmed the WCJ.
Issue:
Whether the WCJ erred by placing the burden of proof regarding Claimant’s job availability on Claimant rather than Employer and concluding that a position was within Claimant’s usual employment area?
Holding:
Where a claimant has been laid off after returning to a modified-duty position, he is entitled to the presumption that his disability is causally related to the continuing work injury. Once this presumption is established, the burden shifts to the employer to demonstrate that the claimant’s loss of earnings is not caused by the work-related disability by proving that there is suitable work available to the claimant. Jobs are available to a claimant if they are within the geographic area where others in the claimant’s community would accept employment. Claimant was entitled to a presumption that his continuing work injury was causally related to his loss in earning power, Employer bore the burden of rebutting this presumption by demonstrating that it offered him employment within his usual employment area. The WCJ prematurely shifted the burden of proof to Claimant. Employer failed to offer any competent testimony that members of Claimant’s community would accept offers of employment in Cranberry, be it by a vocational expert’s testimony or otherwise. Although it is true that the WCJ “as factfinder must have some latitude in determining what is ‘available’ to a specific claimant on the basis of the numerous factors set forth. Whatever the value of the WCJ’s personal experience may be, it is not a substitute for an employer’s evidentiary burden in this context. Furthermore, a two-day stint at the Cranberry location to cover another employee’s suspension is not the damning admission that Employer portrays it as. Many members of Claimant’s community may have accepted the Cranberry position knowing it was on a short-term basis. This does not mean they would have accepted it on a regular basis. Thus, while it may very well be the case that the Cranberry position was available to Claimant, Employer failed to make that case. The Board erred in affirming the WCJ because it was Employer, rather than Claimant, which bore the burden of demonstrating that others in Claimant’s community would accept the offered employment. To that end, Employer failed to offer any such evidence.
Reversed.
REINSTATEMENT PETITION
Veronica North v. GHG, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
Claimant was working for Employer as a home health aide when she was kicked in the right shin by a patient. Claimant continued to work without wage loss until May 19, 2016, when she underwent a surgical excision to remove a contusion, blood clot, and mass that had formed in her right leg following the injury. For a period of disability following the surgery, Claimant had been awarded wage loss benefits by a WCJ in a prior decision. On January 8, 2018, Claimant sustained an injury to her left knee, which aggravated pain symptoms persisting from the previous injury to her right leg. Claimant was again disabled for a period following that injury, for which she sought a reinstatement of the benefits from the prior injury. The WCJ reinstated Claimant’s wage loss benefits and amended Claimant’s injury description to include a scar neuroma. Following an updated IME, the parties filed additional petitions. The Employer’s expert disputed that there was a causal connection between the 2015 work injury and the conditions that purportedly necessitated a January 29, 2021 surgery. Employer’s expert further opined that there was no explanation for Claimant’s subjective pain complaints from a musculoskeletal standpoint. The WCJ denied both Claimant’s Review Petition and Employer’s Termination Petition. Neither party appealed from these aspects of the WCJ’s decision. Having been released back to work with restrictions, Claimant resumed working for Employer in a light-duty position on April 27, 2021, without loss in pay. Employer filed a Notice of Suspension on April 30, 2021, which announced its intention to suspend Claimant’s wage loss benefits as of April 28, 2021. Claimant did not file a challenge of the Notice of Suspension. However, on October 22, 2021, she filed a Penalty Petition. In the WCJ’s view, it was difficult to ascertain why the unchallenged Notice of Suspension should not be considered a fully executed supplemental agreement for the suspension of benefits consistent with Section 413(c) of the Act. The WCJ concluded, there is no reason to suppose that the Notice of Suspension was voided by any purported procedural error.
Issues:
Whether the WCJ further erred by declining to reinstate wage loss benefits for the period following Claimant’s recovery from work-related surgery?
Holding:
Claimant’s arguments as the lack of a reasoned decision and the other errors ascribed to the decision are without foundation. First, the contention that the WCJ failed to identify the evidence on which he relied is inaccurate. The WCJ’s decision contains a thorough discussion of the evidence that factored into his reasoning, above all the Notice of Suspension by which both parties agreed that Claimant’s benefits were to be suspended. The WCJ was under no obligation to consider all evidence presented, especially evidence that has already been adjudicated. If Claimant wished to challenge the WCJ’s previous determination that her September 8, 2021 surgery was not work-related, the appropriate method would have been to file an appeal of that decision to the Board. Furthermore, the WCJ carefully addressed each of Claimant’s procedural objections to the Notice of Suspension and explained in detail why none of its alleged defects rendered the agreement void. Claimant thus failed to establish why meaningful appellate review is in any way hindered by the WCJ’s decision. Employer’s refusal to pay wage loss benefits for her seven-week absence from work following her September 8, 2021, surgery was not illegal self-help and a disregard of the WCJ’s clear orders. As the WCJ explained in the decision below, the Notice of Suspension constituted a valid supplemental agreement between the parties, which the WCJ lacked authority to undo with an interim reinstatement order. In this instance, where no reinstatement order existed, the burden remained on Claimant to prove the elements for reinstatement. Since the WCJ’s February 6, 2022 decision already rejected the contention that her temporary absence from work following the September 8, 2021 surgery was work-related, the WCJ did not err in ruling subsequently that Employer was not responsible for wage loss benefits for that period.
Affirmed.
COMPENTENCY OF THE MEDICAL EVIDENCE
Giorgi Global Holdings, Inc. v. Edy Garcia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
Claimant sustained intense pain in both shoulders. As her symptoms persisted, she was forced to stop working a little while later. Employer accepted liability for Claimant’s injury, as bilateral shoulder pain from scaling and as a sprain or tear in the shoulders. Claimant filed a Claim Petition seeking wage loss benefits for bilateral shoulder damage caused by repetitive use and motion coupled with awkward positioning. The WCJ determined that Claimant met her burden of proof on the Claim Petition, finding that she sustained a work-related injury in the nature of an aggravation of a left shoulder chronic massive rotator cuff tear. While acknowledging that Claimant’s medical expert declined to state definitively whether Claimant’s ailment was work related, the WCJ accepted her clearly set forth opinion that Claimant’s activities in weighing the trays at chest height aggravated Claimant’s underlying shoulder condition such that Claimant required surgery and restrictions for her left shoulder and continued treatment for her right shoulder. The Board affirmed.
Issues:
Whether the opinions set forth in claimant’s expert report are incompetent and equivocal as a matter of law?
Holding:
Claimant’s medical expert’s opinions are not legally incompetent. The Court does not accord a talismanic significance to such words as “substantial contributing factor” when reviewing medical opinions. Rather, it only requires that the opinion permit a valid inference of causation. The WCJ’s omission of the word “substantial” is not legally erroneous, as the finding of a substantial contributing factor can be easily inferred from the context of his opinion. Employer also argued the claimant’s expert report substantiated nothing more than the occurrence of pain in Claimant’s shoulders while working, which itself is insufficient to establish work-related aggravation. This argument had no merit. The Court has consistently regarded the question of whether a work-related aggravation has occurred as one of fact, well within the WCJ’s purview. While the case law does require unequivocal medical evidence in instances where the causal connection is not obvious, it is only necessary that the evidence permit “a valid inference” that the requisite causal relationship was present. Contrary to Employer’s arguments, the report authored by Claimant’s expert was neither incompetent nor equivocal, and can provide the foundation for the WCJ’s decision. The appellate role in a workers’ compensation case is not to reweigh the evidence, but simply to determine whether the WCJ’s findings have the appropriate measure of support in the record. Since the WCJ’s factual findings in this case constituted a proper exercise of his discretion, the Board’s decision was affirmed.
Affirmed.
JUDICIAL DISCRETION
Daniel J. Cifelli v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 7, 2024
Background:
On July 30, 2020, Claimant, a corrections officer for Employer, was involved in an altercation with an inmate at work, during which he was injured. Employer accepted, via a Notice of Temporary Compensation Payable which converted to a Notice of Compensation Payable (NCP) by operation of law, a work-related injury in the nature of a laceration under his right eye when he was assaulted by an inmate who struck him in his face. Employer paid Claimant wage loss benefits until January 18, 2021, when it notified Claimant that it was suspending his benefits based on his return to work at no loss of earnings. On March 5, 2021, Claimant filed various Petitions asserting that his disability had recurred on February 17, 2021 when he could not work his time-of-injury position. He also argued that he sustained injuries beyond the accepted in the NCP and that the Employer violated the Workers’ Compensation Act when it failed to pay him disability benefits despite there being an open NCP. The WCJ found that all disability referable to the work injury ceased on October 19, 2021, thereby entitling Employer to a termination of benefits. Additionally, the WCJ found that Employer did not violate the Act in not paying wage loss benefits to Claimant after January 18, 2021, when Employer filed its notice of suspension, which Claimant did not challenge. The WCJ concluded that Claimant did not meet his burdens of proof on the Reinstatement and Penalty Petitions but that he did prove he suffered an additional work injury, the aggravation of his sternoclavicular arthritis, but that this injury did not disable him from his job and had fully resolved by October 19, 2021. The Board affirmed.
Issue:
Whether the WCJ’s decision represents a capricious disregard of the evidence, is unreasoned, and abuse of discretion, and unsupported by substantial evidence?
Holding:
First, the Board committed no error in the standard of review applied. In cases where both parties present evidence, the critical inquiry is whether there is evidence to support the findings actually made, and it is irrelevant whether the record contains evidence to support findings other than those made by a WCJ. A WCJ, as the factfinder, has the sole authority to assess credibility, to resolve conflicting evidence, and to determine the weight given to the evidence. The Board did not ignore the allegations of capricious disregard, rather it recognized that there was substantial evidence to support the WCJ’s findings of fact and the findings support the conclusions. If the Board erred in invoking the mental/mental standard, any such error was harmless because Claimant did not establish that he sustained PTSD in the first instance. Second, as for the WCJ’s failure to specifically reference that evidence in the findings, a WCJ is not required to provide a line-by-line explanation of the evidence presented and how that evidence may have affected the ultimate decision. Finally, whether medical opinion evidence is competent or equivocal is a question of law based upon a review of the opinion or testimony as a whole. A medical expert’s opinion is not incompetent unless it is based solely on inaccurate or false information. The opinion must be viewed as a whole, and even inaccurate information will not render the opinion incompetent unless it is dependent on the inaccuracies. Here, it cannot be said that the opinions, when taken as a whole, were solely based on inaccurate or false information and not legally competent for that reason. The Claimant did not establish that either the WCJ or the Board erred or abused their discretion in this matter. Accordingly, the Board’s Order is affirmed.
Affirmed.
Amanda Bailey v. Pyramid Health Holdings, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: June 5, 2024
Background:
Claimant filed a Claim Petition alleging that she sustained a lower back injury. Employer filed an Answer denying that Claimant was entitled to benefits. Employer alleged that, although Claimant had stopped working as of May 2, 2019, she had not stopped working because of her work injury. Claimant testified that she formerly was employed as a direct care worker for Employer, which position involved helping individuals with disabilities to cook, clean, and bathe. Claimant was injured while helping an individual out of the shower and back into his wheelchair. Claimant reported the incident to the on-call nurse but did not report that she had been injured because she did not feel that she was injured at that time. A few weeks later, Claimant was experiencing symptoms. Thereafter, Claimant reported the injury to her manager during a staff meeting and advised that she was going to file for workers’ compensation benefits because her physical condition was preventing her from doing her job. Disc abnormalities were noted on the MRI, and the Claimant’s expert attributed one of these to the work injury, as if would have created immediate symptoms, based on its size. Two fusion surgeries were performed. Claimant also appeared to have a prior low back issue, in spite of what she related to the providers. The WCJ did not find the Claimant credible, even though the incident occurred, as the claimant provided an inconsistent work injury. Claimant’s expert did not have an accurate history and employer’s expert was more credible. While Claimant met her burden to establish that she sustained a work injury in the nature of a lumbar strain and contusion with aggravation of a pre-existing radiculopathy. However, Claimant did not meet her burden to establish that her disability was related to that injury. The disability beginning May 2, 2019, was associated with the condition for which she had surgery, and which was unrelated to the work injury. The Board affirmed.
Issue:
Whether the WCJ’s credibility determinations are in error and supported by substantial evidence?
Holding:
Claimant’s issues involved the WCJ’s credibility determinations and whether they are sufficiently “reasoned” under Section 422(a) of the Act. Even where a WCJ makes credibility determinations on a cold record, the Court affords substantial deference and will overturn those determinations only where they are arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render the WCJ’s decision irrational. Claimant’s argument is simply an attempt to reevaluate and second-guess the WCJ’s credibility determination, which the Court may not do. A WCJ need only explain the rationale used for discrediting otherwise competent, relevant evidence to a degree that permits a court to conduct meaningful appellate review without having to “imagine” the WCJ’s reasoning. Regarding live witnesses such as Claimant, a WCJ may rely exclusively on the witness’s demeanor to justify a credibility finding. The WCJ’s explanation of his credibility determinations in this regard are adequately reasoned.
Affirmed.
JUDICIAL DISCRETION – COVID CASE
Laura A. Goodz v. County Of Lancaster (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 3, 2024
Background:
Employer hired Claimant as a full-time Correctional Officer at the County Prison beginning October 26, 2020. Claimant worked in D-Block, which was an isolation area for inmates with COVID-19, on November 20, December 6, and December 27, 2020, and January 1, and January 2, 2021. Claimant began to experience COVID-19 symptoms in January 2021, including fatigue and shortness of breath. She reported her concerns to Employer on January 8, 2021, after having worked a long shift and being asked to work mandatory overtime. Employer issued a Notice of Compensation Denial on March 11, 2021. On March 15, 2021, Claimant filed the Claim Petition, therein alleging that she suffered a work-related injury on January 8, 2021, when she contracted COVID-19 pneumonia from her employment at the County Prison. Claimant sought temporary total disability as of January 14, 2021, and ongoing. The WCJ denied Claimant’s Claim Petition. The Board affirmed.
Issue:
Whether the Board erred by affirming WCJ Lugo’s credibility determinations (COVID allegation)?
Holding:
The WCJ is the ultimate factfinder and is empowered to determine witness credibility and evidentiary weight. The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses. The WCJ’s decision is not arbitrary and capricious. The requirement that the WCJ adequately explain his reasons for accepting or rejecting evidence protects the parties to a decision by ensuring that a legally erroneous basis for a finding will not lie undiscovered. For instance, if a WCJ rejects evidence based on an erroneous conclusion that testimony is equivocal, or that the evidence is hearsay or for some other reason incompetent, such legal error will be evident and can be corrected on appeal. However, the WCJ’s prerogative to determine the credibility of witnesses and the weight to be accorded evidence has not been diminished by the amendments to Section 422(a) of the WC Act. The evidence established that Claimant tested positive for COVID on January 11, 2021, and thereafter developed COVID pneumonitis with evidence of shortness of breath with hypoxia. Both medical experts agreed on the diagnosis. Both medical experts also agreed Claimant cannot perform the duties of her regular job as a corrections officer. The issue was whether Claimant was exposed to and became infected with COVID from an exposure at work. Claimant maintained that the only place she was exposed to COVID was at work because she worked in D-Block where they housed people with COVID. Employer’s records indicate that during the possible period of incubation in this case (December 23, 2020-January 5, 2021), only one inmate tested positive for COVID on December 8, 2020, which was well before Claimant’s possible exposure period based on her January 11, 2021 positive test date. The WCJ described her reasons for accepting one medical testimony and rejecting the other testimony. The WCJ held that the Claimant has not established that she contracted COVID from an exposure at work and rejected Claimant’s expert’s opinion on causation. Claimant did not prove an exposure during the relevant times. Even where a WCJ has based a credibility determination on a cold record, substantial deference is due. 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. This Court would not hold that the WCJ’s credibility determinations of the medical experts were arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational. Accordingly, the Board did not err by affirming the WCJ’s credibility determinations.
Affirmed.
EMPLOYER EMPLOYEE RELATIONSHIP
Reading Anthracite Company, et al. v. Molly Oxenrider, et al. (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: June 11, 2024
Background:
West Spring, Reading Anthracite Coal Company (RAC), and Rockwood Casualty Insurance Company (Rockwood) were the Petitioners. West Spring and RAC conduct coal mining operations. West Spring employed Decedent as an equipment operator but scheduled him to be laid off. RAC needed a bulldozer operator for a new project at one of RAC’s refuse banks. Decedent was directed to report to RAC for a bulldozer operator assignment. Decedent was fatally injured while operating a bulldozer on a refuse bank for RAC. West Spring, through its insurer, Rockwood, filed an NTCP acknowledging that Decedent sustained a fatal crushing injury during the course and scope of his employment. This was later converted to an NCP. RAC’s insurer, SWIF, filed an Notice of Workers’ Compensation Denial (NCD) acknowledging Decedent’s fatal crush injury, and stating a denial on the basis that no policy was in effect on the date of the accident. SWIF issued another NCD stating that Decedent was not an employee of RAC at the time of the injury. Later, Rockwood’s claims representative entered into an Agreement with Widow acknowledging therein that Decedent sustained fatal injuries to his head, thorax, and left leg when he was run over by the track of a bulldozer. On February 21, 2020, the United States (U.S.) Secretary of Labor filed a Motion to Approve Settlement (Settlement) between the Mine Safety and Health Administration (MSHA) and RAC. Pursuant to the Settlement, MSHA sought civil penalties for RAC’s six citations for violation of the Federal Mine Safety and Health Act of 1973 in connection with Decedent’s death. The Settlement reflected that Decedent was working under RAC’s direct control and supervision at the time of his death. RAC was ordered to pay a civil penalty of $70,359.50 to MSHA within 30 days. West Spring filed a Joinder Petition seeking to join RAC as an additional employer and SWIF as an additional insurer. The WCJ denied West Spring’s Joinder and Review Petitions. The WCJ found that West Spring failed to meet its burden of proving that there was either a material mistake of fact at the time it issued its NCP, or that there was insufficient time to investigate the claim before West Spring accepted it. In addition, the WCJ found that an ongoing employment relationship existed between West Spring and Decedent at the time of Decedent’s death on July 25, 2017. The WCJ also found that Rockwood shall remain the carrier liable for the fatal claim, subject to the Agreement. The Board affirmed the WCJ’s decision.
Issues:
(1) Whether the Board erred when it affirmed the WCJ’s denial of the Petitions with respect to Decedent’s employment relationship?; and (2) Whether the Board erred by affirming the WCJ’s decision, wherein, the WCJ failed to find that Decedent was a borrowed servant?
Holding:
A WCJ may, at any time, review and modify or set aside an NCP and an original or supplemental agreement or upon petition filed by either party. However, this is discretionary. The issue of who employed Decedent at the time of death was identified and vetted by the Rockwood Claims Adjuster during the time the NTCP was issued and the date the Conversion Notice was issued. There was communication which identified Decedent as an employee of West Spring. Then, more than two years after the accident, the Claims Representative from Rockwood, on behalf of its insured West Spring, entered into the Agreement. This document was signed by both the Rockwood Claims Representative and the Widow of Decedent. In addition, the evidence presented in this dispute, which was accepted as credible by the WCJ, supported a finding that Decedent remained on the payroll of West Spring up to the date of death and that there had been no determination as to whether Decedent would be permanently transferred to RAC. Clearly, there was an ongoing employment relationship between Decedent and West Spring at the time of his death. The credible evidence also supports a finding that at the time the accident was reported to Rockwood, the person responsible for reporting injuries and claims for work injuries, a RAC employee, considered Decedent an employee of West Spring. The Petitioners had sufficient time to investigate the identity of Decedent’s employer, based upon substantial evidence. The WCJ did not err or abuse its discretion by denying the Petitions with respect to Decedent’s employment relationship. The Board properly affirmed the WCJ’s decision.
Affirmed.
APPEALS – TIMELINESS
Ronald Neff v. Heat Treating (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
Claimant sustained an injury while employed as an operations manager by Employer. Claimant filed a claim petition, in which he requested the payment of full disability benefits as of the date of the episode, along with payment of medical bills and counsel fees. The WCJ granted the Claim Petition in part and denied it in part. The WCJ found that although Claimant did suffer a work-related injury, he was able to return to his pre-injury employment shortly after the incident on November 19, 2018, without restrictions or limitations. Accordingly, the WCJ granted the Claim Petition for medical benefits only and awarded counsel fees. The Board affirmed. Approximately seven months later, Claimant attempted to petition the Commonwealth Court for review of the Board’s Order pro se via email on November 4, 2022. The Court issued a Notice on December 19, 2022, providing Claimant with detailed instructions regarding the appeal process and enclosing a blank petition for review form. Claimant filed his petition for review three months later, on March 22, 2023. The Court issued an Order noting the potential untimeliness of the appeal and directing the parties to address this issue in their briefs or by appropriate motion.
Issue:
Whether the Claimant’s Petition is untimely and should be quashed?
Holding:
Whether Claimant’s Petition was timely filed implicates the Court’s jurisdiction over this appeal. The Pennsylvania Rules of Appellate Procedure provide that a petition for review of a quasijudicial order shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order. An appellate court may not enlarge the time for filing a petition for review. Claimant did not file his Petition in this Court until nearly one year after the Board issued its order, well in excess of the 30-day statutory appeal period. Given the patent untimeliness of Claimant’s Petition, the Court was without jurisdiction to consider it and therefore quashed this appeal as untimely.
QUASHED as untimely.
IMPAIRMENT RATING EVALUATIONS
Adam Kirsch v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: June 5, 2024
Background:
On May 14, 2018, Claimant sustained a work-related injury. Employer filed a Modification Petition seeking to change Claimant’s disability status from temporary total disability to temporary partial disability based on the results of an IRE performed on February 28, 2022. The WCJ granted Employer’s Modification Petition, holding that the Employer established entitlement to a modification of Claimant’s benefits to temporary partial disability status based on the IRE that found him 16% impaired under the American Medical Association “Guides to the Evaluation of Permanent Impairment,” 6th edition (second printing April 2009). The Board affirmed.
Issue:
Whether the IRE process set forth in Act 111 is unconstitutional?
Holding:
Act 111 does not represent an unconstitutional deprivation of property rights in violation of the due process and equal protection clauses of the Pennsylvania and United States Constitutions. The Court’s prior decisions reveal that the claimant’s arguments have no merit.
Affirmed.
PENNSYLVANIA LEGISLATIVE REVIEW
As of June 30, 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration, or consideration.
Regular Session 2023-2024
House Bill 760
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.
Subject: Direct Deposit for Workers’ Compensation
This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year. This proposed legislation was presented to the Pennsylvania Bar Association, House of Delegates, at the House meeting on May 10, 2024, and received overwhelming support.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
House Bill 930
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation. Expanding Workers’ Compensation for Permanent Disfigurement
Subject: Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
06/01/2024 – 06/30/2024
WORKERS’ COMPENSATION ACT EXCLUSIVITY PROVISION
Evan v. City of Newark
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-0832-22; 2024 WL 2838522
Decided: 06/05/2024
Background:
Evan Scott (Plaintiff) was a sanitation worker employed by the City of Newark (Employer). On September 11, 2015, the plaintiff was assigned to collect garbage with a coworker. A resident gave the plaintiff and the coworker a case of beer along the route and a dispute arose over it. At the end of the route, the coworker threatened plaintiff and then went to his car and came back with a baseball bat. The coworker then hit plaintiff about six or seven times with the bat. The coworker also stabbed the plaintiff in the back of the head with an ice pick.
Plaintiff sought and received workers’ compensation benefits for his injuries. The plaintiff filed a complaint against the City and alleged the assault constituted intentional infliction of emotional distress and the City was responsible under respondeat superior and negligent retention/supervision. The City moved for summary judgment on three grounds, one of which was that the negligence claims were precluded by the Workers’ Compensation Act’s (WCA) exclusivity provision.
The plaintiff argued that the claims were not barred by the WCA because the City continued to employ the coworker after reports of violence towards other coworkers which resulted in substantial certainty of injury.
The court found that the plaintiff did not demonstrate that the City had exposed him to substantial certainty of injury, which would permit the claims to overcome the WCA bar.
Holding:
On Appeal, the plaintiff raised the same argument, specifically contending the City was aware of his coworker’s “history of violating the rules, harassing, and threatening fellow employees and assaulting coworkers” which was documented, yet they continued to keep him employed. Plaintiff argued this created a substantial certainty that he would continue and that his injuries were beyond what Legislature could have contemplated an employee to recover under the WCA.The WCA is the exclusive remedy for injuries sustained in an accident arising out of and in the course of employment. There is an exception for an intentional wrong. To show an intentional wrong, the employee must establish the employer knew that its actions were substantially certain to result in injury or death to the employee.The Court found that the coworkers past disciplinary history, including a prior altercation, does not alone establish that the City was aware that the coworker’s continued employment was substantially certain to cause the plaintiff’s injuries. Thus, the plaintiff did not meet his burden to overcome the WCA’s exclusivity provision.
Affirmed.
Gjana v. Diabes Enterprises
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2651-22; 2024 WL 2954302
Decided: 06/12/2024
Background:
Besnick Gjana (Plaintiff) broke his leg when he fell off a ladder at a construction site. Plaintiff did not speak English and secured the job through his cousin. Plaintiff filed a workers’ compensation claim as well as a personal injury claim.
There was confusion as to who Plaintiff worked for – Diabes Enterprises or Waterside Company. At the close of discovery, Defendants filed a summary judgment motion and asserted the plaintiff’s claims were barred by the exclusivity provision under the Workers’ Compensation Act (WCA). They additionally noted that the plaintiff did not dispute he worked for Waterside and that he filed a workers’ compensation claim against Waterside.
The trial court found that the WCA barred the plaintiff’s claims against Waterside. They additionally concluded only Waterside owed a duty to plaintiff. An argument that Waterside’s failure to procure workers’ compensation insurance rendered the WCA inapplicable was rejected.
Holding:
On appeal, plaintiff argues the judge erred in concluding the claims against Waterside were barred by the WCA because Waterside failed to obtain workers’ compensation insurance and thus should not have protections under the WCA. He additionally argued the judge erred in determining the other alleged defendants, Diabes Enterprises or 525 Livingston did not owe a duty to him.
Under the WCA, the Fund will provide compensation to uninsured employers who fail to provide compensation to their employees.
Here, plaintiff was an employee of Waterside and filed a workers’ compensation claim against Waterside. By agreeing to pursue the workers’ compensation claim, plaintiff relinquished his right to any other method or type of compensation. If Waterside fails to pay what was awarded by the workers’ compensation court, the plaintiff may seek recovery from the Fund. It was further found that the WCJ properly found that neither Diabes Enterprises or 525 Livingston owed a duty of care to plaintiff.
Affirmed.
REIMBURSEMENT OF COUNSEL FEES FOR NEGLIGENCE ACTION
Lawson v. Nunn
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-3295-22; 2024 WL 2862824
Decided: 06/06/2024
Background:
Doug Nunn is a thoroughbred racehorse trainer that owns horse stables at Monmouth Park Racetrack. Madison Lawson (Plaintiff) was thrown from a horse and injured at the racetrack.
Plaintiff filed a claim petition alleging she injured her left leg while employed as an exercise rider for Nunn. Following the claim petition, the plaintiff also filed a negligence action against Nunn to recover damages for the same incident alleged in the claim petition.
The insurance company providing coverage to Nunn took the position that under their agreement, coverage was not provided here. The question was whether the plaintiff was an employee at the time of the incident. Nunn asserted in its answer to the claim petition that plaintiff was not employed by Nunn at the time of the incident. The WCJ ruled that plaintiff was Nunn’s employee at the time of the incident.
Nunn filed a motion seeking counsel fees from the insurance company for its failure to defend Nunn in the negligence claim. The trial court found that the insurance company had a duty to defend Nunn in the negligence accident once the WCJ ruled the plaintiff was an employee and denied reimbursement for counsel fees.
Holding:
On Appeal, Nunn argued the trial court erred in denying counsel fees. Nunn alleged the insurance company breached its duty and must reimburse for the defense costs until the WCJ decided whether the plaintiff was an employee because that determination informed that there was coverage under the insurance policy.
The Court determined the insurance company’s duty to defend is in the plain language of the policy. The allegations in the plaintiff’s complaint fell under the insurance provided. The trial court properly concluded the insurance company had a duty to defend the negligence action prior to the WCJ ruling. The court further found that there was no duty to reimburse counsel fees because Nunn was not a prevailing party in the action.
Affirmed.
WITHIN THE SCOPE OF EMPLOYMENT
Barrett v. Hackensack Univ. Med. Ctr.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-3441-22; 2024 WL 2967278
Decided: 06/13/2024
Background:
Vilma Barrett (Plaintiff) worked for Hackensack University Medical Center (Defendant) as a certified nursing assistant. The plaintiff worked the night shift. On the day of her injury, she had clocked out of work and went with her son to the Hospital’s emergency department. After the son was discharged, the plaintiff was walking in the hospital’s parking garage when she tripped and fell. The plaintiff sustained injuries in the fall.
The plaintiff filed a negligence injury claim. The defendant moved for summary judgment, which was granted. The trial court found that the New Jersey Workers’ Compensation Act (WCA) barred the plaintiff from suing the defendant for her injuries because she never left the premises after concluding her shift.
Holding:
On appeal, the summary judgment was reviewed. The question was whether the fall was in the course of the plaintiff’s employment.
The WCA only compensates for injuries arising out of and in the course of employment. This requires causality and the circumstances to be related to the employee’s duties.
Here, the Court found that the plaintiff’s decision to remain at the hospital was purely personal. This was similar to other cases where the plaintiff was on the employer’s premises for personal reasons. The Court stated that the location of the injury is not dispositive. The premises rule applies only to the first part of the inquiry regarding the WCA’s application. Additionally, the WC court and trial court can both exercise concurrent jurisdiction to determine compensability. There was no evidence that the plaintiff was performing any work-related tasks while in the emergency room. The trial court erred in granting summary judgment. The Court reversed and vacated the order granting summary judgment.
Reversed and Remanded.
CAUSALLY RELATED
Salomone v. Spectrum360
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-0710-23; 2024 WL 3092731
Decided: 06/24/2024
Background:
Victoria Salomone (Petitioner) was employed as a special education teacher by Spectrum360 (Respondent). The claimant was kicked in her left breast by a student where she had breast augmentation 11 years earlier. The petitioner claimed the kick caused her tremendous pain, tenderness, extreme redness, and blood clotting in the left breast.
Petitioner filed a Claim Petition seeking benefits. In Respondent’s answer, they disputed the existence, nature, extent, causation, and permanency of the alleged injuries. Petitioner filed a Motion for Temporary Medical and Disability benefits seeking a breast reconstruction surgery.
Petitioner’s medical expert, Dr. Volshteyn, recommended breast reconstruction surgery as well as the removal and replacement of both implants as he suspected a slow leak rupture of the left breast implant. An MRI showed no definitive evidence of a rupture and Petitioner was sent for a second opinion. Dr. Friedlander examined the petitioner and found no evidence of implant damage or rupture. She further explained that saline implants, such as these, would deflate quickly unlike silicone implants. No deflation was shown on the MRI. Dr. Friedlander opined that the petitioner’s complaints are unrelated to the incident and a result of her significant weight gain. Respondent additionally asserted that the petitioner’s complaints include her comorbidities of lupus and rheumatoid arthritis.
The petitioner and two doctors testified at a plenary hearing on the Motion. Dr. Volshteyn had based his examination and initial opinion on the assumption that the petitioner had silicone implants. This undermined his testimony. Dr. Friedlander testified that the implant had not ruptured and that the proposed surgery was unnecessary and unrelated to the incident.
The judge denied the Motion for Medical and Temporary Benefits. The judge found Dr. Friedlander to be more credible because she relied on objective information. The judge concluded that the petitioner failed to prove by a preponderance of the evidence that the recommended surgery was causally related to the work incident.
Holding:
On appeal, the petitioner argued that the judge’s decision was not based on credible evidence and that the judge misapplied the medical standard.
The Court found that the judge’s decision was supported by sufficient, credible evidence in the record. The decision was supported by the testimony of Dr. Friedlander and the objective evidence from the MRI. The Court further found that the petitioner failed to sustain her burden of proving the surgery is casually related to the work incident. The judge’s findings are supported by competent relevant and reasonably credible evidence in the record.
Affirmed.
NEW JERSEY LEGISLATIVE UPDATE
Assembly Bill 3986/S2822
Revises workers’ compensation law to increase contingency attorney fee cap in contingency cases from 20 percent to 25 percent.
Last Action: May 16, 2024 – Reported out of Assembly Committee, 2nd Reading
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee
