CASE SUMMARIES 1/27/2023 – 2/28/2023

Mar 2, 2023

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
1/27/2023 – 2/28/2023

STATUTORY EMPLOYMENT

Jason Yoder v. McCarthy Constr. et al, v. Air Control Tech & RRR Contractors
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 31, 2023

Issue:

Whether McCarthy Construction, Inc. (“McCarthy”) qualifies as Jason Yoder’s statutory employer under the Workers’ Compensation Act, such that it is immune from suit?

Background:

Appellant, McCarthy Construction, Inc. (“McCarthy”), appealed from a $5,590,650.69 judgment entered in favor of Appellee, Jason Yoder, and against McCarthy. The Norwood Public Library entered into a contract with McCarthy, a carpentry company. McCarthy, in turn, subcontracted with roofing company, RRR Contractors, Inc., for part of the roofing work. Mr. Yoder worked for RRR. Mr. Yoder sustained critical injuries after he fell through an uncovered hole in the roof of the library while working there as a roofer. Mr. Yoder suffered severe and permanent disabling injuries and will require pain management for the rest of his life because of his progressively debilitating injuries. Mr. Yoder filed a complaint against McCarthy contending McCarthy was negligent. McCarthy raised the argument that Mr. Yoder’s claims are barred or limited by the exclusivity provisions of the Pennsylvania Workers’ Compensation Act. The trial court denied McCarthy’s motion for summary judgment. Mr. Yoder sought to preclude McCarthy from raising the statutory-employer defense at trial because McCarthy had purportedly waived the defense by failing to timely plead it. The trial court determined that, although the statutory-employer defense is not waivable, McCarthy failed to meet any of the prongs of the test to establish that it was the statutory employer of Mr. Yoder. The jury returned a unanimous verdict in favor of Mr. Yoder in the amount of $5,000,000, based upon negligence. The trial court also issued an order granting Mr. Yoder delay damages in the amount of $590,650.69. In post-trial submissions the trial court held that McCarthy did not and cannot succeed with the non-waivable statutory employer defense because it fails to meet the fifth prong of the test established in McDonald, as he was an independent contractor for RRR.

Holding:

In exchange for assuming secondary liability for the payment of workers’ compensation benefits, statutory employers under Section 302(b) have immunity in tort for work-related injuries sustained by subcontractor-employees. McCarthy’s failure to timely plead the statutory-employer defense does not result in waiver. Statutory-employer immunity may be raised at any time so long as the proceedings are still open. To establish this statutory- employer relationship the PA Supreme Court has held that the following five elements must be present: (1) An employer who is under contract with an owner or one in the position of an owner; (2) Premises occupied by or under the control of such employer; (3) A subcontract made by such employer; (4) Part of the employer’s regular business entrusted to such subcontractor; (5) An employee of such subcontractor. The Superior Court determined that McCarthy qualifies as Mr. Yoder’s statutory employer under the five-part McDonald test and is therefore entitled to tort immunity. Accordingly, they reversed the judgment entered in favor of Mr. Yoder and remanded for the entry of judgment in favor of McCarthy. An independent contractor can never be a statutory employee. Therefore, the elements of the McDonald test cannot be met where a contractor is an independent contractor. Pennsylvania does not have an established rule to determine whether a particular relationship can be classified as employer-employee or owner-independent contractor but instead promulgates certain guidelines or factors. With respect to the fifth McDonald element, Mr. Yoder was not an independent contractor of subcontractor, RRR, but instead an employee of RRR. Judicial estoppel applies here. Mr. Yoder sought and obtained workers’ compensation benefits from RRR, with his claim resolved in a “Compromise and Release Agreement by Stipulation. As part of the Compromise and Release Agreement, Mr. Yoder formally resigned his employment with RRR. Mr. Yoder’s demand for and receipt of workers’ compensation benefits conclusively established that he was an employee of RRR. Mr. Yoder represented in the Compromise and Release Agreement that he was an employee of RRR, not an independent contractor. He successfully maintained that position, as holding himself out as an employee of RRR enabled him to receive workers’ compensation benefits.” The Court noted that McCarthy meets the other four requirements as well. McCarthy was under contract with the Norwood Borough, the owner of the library where the accident occurred. McCarthy has met the first McDonald element, as it has a contract with the owner. While an employer satisfies the second prong by proving either occupancy or control and it is not required to prove both. McCarthy has established both. The third McDonald element calls for a subcontract made by McCarthy. McCarthy meets this requirement. The fourth McDonald element demands that McCarthy entrusted a part of its regular business to RRR. This element, as a general rule, is satisfied wherever the subcontracted work is an obligation assumed by a principal contractor under his contract with the owner. As such, all elements for a statutory-employer relationship are met.
Reversed.

YELLOW FREIGHT MOTIONS

Mark Davis v. Crothall Healthcare, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 1, 2023

Issue:

Whether the Board erred in affirming the WCJ’s termination of disability benefits when, pursuant to Yellow Freight, Claimant was entitled to a rebuttable presumption that his disability continued, which Employer’s equivocal and incompetent medical evidence failed to refute?

Background:

Claimant worked in Employer’s environmental services department. On December 3, 2019, Claimant filed a claim petition, alleging that he sustained a work injury on October 18, 2018 from cumulative trauma to his lower back and bilateral knees as a direct result of his job duties over the course of 14 years working for Employer, and that he notified Employer of his work injury in a written report dated January 21, 2019. The WCJ conducted a hearing on January 8, 2020, at which Employer neither appeared nor was represented by counsel. The WCJ noted that Employer had also failed to file an answer as of that date. Claimant requested relief pursuant to Yellow Freight. The WCJ issued an interlocutory order (Order) that deemed admitted all factual allegations contained in the claim petition. The Order also granted the claim petition and directed that Employer pay Claimant total disability benefits from October 19, 2018 until the last day Employer’s answer could have been timely filed. In a June 3, 2021 final decision, the WCJ found that Employer provided no adequate excuse for filing an untimely answer to the claim petition. However, the WCJ rejected Claimant’s testimony to the extent it suggested Claimant’s disability extended beyond May 27, 2020. Accordingly, the WCJ granted Claimant’s claim petition but concluded that Claimant failed to demonstrate he continued to suffer from a work-related disability after May 27, 2020, and Employer sustained its burden of proving that Claimant had fully recovered from his work injury as of that date. Both Claimant and Employer appealed to the Board.

Holding:

When an employer fails, without adequate excuse, to file a timely answer to the claim petition, the employer is deemed to have admitted the factual allegations in the claim petition. The employer is thus barred from presenting any affirmative defenses or challenges thereto. However, an employer’s failure to timely file an answer is not the equivalent of a default judgment as the claimant must still present evidence regarding any facts that were not well-plead in the claim petition, and an employer may rebut such evidence. Furthermore, the claimant is only entitled to a presumption of ongoing disability “up to the last day the answer could have been timely filed.” The employer is permitted to offer evidence to rebut this presumption. The WCJ, and the Board, erred in assigning claimant the burden of proof to demonstrate ongoing injuries and disability after May 27, 2020, and in only granting Claimant benefits through the date of Employer’s answer, January 8, 2019. By virtue of Employer’s late answer, and the deemed admissions set forth in the claim petition, Claimant sustained cumulative trauma to his lower back and bilateral knees as a direct result of his job duties in the environmental services department for Employer over the course of 14 years. Having admitted to the truth of these allegations, Employer was barred from presenting any evidence to rebut them. Employer’s expert did not believe that cumulative trauma caused Claimant’s lumbar strain and sprain, and he utterly rejected the notion that Claimant sustained a work injury to his knees and, in fact, denied that Claimant sustained any work injury, despite his earlier acknowledgement that Claimant suffered a lumbar strain and sprain. In refusing to acknowledge the full extent of Claimant’s work injury, Employer’s expert could not provide an opinion regarding Claimant’s recovery from all aspects of his work injury. Consequently, Claimant remained entitled to a rebuttable presumption that his disability continued after December 23, 2019, the last date upon which Employer could have filed a timely answer to the claim petition. Because Employer’s medical evidence was insufficient to support a conclusion that Claimant had fully recovered from his work injury, the WCJ erred in terminating Claimant’s benefits, effective May 27, 2020.

Reversed.

Judge Leavitt issued a dissenting opinion noting that, it is well established that a medical expert need not believe that a work injury occurred in order to opine on a claimant’s recovery. The medical expert’s opinion is competent if he assumes the presence of an injury and finds it to be resolved by the time of the Independent Medical Examination. Employer’s expert opined that Claimant was fully recovered from his work injuries; able to perform his time of injury position without restriction; and was no longer in need of medical treatment of any kind, as of his examination on May 27, 2020.

IMPAIRMENT RATING EVALUATIONS

Ronald Bainbridge v. Commonwealth of Pennsylvania (WCAB) Commonwealth
Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 3, 2023

Issue:

Whether receipt of Act 534 benefits constitutes the receipt of total disability WC benefits under Section 306(a) and (a.3) of the WC Act?

Background:

Claimant suffered a work-related injury relating to a resident assault during his employment at the North Central Secure Treatment Unit facility, for the Employer. Employer acknowledged the injury and noted that Claimant was receiving salary continuation through Act 534 benefits in lieu of WC benefits. In 2020, Employer filed the Modification Petition alleging that Claimant has a whole-person impairment of 16% under the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides), which is less than the 35% threshold under Act 111 after attending an Impairment Rating Evaluation (IRE). A hearing on Employer’s Modification Petition ensued. The WCJ issued a Decision and Order in which she granted Employer’s Modification Petition, and modified Claimant’s benefit status from total disability to partial disability effective the date of the IRE. Claimant appealed the WCJ’s Decision and Order to the Board, arguing that the WCJ erred in granting the Modification Petition because he did not receive total disability WC benefits for the required 104 weeks because he had received Act 534 benefits for that period of time. The Board rejected Claimant’s assertion.

Holding:

The Court had already previously decided this issue, in an earlier case, and held that receipt of Act 534 benefits constitutes the receipt of total disability WC benefits under Section 306(a) and (a.3) of the WC Act, thereby triggering the IRE process under which Employer could seek the modification of his WC benefits.

Affirmed.

Kenneth Elliott v. City of Pittsburgh (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 6, 2023

Issue:

Whether the Claimant’s Protz-IRE reinstatement, from partial disability benefits to total disability benefits, should have been effective as of the original 2012 modification date, or as of the date the Reinstatement Petition was filed?

Background:

Claimant sustained a back injury in the course and scope of his employment with the City of Pittsburgh (Employer). In December 2012, he underwent an impairment rating evaluation (IRE) provided for in former Section 306(a.2) of the Pennsylvania Workers’ Compensation Act (Act), which resulted in an impairment rating of less than 50%.
Employer then filed a modification petition, and in a 2014 decision and order, a WCJ modified Claimant’s disability status from total to partial as of the December 2012 IRE date. In April 2021, Claimant filed a reinstatement petition seeking a return to total disability status based on the Pennsylvania Supreme Court’s decision in Protz. A WCJ granted the petition and reinstated Claimant to total disability status. The WCJ ordered the reinstatement to be effective as of the date of Claimant’s reinstatement petition.
Claimant appealed to the Board, arguing that his reinstatement should have been effective as of the 2012 modification date. The Board affirmed the WCJ’s decision and order.

Holding:

Claimant’s arguments were similar to those raised and rejected numerous times by the Court. The claimant’s arguments were, therefore, rejected. Employer was entitled to credit for partial disability payments to Claimant between the date of the 2012 IRE and the date of Claimant’s reinstatement petition, and the WCJ properly used the filing date of the Reinstatement Petition as the reinstatement date.
Affirmed.

MEDICAL FEE REVIEWS

Philadelphia Surgery Center v. Excalibur Ins. Mgmt. Serv., (Bureau of Workers’ Compensation Fee Review Hearing Office)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 27, 2023

Issue:

Whether the Hearing Officer had the statutory authority to impose the remedy of reimbursement for overpayment of medical services?

Background:

Claimant sustained a work injury in the course of her employment with Employer, Luzerne County. Provider performed a spinal cord stimulator implant on Claimant for her work injury and submitted bills to Insurer in the amount of $134,016.13 for nine services. Insurer issued an explanation of reimbursement form pursuant to which it paid Provider $54,231.88 and provided reason codes as to why it calculated the payment due as less than the submitted amount. Provider filed an application for fee review pursuant to Section 306(f.1)(5) of the Workers’ Compensation Act (Act). The Fee Review Section determined that the amount of reimbursement allowed to Provider pursuant to the fee schedule was $14,393.83. However, the Fee Review Section failed to acknowledge Insurer’s prior payment to Provider notwithstanding Insurer’s uploaded response to the Fee Review Section’s Letter of Investigation. The Hearing Officer determined that the record established that the Provider neither supplied proper documentation to the Fee Review Section to support its billing, nor provided notations in its Application for Fee Review consistent with the notations it made in its actual uploaded billing. The Hearing Officer concluded that Insurer proved by a preponderance of the evidence that it properly reimbursed Provider, but that Insurer had made an overpayment in the amount of $39,838.05. Accordingly, the Hearing Officer issued an adjudication affirming as modified the Fee Review Section’s administrative decision and directed Provider to reimburse Insurer in the amount of the found overpayment ($39,838.05), plus statutory interest.

Holding:

The fee review process only permits providers to challenge underpayments or denials of payment. It does not permit insurers to use the fee review process to obtain reimbursement of an overpayment. In the administrative decision at issue, the Fee Review Section did not opine one way or the other on whether the amount it determined to be due had already been paid. Consequently, any overpayment was the result of Insurer’s error at the billing stage, not that of any order of the Fee Review Section. The net result is that an insurer is simply stuck with its own improvidence when it pays too much in the first instance during the billing process. Regulations must be construed in accordance with the statute that authorized them. The fee review process is limited to the amount and/or timeliness of the payment from the employer or insurer. Consequently, the regulations promulgated thereunder must be interpreted with that limitation in mind. In a utilization review case, the remedies under the Act are limited to those created by the General Assembly and courts are precluded from engrafting remedies in the absence of statutory support. While the Fee Review Section and the Hearing Officer properly determined the fact and amount of the overpayment, in the absence of legislative authority permitting the Bureau to direct a provider to reimburse an insurer for an overpayment of fees for medical services, neither the Hearing Officer nor this Court may create such authority in contravention of the Act.

Reversed.

SUFFICIENCY OF THE WCJ’S FINDINGS AND CONCLUSIONS

The Pennsylvania State University v. John Ward (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 22, 2023

Issues:

Whether Claimant was acting in the course of his employment when he monitored his fiancée’s custody exchange, the personal animus doctrine applies and should the Board have remanded to have the WCJ justify the findings that both fact witnesses testified credibly?

Background:

Penn State employed both claimant as a maintenance worker, and his fiancée, who was divorced. Claimant’s fiancée typically met her ex-husband in a Penn State parking lot to exchange custody of their minor child. Claimant was at Penn State when he witnessed his fiancée’s ex-husband kill her and then commit suicide. Claimant filed a claim petition requesting temporary total disability benefits. The parties stipulated that Claimant witnessed the murder/suicide and consequently suffered post-traumatic stress disorder.
Before the WCJ, Claimant testified that he was leaving the dorm and was on his way to the dining hall office to check his mailbox for maintenance requests when he saw his fiancée killed. In contrast, per Employer’s witness, Claimant was not on his way to the office, but was watching the custody exchange from the second floor when the shooting occurred, which prompted Claimant to run downstairs as fast as he could. The WCJ denied the petition because Claimant failed to establish that he was injured during an activity that furthered the interests of Penn State. The WCJ held that Claimant “failed to establish that his monitoring of, and involvement with, the custody exchange giving rise to this claim has been related to his employment, and that this activity advanced Penn State’s interests” and that Claimant failed to establish that his actions fell within the scope of the personal comfort doctrine, and that Penn State successfully invoked the personal animus defense because the ex-husband targeted Claimant. The Board reversed, reasoning that Claimant properly invoked the personal comfort doctrine and that Penn State failed to establish the affirmative defense of personal animus.

Holding:

Under section 422(a) of the Act, the WCJ must issue a “reasoned decision” so that this Court does not have to ‘imagine’ the reasons why a WCJ finds that the conflicting testimony of one witness was more credible than the testimony of another witness. The WCJ had to reconcile conflicting testimony, regarding Employer’s witness’ deposition testimony and Claimant’s in-person testimony. If the WCJ credited the former, then Claimant’s action was unrelated to his employment. But if the WCJ credited the latter, then the WCJ presumably would have held that Claimant was acting in the course of his employment, and not monitoring the custody exchange, when he witnessed his fiancée’s shooting, and the WCJ would have granted the claim petition. Because of the WCJ’s conflicting credibility findings and failure to detail which testimony the WCJ found credible, the Board should have remanded to the WCJ for clarification. Absent the WCJ’s clarification, the Court could not reconcile the WCJ’s credibility determinations with the WCJ’s denial of relief. The Court vacated the Board’s decisions and remanded to the Board with instructions to vacate the WCJ’s decisions and remand to the WCJ to draft a new, reasoned, decision.

Vacated and Remanded.

Nancy Wiggins v. Urban Outfitters, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 22, 2023

Issue:

Whether the Employer’s medical evidence constituted substantial evidence to support the Termination Petition and whether a factual misstatement and a missing finding of fact require a remand?

Background:

Claimant petitioned the Court for review of the Workers’ Compensation Appeal Board’s (Board) Order affirming the WC Judge’s (WCJ) decision that granted in part and denied in part Claimant’s Review Petition and granted Employer’s Termination Petition.
Claimant sustained a left shoulder injury while stacking heavy boxes at work. Employer accepted Claimant’s injury. Claimant filed a Review Petition alleging that she injured other areas while receiving physical therapy for her work-related injury. Employer filed the Termination Petition alleging that, based on the IME, Claimant had fully recovered from her work injury. The WCJ granted Claimant’s Review Petition in part, as well as granting Employer’s Termination Petition. Claimant appealed to the Board and the Board affirmed the WCJ’s decision.

Holding:

For purposes of appellate review, it is irrelevant whether there is evidence to support contrary findings; if substantial evidence supports the WCJ’s necessary findings, those findings will not be disturbed on appeal. As required, the WCJ outlined the evidence considered, stated the credible evidence relied upon, and established the reasons underlying the ultimate decision. Consistent with his authority as the ultimate finder of fact and the sole authority for determining the weight and credibility of evidence, the WCJ evaluated witness credibility and, where it conflicted, credited the testimony that Claimant was fully recovered. Substantial medical evidence supports the WCJ’s decision with respect to Employer’s Termination Petition. Reviewing the record as whole, the WCJ’s incorrect inclusion of a certain record in the list of causally-related medical treatment was undoubtedly a mistake. Therefore, the Court declined to remand for further explanation by the WCJ. Further, despite the fact that there was no Finding of Fact No. 8, the factual findings necessary to support the WCJ’s decision are not missing. The omitted Finding of Fact No. 8 was simply a typographical error, and the Board did not err by affirming the WCJ’s decision without remanding to the WCJ for clarification.

Affirmed.

JUDICIAL DISCRETION

Philadelphia Eagles, Inc. v. Emmanuel Acho (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 3, 2023

Issues:

Whether the evidence relied upon by the WCJ to award benefits for various periods was insufficient arbitrary and capricious? Whether the medical testimony of Claimant’s expert was competent, credible, or unequivocal in establishing a compensable injury after August 23, 2015?

Background:

Claimant is a 28-year-old former linebacker for Employer. He played for Employer in 2013 and 2014 and again was on Employer’s roster in 2015. On August 11, 2015, while practicing, Claimant injured his thumb. On August 23, 2022, Claimant fractured the same thumb during practice. Claimant could not participate in any physical activity for approximately three weeks after the surgery. Claimant was released from Employer’s roster immediately after his surgery. Pursuant to an injury settlement agreement executed according to the applicable collective bargaining agreement, Claimant received three weeks of pay. After physical rehabilitation, Claimant was cleared to play football. Claimant re-signed with Employer on November 9 or 10, 2015. Claimant’s thumb remained symptomatic, however, and he did not play in any games in 2015. He was released by Employer approximately 16 days after being re-signed. Claimant thereafter attempted to try out for other teams but found that he could not play at his pre-injury level. He was not offered any positions on any other team and has not played professional football again. Claimant believes that his thumb injury made him physically unable to play football at a high level, which is why he was never signed by any team after Employer released him in 2015. He did not receive any specific treatment for his injury until 2018, when he saw a physician’s assistant at a federal workers’ compensation facility. He nevertheless had not received any formal medical treatment for his thumb from 2015, until 2019, when he came under the care of his medical expert. On August 20, 2018, Claimant filed a Claim Petition related to his August 23, 2015 injury. He also filed a Petition to Reinstate and Review Benefits related to the August 11, 2015 injury.
Employer in turn filed Petitions to Terminate benefits with regard to both injuries. The WCJ credited Claimant’s and his medical expert’s testimony to the extent that he found that Claimant’s thumb injury rendered him unable to perform his pre-injury linebacker job until he was found by employer’s medical expert to be fully recovered as of September 12, 2019, based upon an IME. The WCJ further credited claimant’s expert’s testimony that Claimant’s injury would interfere with Claimant’s ability to perform his linebacker job to a degree that would make it difficult to play at the level required in the NFL. The WCJ accordingly granted Claimant partial disability benefits until September 12, 2019, and granted Employer a three-week credit for the injury settlement reached in 2015. The WCJ granted Employer’s termination petition as of September 12, 2019.

Holding:

Substantial evidence supports an award of total disability benefits for the period between August 23, 2015, and November 10, 2015. Further, the WCJ’s award of benefits from November 10, 2015 through September 12, 2019 was not based on an arbitrary and capricious finding that Claimant’s injury was compensable during that period. There is substantial evidence in the record that Claimant was released from Employer’s roster in August 2015 because of his injury. Claimant testified that he experienced ongoing pain, tenderness, and related limitations in his ability to play. Although he tried out with other teams, none hired him. When he was re-signed with Employer on November 9 or 10, 2015, he practiced with a brace and wrapping on his right hand, and his participation was limited to special teams and scouting. He again was released by Employer 16 days later and did not secure employment with any other NFL teams. It was not necessary to assume that other teams were disinterested in Claimant due to his injury. The evidence of his success and ranking as a professional linebacker and/or special teams player was not meaningfully controverted by Employer, and the WCJ was free to find that Claimant played at a high, exceptional level prior to August 23, 2015. Any detraction from that level of play due to injury could and apparently did tarnish and ultimately eliminate Claimant’s prospects to play as a high-performance linebacker in the NFL. Claimant’s medical testimony noted that the condition of Claimant’s thumb since the injury was consistent with his complaints of pain and tenderness, which would cause limitations in his ability to engage in physical activity. Finally, Claimant’s expert’s testimony was not incompetent, noncredible, or equivocal. He testified that he reviewed Claimant’s medical records, including the records from Dr. Culp and the MRI images and based on those records and his own evaluation of Claimant, he identified the displacement and post- traumatic arthritis in Claimant’s thumb, both of which he attributed to the August 23, 2015 injury. He further opined that those conditions would interfere with Claimant’s ability to tackle and perform at the professional level. Also, Claimant’s expert’s opinions were not equivocal as they were not based only upon possibilities, vague, or left any doubt. His testimony was consistent with all of Claimant’s medical records and Claimant’s testimony. He unequivocally supports the award of benefits in this matter.
The WCJ’s decision is free of errors and supported by substantial evidence and did not arbitrarily or capriciously disregard any competent evidence.

Affirmed.

Diana Snyder v. Co. of Allegheny and UPMC Benefit Mgmt. Serv. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 3, 2023

Issue:

Whether the WCAB erred in affirming the WCJ’s denial of the claimant’s claim petition?

Background:

Claimant filed a Claim Petition asserting that on March 4, 2020, she sustained a disabling work-related injury when reaching overhead into a patient’s closet to obtain a piece of clothing for the patient. Employer issued a Notice of Compensation Denial on March 11, 2020, asserting that Claimant had not sustained a work-related injury, and this litigation ensued. The WCJ credited Claimant’s testimony of the incident and her symptoms. However, the WCJ rejected as non-credible claimant’s expert’s testimony that the incident caused Claimant’s symptoms and ultimate need for two surgeries. The WCJ specifically pointed to her expert’s opinion that Claimant’s condition was caused by a twisting motion of her neck during the incident even though Claimant testified expressly that she had not twisted her neck. By contrast, the WCJ credited employer’s expert’s testimony as supported by and consistent with the medical records and Claimant’s testimony. The WCJ therefore concluded that Claimant had failed to establish a causal relation between the work incident and her injury and disability and denied her claim petition. The Board affirmed.

Holding:

A claimant has the burden of proving all necessary elements to support an award in a claim petition proceeding. The WCJ has exclusive province over questions of credibility and a reviewing court is not to reweigh the evidence or review the credibility of witnesses. If a medical expert’s opinion depends on false or incorrect information or an assumption contrary to the facts and evidence, such as a mistaken understanding of the work incident, it can be deemed incompetent. However, if the medical expert’s opinion is based on an incomplete (rather than false or inaccurate) grasp of the facts, the defect will go to the WCJ’s evaluation of the weight of the expert’s testimony, which may not be disturbed on appeal. The WCJ found that claimant’s expert’s testimony was undermined by a fatally incomplete understanding of the mechanism of injury in this case. The WCJ found this expert’s subsequent opinion was also inconsistent with Claimant’s credible and specific testimony. The WCJ therefore rejected as non-credible the opinion that Claimant’s injury was caused by the incident. The WCJ therefore concluded that Claimant had not established a causal relationship between the incident as she described it and her subsequent disability. This is properly characterized as a lack of competence in the testimony. If a physician bases his opinion of causation in part on the temporal proximity of an event, his opinion will be deemed competent if he provides other factors to support his position. Here, however, the only other aspect of Claimant’s expert’s causation testimony was his misunderstanding of the incident and mechanism of injury. Therefore, his causation opinion could not be rehabilitated. The WCJ was within his discretion to give this testimony little or even no weight and credibility.

Affirmed.

SUBROGATION – THE RIGHT TO INTERVENE

Michele Loftus and Richard Loftus, Her Husband v. Katrina Decker
Superior Court of Pennsylvania – Published Opinion
Decided: February 1, 2023

Issue:

Whether the trial court abused its discretion and committed an error of law when it denied Appellant’s petition to intervene without a hearing?

Background:

Appellant Eastern Alliance Insurance Group appeals from the order denying its petition to intervene in an action initiated by Michelle and Richard Loftus (collectively, the Loftuses) in a praecipe for writ of summons against Katrina Decker (Decker). On September 25, 2020, the Loftuses filed a praecipe for writ of summons naming Decker as the defendant. On February 25, 2021, Appellant filed a petition to intervene. In its petition, Appellant asserted that Michelle Loftus (Loftus) was employed as a bus driver for Appellant’s insured, and that Loftus had sustained injuries in a work-related auto accident caused by Decker. Loftus previously sought and received workers’ compensation benefits from Appellant, which it claimed has a statutory lien against any damages Loftus may recover from Decker. It is undisputed that the Loftuses have not filed a complaint. Appellant asserts that intervention is necessary to protect its workers’ compensation lien because the Loftuses refuse to accept Decker’s insurance carrier’s offer to settle the case, and are prepared to abandon litigation and not seek recovery against Decker, unless Appellant agrees to compromise its statutory lien rights. Appellant contends that it is necessary for it to intervene to prosecute this matter and protect its statutory lien rights, which are not adequately represented by the Loftuses or Decker.The trial court denied Appellant’s petition to intervene. Appellant filed the instant appeal.

Holding:

Appellant did not yet have a legal interest or important right to protect. Therefore, Appellant’s petition to intervene does not meet the second prong of the test for an appealable collateral order. With respect to Appellant’s claim concerning its subrogation rights, Section 319 of the Workers’ Compensation Act, does not bestow upon any party, directly or indirectly, the right to take any action against a third-party tortfeasor. Instead, the PA Supreme Court has held that Section 319 provides that only the employee can pursue damages from the tortfeasor, and the insurer has no right to seek a recovery or compel an employee to seek recovery to satisfy a statutory lien under the Workers’ Compensation Act. Under Section 319, an insurance carrier has no independent cause of action for indemnification/contribution from the negligent party who caused the insurance carrier to pay the injured employee benefits. The right of recovery flows exclusively through the employee’s decision alone, that a claim must be brought with the employee’s participation, and that there is no authority, statutory or otherwise, permitting an insurer to pursue employee’s cause of action against a tortfeasor without the employee’s voluntary participation as a party plaintiff or the contractual assignment of her claim. Appellant cannot intervene and file a complaint under the guise that it is not independently seeking to recover its lien. Further, it only seeks to intervene in the action commenced by the Loftuses’ praecipe for writ of summons. There is no complaint, there are no specific claims, facts, or prayers for relief. To the extent Appellant attempts to define and maintain a tort action on behalf of the Loftuses in an effort to protect its own rights, it is precluded from doing so. Appellant does not have a legally enforceable interest to file suit on its own behalf or to compel the Loftuses to file a complaint against Decker to protect Appellant’s subrogation lien. Accordingly, Appellant has no legally enforceable interest and no right that needs to be protected. The order underlying this appeal was not an appealable collateral order.

Appeal Quashed.

DISSENTING OPINION

Judge Murray filed a dissent arguing that the facts alleged in Appellant’s petition meet the requirements for a collateral appeal under Pennsylvania Rule of Appellate Procedure 313.

EXCLUSIVITY – LATENT OCCUPATIONAL DISEASES

Brad Lee Herold, as Exec. Of the Est. of William L. Herold v. University Of Pittsburgh, et al.
Commonwealth Court of Pennsylvania – Published Opinion
Decided: February 16, 2023

Issue:

Whether the common law claims of William L. Herold (decedent), which relate to his workplace exposure to asbestos and development of mesothelioma, fall within the purview of The Pennsylvania Occupational Disease Act (ODA), thus requiring that he file his claims with the Workers’ Compensation Board (Board)?

Background:

Decedent was employed by the University from 1976 until he retired in 2015, as a stationary engineer. During his employment, Decedent was exposed to asbestos until 2004. In April 2019, approximately 15 years after his last exposure to asbestos, he was diagnosed with mesothelioma, a cancer in the lining of the lung. Expert evidence attributed the cause of Decedent’s mesothelioma to his asbestos exposures. In October 2019, Decedent commenced this action in the trial court to recover damages arising from his development of mesothelioma. The University sought summary judgment based on Section 303 of the ODA, 77 P.S. §1403. Section 303 is an “exclusivity provision,” which purports to limit compensation for an occupational disease as provided under the ODA, which is administered solely by the Board. The trial court denied the University summary judgment, reasoning: (1) the ODA defines an occupational disease as one that occurs within 4 years of last exposure to the hazards of such disease; (2) Herold’s last exposure to asbestos occurred 15 years prior to his diagnosis, far longer than the 4-year limitations period defined in the ODA; and (3) an ODA “savings clause,” which provides additional relief beyond the 4-year period for certain enumerated diseases, was inapplicable. Thus, the trial court concluded, “the ODA does not apply,” and Herold could pursue a civil claim.

Holding:

The WCA and ODA together provide a comprehensive, no-fault system of compensation for employees injured in the course of their employment. However, under either statutory regime, these limitations periods operate as a de facto exclusion of coverage for certain occupational diseases that are prone to latency. Therefore, Herold’s civil claims were not subject to the ODA exclusivity provision. Absent compensable disability or death as defined by the ODA, an injured employee has not surrendered the rights to pursue compensation in a manner of their choosing. The exclusivity provision does not apply to Herold’s claims, and the Board lacks exclusive jurisdiction to adjudicate these claims. The legislature did not intend for employees suffering from an occupational disease that manifests outside the ODA’s 4-year limitations period to surrender their rights as indicated in the ODA’s exclusivity provision. Further, the Doctrine of Primary Jurisdiction is Inapplicable. Herold is not required to present his claims to the Board in the first instance. Where the matter is not one peculiarly within the agency’s area of expertise but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility. Thus, the Court recognized an exception to the exclusive jurisdiction of the Board to adjudicate claims asserted by an employee diagnosed with an occupational disease more than 4 years after the employee’s last workplace exposure to the hazards of that disease. Also, because the issues relevant to the latency of an employee’s occupational disease are not peculiarly within the Board’s expertise, the employee was permitted to commence civil proceedings in an appropriate court of original jurisdiction.

Affirmed. Case remanded to the trial court.

PETITION FOR ALLOWANCE OF APPEAL FROM THE ORDER OF THE COMMONWEALTH COURT

Vincent Sicilia v. API Roofers Advantage Program (WCAB)
Supreme Court of Pennsylvania – Order GRANTING Allowance of Appeal.
Decided: February 15, 2023

The PA Supreme Court granted the Petition for Allowance of Appeal of Employer, API Roofers Advantage Program.

Issues to be decided:

(1) Did the Commonwealth Court impermissibly expand the holdings in Duffey v. WCAB (Trola-Dyne, Inc.), so as to usurp the authority of the Workers’ Compensation Judge to determine the nature and extent of the compensable injury?
(2) Did the Commonwealth Court err in reversing the Workers’ Compensation Appeal Board by substituting its assessment of the credible testimony for that of the fact finder?

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
01/31/2023 – 02/28/2023

SUBSTANTIAL CONTRIBUTING FACTOR STANDARD

Lois Simpson v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division
No. A-3728-20; 2023 WL 1489674
Decided: 02/03/2023

Background:

On September 27, 2017, Simpson applied for ADR benefits, asserting that on December 1, 2015 she tripped over a student’s foot and injured her back at work. She had since had three surgeries and lived in “constant pain.” In July 2018, the Board denied the application for accidental disability, but granted her ordinary disability benefits. The Board determined that her disability was the result of a pre-existing condition or a pre- existing condition that was aggravated or accelerated by the work incident. Simpson challenged, and an ALJ had hearings in November 2020.

Simpson testified at the hearings, and acknowledged that prior to the 2015 injury, she experienced back pain when she fell at work in 2012 but returned to her job and was able to do it with no problems. Dr. Arthur Becan, an orthopedic surgeon, testified on her behalf. He opined that her disability was the direct result of her 2015 injury and subsequent complications from surgery. He explained that Simpson was diagnosed with a lumbar sprain and radiculopathy after her fall and developed a herniated disc. Dr. Becan referred to a 2016 MRI showing a herniated disc, and a 2013 MRI showed mild to moderate spinal stenosis but no disc injury.

Dr. Hutter testified for the Board. He opined that Simpson was totally and permanently disabled from her job as a result of a progression of degenerative changes and the 2015 injury was not the primary cause of her disability. His March and May 2018 reports indicated that a note from Dr. Shamash stated that the 2016 MRI demonstrated a disc herniation at L5-S1 with some pressure on the S1 nerve root and stenosis at L4-5. The ALJ filed an initial decision concluding that Simpson had met her burden in demonstrating that she was eligible for accidental disability benefits and that her disability was substantially caused by the 2015 accident and rejected the Board’s denial of ADR benefits.

The Board rejected the ALJ’s decision and concluded that the objective medical evidence established that her stenosis was the significant or substantial contributing cause of Simpson’s disability, not the 2015 incident. The Board also rejected the view that her stenosis was asymptomatic before 2015, pointing to the treatment she received following the 2012 injury. The Board asserted that when a person’s underlying condition is aggravated by a traumatic event, that person is only eligible for ordinary retirement benefits. The Board rejected the ALJ’s initial decision and denied her ADR benefits. This appeal followed.

Holding:

The Superior Court acknowledged that its ADR jurisprudence needed a course correction because its prior rulings led to a series of inconsistent decisions regarding the traumatic event standard. The Court organized its prior decisions into two strands. The first strand reaffirmed that a traumatic event can occur during usual work effort, but combined with pre-existing disease cannot be the traumatic event. The second strand narrowed what qualifies as a traumatic event to only the cases involving an extreme amount of force or violence. The Court concluded that the first strand represented the correct interpretation of legislative intent.

The Board’s finding that Simpson’s stenosis was symptomatic before her 2015 injury was essential to its determination that the Petrucelli case did not apply, and her disability was not the “direct result” of her 2015 fall. This court concluded that that finding is not supported by the record. This court held that the Board’s findings in this regard were contradicted by the record, and that in light of Dr. Hutter’s testimony that Simpson may never have needed surgery absent the fall, the Board’s decision to deny her ADR benefits “lacks fair support in the record.”

The court reversed the Board’s decision denying Simpson ADR benefits because, the “direct result” test was legally satisfied by Simpson. The court held that the Board’s finding that Simpson’s stenosis was symptomatic before her fall in 2015 is not supported by the record and the Board erroneously rejected Dr. Becan’s testimony based on the incorrect assumption that he relied only on the subjective complaints of Simpson.

Reversed.

John Caldwell v. Board of Trustees, Public employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-3353-20; 2023 WL 2147296
Decided: 02/22/2023

Background:

Petitioner was a corrections officer at Bayside State Prison. In November 2016, petitioner slipped and hit his knee on a steel bench at work. He went to the infirmary and returned to work, he later had an MRI, then two months later had an arthroscopy, after which he returned to work with no restrictions, then in July 2018, had a partial knee replacement.
Petitioner applied for Accidental Disability Pension in October 2018. The Board found petitioner’s disability was an aggravation of a pre-existing condition and denied the application. Petitioner appealed and the matter was heard by an ALJ in August 2020. Dr. David Weiss testified for the petitioner, and Dr. Andrew Hutter testified for the Board.

The ALJ determined that petitioner’s permanent and total disability was caused by pre- existing osteoarthritis present in his left knee at the time of his injury. The ALJ also concluded that the November 2016 fall resulted in the aggravation of a pre-existing condition. The ALJ finally concluded that petitioner failed to sustain his burden of proof showing he was entitled to accidental disability benefits. The Board adopted the ALJ’s findings and concluded that petitioner was not entitled to accidental disability benefits, only ordinary disability benefits. In his appeal, petitioner argues that the Board erred by admitting the expert testimony of Dr. Hutter because it was a net opinion, and disregarding is testimony, he sustained the burden of proof.

Holding:

With regard to the “net opinion” argument, cases have held that expert opinion may be based on the expert’s personal observations, or evidence admitted at the trial, or data relied on by the expert which is the type of data normally relied on by experts in forming opinions on the same subject. The court held that the Board adopted the findings of the ALJ, who found Dr. Hutter was an expert in orthopedic surgery, personally examined the petitioner, reviewed petitioner’s medical records, including the MRI. Therefore, there is ample evidence in the record to conclude that Dr. Hutter’s testimony was supported by facts obtained from his personal observations, evidence admitted at trial, and data normally relied upon by experts.

Petitioner also argued that the 2016 fall caused his non-symptomatic pre-existing condition to morph into a total disability. This court stated that the crux of the inquiry is whether, during the regular performance of his job, an unexpected happening, which was not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the petitioner’s permanent and total disability. The court held that the petitioner in this matter had significant pre-existing osteoarthritis in his knee at the time of the fall, and both experts agreed that this occurred over time and was not a result of the accident.

This court held that the injury was not the substantial contributing cause of his disability, and instead it was a combination of the significant degeneration that was already present in the knee, plus the injury. Therefore, the court held that petitioner failed to meet his burden proving that the Board’s final decision was unreasonable, as their conclusions are supported by sufficient and credible evidence.

Affirmed.

ALLOCATION OF FAULT

Liberty Insurance Corp. and LM Insurance Group v. Techdan, LLC, Exterior Erecting Services, Inc., Daniel Fisher, Robert Dunlap, and Carol Junz
Supreme Court of New Jersey
A-52 September Term 2021; 2023 WL 1999560
Decided: 02/15/2023

Background:

Techdan and Exterior were New Jersey entities who engaged in the construction of exterior walls. Dunlap and Fisher were LLC members of Techdan, and Dunlap was an officer and sole shareholder of Exterior. Fisher held himself out as part owner of Exterior, and Junz controlled both entities and was responsible for securing workers’ compensation insurance on their behalf. Liberty issued workers’ compensation policies to Techdan between March 12, 2004 AND March 12, 2007 and alleges that defendants misrepresented the relationship between Techdan and Exterior, as well as the ownership structure of the two entities, and provided Liberty’s auditors with fraudulent payroll records to reduce the premiums charged by Liberty.

Liberty filed this action, asserting fraud against all defendants under the IFPA, as well as workers’ compensation fraud and common-law fraud, breach of contract against Techdan and Exterior, and aiding and abetting and civil conspiracy against Dunlap, Fisher, and Junz. Liberty asked for compensatory damages, treble damages pursuant to the IFPA, attorney’s fees and costs, and punitive damages. After discovery, Liberty moved for summary judgment. Partial summary judgment was granted as to the IFPA claim for insurance fraud against Techdan, Exterior, Dunlap, and Fisher. Partial summary judgment was also granted as to the workers’ compensation fraud claim against all defendants, as well as to the breach of contract claim against Techdan and Exterior.

The jury found Liberty proved insurance fraud under the IFPA against Exterior and Junz; that Techdan, Exterior, Dunlap, and Junz (but not Fisher) had engaged in a pattern of insurance fraud under N.J.S.A 17:33A-7(b); that Liberty had proven its workers’ compensation fraud claim against Exterior, Dunlap, and Junz; Liberty had proven common-law fraud against all defendants; its claim for aiding and abetting against Dunlap, Fisher, and Junz; its claim for civil conspiracy against Dunlap and Junz; and its claim that Dunlap should be found personally liable.

In motions for reconsideration and a new trial, defendants asserted that the trial court should have charged the jury to allocate fault under the CNA and should have given an “ultimate outcome” charge explaining the consequences of findings that defendants committed fraud under the IFPA. The trial court held that it was not required to give these charges, as there was no evidence Liberty was at fault and defendants did not file crossclaims for contribution or indemnification, and denied the motion for reconsideration and a new trial.

Defendants appealed. The Appellate Division held that the trial court erred when it imposed joint and several liability on defendants rather than directing the jury to allocate percentages of fault in accordance with the CNA. The Appellate Division also held that the trial court should have given the jury an ultimate outcome charge, and although defendants did not raise the CNA or ultimate outcome issues until their motion for reconsideration, the trial court’s cumulative errors gave rise to a miscarriage of justice and remanded the matter for a new trial. Defendants filed petitions for certification, and Liberty filed a cross-petition for certification. Defendants’ petitions were denied, but Liberty’s cross-petition was granted.

Liberty argued that the Appellate Division improperly held that all claims in this matter were subject to the CNA. Liberty further asserts that there was no reason for the trial court to direct the jury to allocate fault under the CNA because defendants did not seek crossclaims or an allocation of a percentage of fault against each other. Defendants contend that the Appellate Division’s judgment should be affirmed, and the appellate court properly found that the CNA directs all claims asserted in this matter.

Holding:

The court explained that the CNA codifies the principle of comparative negligence, and provides the framework for allocation of fault when multiple parties are alleged to have contributed to a plaintiff’s harm. The court held that defendants do not need to file crossclaims against each other for the court to allocate fault, and plain language supports that the Legislature’s intent was that in actions covered by the statute, the factfinder’s allocation of fault and the court’s molding of the verdict are mandatory. The court discusses the history of the CNA, its amendment in 1995, and the applicable case law, and concluded that the CNA governs a broad range of civil causes of action, including statutory and common-law claims based on intentional conduct as well as negligence.

The court then turns to an analysis and brief explanation of the IFPA, and concludes that a successful claimant in a civil action under the IFPA “shall recover treble damages” if the court determines that there was a pattern of violating the statute by the defendants.

Finally, the court focused on what they considered the main question raised on appeal, which is whether Liberty’s IFPA and WCA workers’ compensation fraud claims are subject to the CNA’s apportionment procedure. The court held that the IFPA claim in this matter is a statutory fraud claim premised on intentional conduct, which falls under the Legislature’s broad definition of “negligence actions.” This court also held that Liberty’s claim for workers’ compensation fraud falls under the category of intentional torts that case law has held is encompassed by the CNA. The court stated that nothing in the IFPA or WCA’s fraud provision implies that the Legislature intended to exempt statutory fraud claims from the CNA or modify the statute’s allocation-of-fault procedure in such cases. This court therefore agrees with the Appellate Division that the trial court erred when it imposed joint and several liability on defendants instead of instructing the jury based on N.J.S.A. 2A:15-5.2(a) and molding the judgment based on the jury’s findings.

This court also held that based on case law, they disagree with the Appellate Division’s view that the trial court committed reversible error when it declined to give the jury an “ultimate outcome” charge, and it was within the discretion of the trial court to give the ultimate outcome charge or decline to do so. Therefore, the trial court’s decision to not give the ultimate outcome charge was not plain error.

This court agreed with the Appellate Division that this matter should be remanded for a new trial, however, disagrees with the scope of the new trial. This court believes the appropriate remedy to be a retrial where the trial court will instruct the jury to allocate a percentage of fault under N.J.S.A. 2A:15-5.2(a)(2) and there is no need to revisit the determination made regarding liability and the finding of a pattern of insurance fraud, as the jury found the elements of the claims to be established under the burden of proof.
This court also stated that the trial court should not instruct the jury on remand to redetermine the total amount of compensatory damages and should not disclose the total amount of compensatory damages awarded by the first jury, and the new jury will not be bound by or informed of the first jury’s decision not to impose compensatory damages on Dunlap, Fisher, and Junz. Finally, this court stated that on remand, the trial court should instruct the jury to determine for each defendant the percentage of the total fault allocated to that defendant, with the total fault adding up to 100%, and the court should then mold the judgment based on the jury’s findings, trebling any part of the compensatory damage award that the jury allocates to Techdan, Exterior, Dunlap, and Junz who engaged in a pattern of insurance fraud under the IFPA. The trial court should also address Liberty’s claim for an award of counsel fees and costs.

Affirmed in part, Reversed in part.

CASE SUMMARIES 12/22/2022 – 1/25/2023

Feb 1, 2023

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
12/22/2022 – 1/25/2023

IMPAIRMENT RATING EVALUATION

Leo DeLuca v. Cservak Management Services, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 22, 2022

Issue:

Whether the Board erred in affirming the modification of disability status because Act 111 is unconstitutional?

Background:

In 2010 Claimant sustained work-related injuries while working for Employer. Employer accepted liability for payment of total disability benefits as of January 2015. On November 7, 2019, a physician conducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Second Printing (Guides), which yielded a whole-body impairment rating of 28%. Employer filed a modification petition, seeking to change Claimant’s disability status from total to partial on the basis of the November 2019 IRE. The WCJ granted the requested modification, declaring Claimant’s change in disability status from total to partial effective as of the date of the IRE. The Board affirmed.

Holding:

Act 111 remediated the delegation of legislative authority deemed unconstitutional by the Protz II Court. It is not delegating its authority to legislate. The General Assembly made a policy decision regarding the standards that will apply to IREs in the Commonwealth going forward. For the reasons already repeatedly articulated by the Court, in a multitude of prior cases, Claimant’s constitutional challenge is meritless. Claimant has no vested right to benefits as calculated at the time of injury as there are reasonable expectations under the WC Act that benefits may change. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial.
Further, Act 111 is clear that weeks of temporary total disability paid by an employer/insurer prior to the enactment of Act 111 count as credit against an employer’s new obligations under Act 111.

Affirmed.

Susan Motzer v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 29, 2022

Issue:

Whether the retroactive application of Act 111 is unconstitutional?

Background:

Claimant suffered a work-related injury to her knee. In 2020, Employer filed a modification petition alleging that Claimant’s benefit status must be modified to partial based upon an IRE which determined a whole-body impairment rating of 8%. Claimant did not present any testimony and stated that she would only be challenging the constitutionality of Act 111. The WCJ held that Employer established that Claimant had reached MMI and had a whole-body impairment of 8%. Therefore, the WCJ granted Employer’s petition, modifying Claimant’s benefits to partial disability status effective October 20, 2020. Claimant appealed to the Board, which affirmed.

Holding:

The court rejected Claimant’s arguments, based on its reasoning in previous cases. Employer sought to modify Claimant’s benefits based on an IRE obtained after the effective date of Act 111. The Employer was entitled to do so.

Affirmed.

Joseph Carnevale v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 29, 2022

Issue:

Whether Employer’s IRE modification petition was barred by res judicata?

Background:

In 2011, a physician performed an IRE on Claimant, applying the most recent edition of the AMA Guides under the former Section 306(a.2) of the Act. His disability status was modified from “total” to “partial,” effective the IRE date. In 2017, Claimant sought reinstatement of total disability (TTD) benefits based on the unconstitutional IRE process that had served as a basis to modify his disability status. In 2020, the WCJ granted a Reinstatement. After Act 111, a new IRE was performed on Claimant. This new IRE was conducted using the Sixth Edition of the AMA Guides under the new guidelines promulgated by Section 306(a.3), and the results yielded an 18% whole person impairment rating. Employer filed a petition to modify Claimant’s benefits from TTD to partial disability (TPD) benefits. The WCJ granted Employer’s petition and modified Claimant’s benefits as of the new IRE date, February 4, 2020. The Board affirmed.

Holding:

After 104 weeks of TTD benefits, an employer may request that a claimant submit to an IRE. Here, Claimant’s receipt of TTD benefits surpassed 104 weeks. Thereafter, Employer requested a new IRE, which revealed that Claimant maintained an 18% total body impairment rating. Thus, there was no error in the WCJ’s decision to grant Employer’s modification petition to modify benefits, based on uncontroverted evidence of an impairment rating below the statutory threshold. The instant matter is not barred by res judicata. In the Reinstatement Adjudication, the WCJ resolved the constitutional infirmity of Claimant’s changed disability status based on the former IRE process. The “sole issue” was whether the WCJ applied the correct date for reinstatement of benefits. There was no contest as to whether Claimant was eligible for said benefits. The present case assessed Claimant’s present disability status and whether Employer satisfied its burden of proving modification was appropriate. The causes of action involve different burdens of proof, facts, and issues.

Affirmed.

Julius J. Cobbs, III v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decision: January 9, 2023

Issue:

Whether Act 111, relating to IREs, is unconstitutional?

Background:

In 2013 Claimant was injured in the course and scope of his employment for Employer’s Water Department. In 2018 Employer acknowledged Claimant’s entitlement to wage loss and medical benefits. In the interim, on June 20, 2017, the Pennsylvania Supreme Court issued its decision in Protz II, holding that the impairment rating evaluation (IRE) provisions contained in Section 306(a.2) of the WC Act was unconstitutional. The Pennsylvania legislature subsequently enacted Act 111, which became effective October 24, 2018. In 2020, after Claimant received 104 weeks of WC disability benefits, at Employer’s request pursuant to Section 306(a.3) of the Act, Claimant underwent an IRE which, based upon the 6th Edition AMA Guides, determined that Claimant had reached maximum medical improvement relative to his accepted work injury, and his whole person impairment was 3%. After reviewing additional records, the IRE reviewer concluded that Claimant had reached maximum medical improvement relative to his expanded work injury, and his whole person impairment rating was 17%. Employer filed the Modification Petition. The WCJ granted the Modification Petition, changing Claimant’s disability status from total to partial as of the IRE date. The Board affirmed.

Holding:

The WCJ did not err in determining that Act 111 can be applied to injuries that occurred before its October 24, 2018 effective date. The provisions of the Act allow for retroactive effect. Further, Act 111 is not an unconstitutional delegation of legislative authority. The flaw in former Section 306(a.2) of the Act was that, unlike the replacement provision of Act 111, it did not simply adopt a set of existing standards; rather, by mandating use of the most recent version of the AMA Guides, it allowed the AMA to alter the standards at will without any legislative oversight. Act 111 corrected this.
Affirmed.

CLAIM PETITION – BURDEN OF PROOF

Express Employment Professionals/Express Services, Inc. v. Isaiah Caldero (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 20, 2023
Issue:

Whether Claimant’s evidence established an ongoing disability from the time of injury to the present?

Background:

Employer was a temporary employment agency. In early July 2017, Employer placed Claimant in a laborer position at a Millwork. Four days into the job, on July 6, 2017, Claimant was injured at work. He was subsequently placed on restrictive work duties. Employer issued a Notice of Temporary Compensation Payable, describing the injury as an upper back area strain or tear. In October 2017, Claimant was released to full-duty work. Claimant did not feel capable of returning to work. Claimant filed a Claim Petition, asserting he sustained work-related injuries to his upper back that prevented him from returning to work. The WCJ found claimant and his medical expert credible and granted the Claim Petition, awarding medical and ongoing indemnity benefits to Claimant. The Board affirmed the decision and order of the WCJ.

Holding:

The WCJ relied upon substantial evidence and the Board properly affirmed the WCJ’s order. In a claim petition, the claimant must establish he sustained a work-related injury but also that such injury resulted in a disability. The claimant also must establish the length of the work-related disability. Claimant met his burden of proving an ongoing disability through his and his expert’s credited testimony. A physician’s lack of personal knowledge of a claimant’s condition before the physician treated the claimant is not fatal to a medical opinion. A medical expert is permitted to base an opinion on the medical reports of other physicians, which experts customarily rely upon in the practice of their profession. Thus, the physician’s testimony was competent and could support a finding of disability before the physician’s first examination. Even though no work restrictions appear in the medical records between October 24, 2017 and October 7, 2019, those records nonetheless indicate Claimant continued to experience chronic pain from his injuries. Claimant testified he experienced pain in his upper back throughout this period for which he sought treatment beginning in January 2018. Claimant’s medical expert’s opinion of when Claimant became disabled by the work injuries was based not only on his review of the medical records but also on his understanding of traumatic back injuries typically being worse at the beginning and improving over time. The medical expert deduced that if Claimant was unable to perform his preinjury position on October 7, 2019, he was unable to perform those duties before then as well.

Affirmed.

REINSTATEMENT PETITION – BURDEN OF PROOF

Oak HRC Suburban Woods LLC v. Carmella Burroughs (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 23, 2023

Issue:

Whether the WCJ erred in granting Claimant’s Reinstatement Petition because she failed to prove that her loss of earning power was related to her work injury?

Background:

Claimant sustained a work-related injury while employed as a Licensed Practical Nurse (LPN) by Employer. She performed modified, lighter duty for Employer before leaving employment in 2017. In 2018 Claimant returned to work with a different employer, Blue Bell Place (Blue Bell), performing light/modified office duties. In this position, her hours increased. A few months later, Claimant, who had surgery scheduled for a non-work- related condition, was terminated from Blue Bell because she had not accrued enough FMLA leave for recovery time. Following her termination from Blue Bell, Employer did not offer Claimant similar employment. In 2019, her treating physician determined that her work injuries had worsened to the point that she was totally disabled and could not work. Claimant filed for reinstatement and penalties. The WCJ granted Claimant’s Reinstatement Petition, denied Employer’s Termination Petition, and directed Employer to pay Claimant total disability benefits. The WCJ also granted Claimant’s Penalty Petitions and further awarded Claimant attorney’s fees at 50% of the total quantum meruit filings by Claimant’s counsel. The Board affirmed.

Holding:

Where a claimant seeking reinstatement of benefits has already established a work- related injury supporting an award of benefits, then causation will be presumed if the claimant can demonstrate that through no fault of his own, his earning power is once again adversely affected by his disability; and the disability which gave rise to his original claim continues. Once a claimant testifies that his or her prior work-related injury continues, the burden shifts to the employer to prove the contrary. When a claimant returns to work with restrictions attributable to a work-related injury, is subsequently laid off, and petitions for the reinstatement of benefits, the claimant is entitled to the presumption that his loss of earning power is causally related to the continuing work injury. The employer may meet its burden by showing that the loss of earnings is caused by the bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits. In the instant case, there is no question that Claimant’s original injury was work-related.
Claimant’s resulting discharge was involuntary, and substantial evidence supported this finding. The WCJ made a credibility determination that Claimant had acted in good faith. Employer does not deny its failure to offer Claimant employment. As Employer did not offer Claimant employment within her restrictions, Claimant was entitled to reinstatement of her benefits.

Affirmed.

OCCUPATIONAL DISEASE

Volunteer Fire Companies of Lower Saucon v. David Cawley (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 10, 2023

Issues:

(1) Whether Claimant provided timely notice pursuant to Section 311 of the WC Act; (2) Whether Claimant was entitled to the presumption of causation afforded by Section 301(f) of the Act; and (3) Whether Claimant met his burden of proof under Section 108(n) of the Act?

Background:

Claimant was employed as an active volunteer firefighter with Employer since 1978. Claimant was also self-employed as a small-scale project handyman since 1990. In 2015, Claimant was diagnosed with kidney cancer, and in 2016, he was diagnosed with colon/rectal cancer. On December 27, 2017, Claimant filed a Claim Petition alleging that his two types of cancer are compensable based upon exposure to Group 1 carcinogens as a volunteer firefighter under Section 108(r) of the Act. Claimant sought total disability benefits as of November 30, 2015. Claimant later amended the Claim Petition to include occupational injuries under Sections 108(n) and 301(c)(1) of the Act. The WCJ granted Claimant’s Claim Petition, concluding that Claimant sustained his burden of proving his entitlement to benefits pursuant to Sections 108(n), 108(r), 301(c)(2), and 301(f) of the Act. The Board affirmed the WCJ’s grant of the Claim Petition.

Holding:

Employer’s argument that Claimant failed to timely notify Employer of his work injury was without merit. Notice is a prerequisite for receiving WC benefits, and the claimant bears the burden of demonstrating that proper notice was given. However, there was no basis to say that Claimant should have known about the potential causal connection between his cancers and his work as a firefighter when he retained his attorney. The “discovery rule” requires more than an employee’s suspicion, intuition, or belief.
Claimant never received medical notice of the relationship between fire service and cancers until receiving his expert’s report. The WCJ accepted claimant’s testimony as credible. Therefore, substantial evidence clearly supported the WCJ’s conclusion that Claimant timely notified Employer in accordance with Section 311 of the Act. Next, Employer’s argument that the WCJ erroneously applied the statutory presumption of entitlement to compensation in accordance with section 301(f) of the Act, is without merit. Claimant served four or more years in continuous firefighting duties, and successfully passed a physical examination prior to asserting a claim, and the examination failed to reveal any evidence of the condition of cancer. The Act only required the claimant produce evidence that it is possible that the carcinogen in question caused the type of cancer with which the claimant is afflicted. It does not require the claimant to prove that the identified Group 1 carcinogen actually caused claimant’s cancer. Claimant presented Employer’s pre-PennFIRS and PennFIRS reports reflecting his firefighting since 1979. Claimant was entitled to the presumption under Section 301(f) of the Act because he produced evidence that it is possible that an IARC Group 1 carcinogen caused the type of cancers with which he was afflicted. Finally. to prove his entitlement to WC benefits under the catch-all provision in Section 108(n) of the Act, Claimant had to show that his cancers resulted from his exposure by reason of his firefighting, that the cancers were causally related to his firefighting, and that the incidence of such cancers is substantially greater in that industry or occupation than in the general population. The WCJ deemed credible Claimant’s experts’ testimony that both colon and rectal cancers are more common among firefighters.

Affirmed.

JUDICIAL DISCRETION

Deborah R. Grooms v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 23, 2023

Issue:

Whether the Board erred in affirming the WCJ’s denial of her claim petition by capriciously disregarding substantial, competent evidence of record?

Background:

Claimant filed a claim petition alleging that she sustained injury to her back and neck while working for the City of Philadelphia. After reviewing the evidence as a whole, the WCJ concluded that Claimant failed to sustain her burden of proving that she suffered a compensable work-related injury and denied the claim. The Board affirmed.

Holding:

With respect to a claim petition, the claimant bears the initial burden of proving that an injury arose in the course of employment and was related thereto. In the event there is no obvious causal connection between the alleged disability and the accident, the claimant can only establish the requisite connection by unequivocal medical testimony. The WCJ has exclusive province over questions of credibility and evidentiary weight. A credibility determination will be overturned 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. Where there is substantial evidence to support an agency’s factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence. The Board correctly affirmed the WCJ’s determination that Claimant failed to meet her burden of establishing that she sustained a compensable work-related injury. Claimant failed to establish that the WCJ’s credibility determinations were arbitrary and capricious, fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational.

Affirmed.

REIMBURSEMENT – OF AN OVERPAYMENT

John P. Lingelbach, Jr. v. Cummings Bridgeway, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 4, 2023

Issue:

Whether the Board erred in determining that Employer could recoup a non-fault overpayment from Claimant’s future indemnity benefits?

Background:

Claimant injured his right knee while working for Employer. Claimant initially received temporary total disability (TTD) benefits at a rate of $683.24 per week. In response to Employer’s Petition to Modify Compensation Benefits, a WCJ issued a decision and order, in 2018, in which she reduced Claimant’s compensation rate to $392.06 per week for temporary partial disability (TPD), effective April 15, 2016. However, between April 25, 2018 and March 23, 2020, Employer mistakenly paid Claimant’s 20% attorney fee in addition to Claimant’s full weekly TPD, when it should have deducted the 20% attorney’s fee from Claimant’s weekly TPD payment. Employer overpaid Claimant a total of $7,962.94. Employer filed Review Petitions requesting credit for the overpayment. Claimant testified that the overpayment was not his fault and that he did not engage in any fraud, that a credit would inflict a financial hardship upon him. The WCJ rejected Claimant’s testimony. The WCJ found that Employer unjustly enriched Claimant through the overpayment. Rather than suspending Claimant’s benefits until Employer recouped the overpayment, the WCJ ordered Employer to reduce Claimant’s TPD payments by $74.42 per week until it recouped the overpayment. The Board affirmed.

Holding:

Even if the first WCJ decision was silent as to the payment of attorney’s fees, the Board determined there was no presumption that Claimant was entitled to have Employer pay his attorney’s fees since Employer prevailed on the underlying modification petition. Silence as to the payment of attorney’s fees did not somehow nullify Claimant’s responsibility for his attorney’s fees chargeable against the partial disability benefits, he was awarded. In this context, reimbursement is permitted. The employer is entitled to recoupment, as its overpayments were the result of a “mistaken belief that those payments were necessary to discharge its duty under the WCJ’s orders.” This is not a situation where the request for recoupment of counsel fees and litigation cost that an employer paid while its appeal was pending and after its request for supersedeas was denied. Here, the propriety of the award is not in dispute. The issue is simply a matter of overpayment. While the Workers’ Compensation Act does not allow disgorgement of an unreasonable contest attorney’s fee award that was previously paid to a claimant’s counsel, the Act does not address mistaken overpayments of properly awarded workers’ compensation benefits. As a result, the restriction on the application of equitable principles does not apply to this case.

Affirmed.

MUNICIPAL LAW – PENSION FUND REIMBURSEMENT

Bensalem Township v. Samuel Karley
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 3, 2023

Issues:

(1) Whether the trial court erred by denying Police Officer’s counterclaim for declaratory judgment challenging the legality of the workers’ compensation offset provisions in the Township’s police pension ordinance and in the severance agreement? (2) Whether the trial court erred by finding against Police Officer on the breach of contract claim? (3) Whether the trial court erred and abused its discretion in holding that there had been an event of conversion by the Police Officer?

Background:

On January 3, 2006, the Police Officer began full-time employment as a Township police officer. The terms of his employment were governed by the collective bargaining agreement (CBA) between the Township and the Police Benevolent Association (Union). The CBA provided, inter alia, for a disability pension. In 2014, the Police Officer became permanently unable to perform his duties. In 2015, the Police Officer entered into a severance agreement with the Township. The severance agreement provided that the Police Officer would receive a disability pension effective October 16, 2015. The severance agreement also provided that the amount of the monthly disability pension may be reduced by any amount of workers’ compensation benefit received or which may in the future be received by him. It further provided that the Police Officer had an affirmative duty to continue his workers’ compensation claim, cooperate in the requirements of that claim, and inform the Township of the status of the claim and any changes. Per the agreement, if workers’ compensation benefits ended or were changed in amount or otherwise, the offset to the disability pension would be eliminated or adjusted accordingly. In an earlier workers’ compensation proceeding, the WCJ issued a decision that the Police Officer was entitled to total disability compensation in the amount of $845 per week based on his average weekly wage of $2,318.39, as of the date of his injury. The weekly disability compensation amount of $845 was adjusted to account for his disability pension, as the Plan Actuary calculated that 37.1% of the monthly pension represented employer contribution to the plan. This reduced the weekly WC payment to $425.73. As WC was paying the Police Officer $425.73 per week, under the severance agreement, the Police Officer was required to remit the $425.73 weekly compensation benefit to the Plan. By letter of September 23, 2016, the Township’s pension administrator advised the Police Officer that he had improperly retained these workers’ compensation payments instead of remitting them to the Township, as required by the severance agreement. The pension administrator instructed the Police Officer that he must immediately deliver a certified bank check, payable to the ‘Bensalem Township Police Pension Fund,’ in the amount of $26,292.59, by no later than Friday, September 30, 2016, and that if he did not, the Township would start “reducing his monthly pension benefit” to account for the workers’ compensation payments owed to the Township. On October 19, 2016, the Township initiated a civil action against the Police Officer, asserting claims of conversion, breach of contract, promissory estoppel, and unjust enrichment arising from his refusal to remit his workers’ compensation payments to the Township. In response, the Police Officer asserted counterclaims of conversion, unjust enrichment, mandamus, declaratory judgment, and a violation of the Pennsylvania Wage Payment and Collection Law. On December 23, 2020, the trial court entered a judgment in favor of the Township on breach of contract and conversion.

Holding:

The offset imposed by the Township reduced the Police Officer’s disability pension below the minimum required in Section 5(e)(1) of Act 600, 53 P.S. § 771(e)(1). The trial court declined to rule on his crossclaim for declaratory judgment that the ordinance and the severance agreement violated the minimum pension required by Section 5(e)(1) of Act 600, because the Union was a necessary party to any declaratory judgment action. Nevertheless, the offset provision did not violate Section 450(c) of the Workers’ Compensation Act. That section merely prohibits collective bargaining that purports to diminish a claimant’s entitlement to workers’ compensation. The Police Officer’s workers’ compensation benefits were calculated strictly in accordance with Section 204(a) of the Act, using his average weekly wage and reducing it by 37.1% of his retirement disability. There was no “diminishment” that was not authorized by the Workers’ Compensation Act. (The Court also noted that a WCJ has no jurisdiction over the Pension Administrator, who is not a party to this litigation.) The offset at issue here was expressly authorized by the pension plan ordinance. It was agreed to by the Union in the CBA and by the Police Officer, personally, in the severance agreement. The CBA’s provision on the pension offset for workers’ compensation was binding on him. Even if the offset did not conform to Section 5(e)(1) of Act 600, the trial court explained that “parties may not avoid limitations in a CBA, claiming that it conflicted with the law, after they voluntarily negotiated and agreed to the contracted provisions.” There was no error by the trial court in deciding the matter strictly on the basis of the terms of the severance contract.

The trial court’s conclusion that the Police Officer breached the severance agreement with the Township was not in error. The Police Officer refused to remit his lump sum payment of $26,292.59, in workers’ compensation benefits, as specified in the severance agreement. Although the Township was able to recoup those monies by reducing the disability pension payments, it was required to file suit because the Police Officer refused to adhere to the terms of the severance agreement. Where parties enter into a valid contract, they are required to comply with its terms.
The trial court neither erred nor abused its discretion in finding that an event of conversion had occurred. Conversion is an act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession. The language of the documents is clear and unambiguous. The restitution taken by the Township, as deductions made from pension payments, was consistent with the language of the documents. Therefore, the trial court did not err in finding there was a conversion when the Police Officer took the workers’ compensation benefits without accounting for same. Although the Township recovered the converted monies, the “event” of conversion still took place.

Affirmed.

(Editor’s Note: This matter was not litigated through workers’ compensation forum, but came up through the Court of Common Pleas. A Petition for Reargument before the Commonwealth Court has been filed and is pending.)

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
01/01/2023 – 01/31/2023

BURDEN OF PROOF

Keith Devan v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-1340-20; 2023 WL 29327
Decided: 01/04/2023

Background:

On January 20, 2015, DeVan, who was a Camden County juvenile detention officer, was injured during the course of his employment. He received workers’ compensation benefits from August 2015 through January 28, 2016, and he retired on March 1, 2016. DeVan then applied for accidental disability retirement benefits and was granted ordinary disability by the Board on May 19, 2016, who found that he was totally and permanently disabled as of March 1, 2016. The Board postponed ruling on the accidental disability application.

In 2016, the union and the County signed a contract that awarded salary increases retroactive to January 1, 2013. In June 2019, the Board granted the application for accidental disability retirement benefits, and in December 2019 advised that the accidental disability retirement benefits would be calculated based on DeVan’s salary at the time of the accident. DeVan filed an administrative appeal, which was denied. The Board rendered a final administrative decision in December 2020.

Holding:

The court held that for the purpose of calculating the amount of DeVan’s accidental disability, the focus is on the salary at the time of the accident and included within that calculation are the retroactive raises until January 20, 2015. The court held that the Board correctly explained the calculation and DeVan has not shown that the Board’s calculation was incorrect.

The court stated that DeVan was confused by the Board’s reference to his workers’ compensation, which was relevant while he was on ordinary disability because ordinary disability is based on final compensation, or the average annual compensation during any three fiscal years providing the largest possible benefit. However, the ordinary disability analysis was inapplicable once accidental disability was granted by the Board.

Finally, the court held that given the plain language of the accidental disability statute, DeVan’s analysis of the workers’ compensation statute and related case law are inapplicable, and any attempt by DeVan to include salary increases after the date of injury are not permitted.

Affirmed.

CASE SUMMARIES 12/01/2022 – 12/21/2022

Jan 11, 2023

PENNSYLVANIA WORKERS’ COMPENSATION CASE SUMMARIES

12/01/2022 – 12/21/2022

MEDICAL FEE REVIEW

State Workers’ Ins. Fund v. Harburg Medical (Bureau of WC Fee Review Hearing Office)

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 15, 2022

Issue:

Whether a causal relatedness denial rendered the provider’s fee review application premature by operating as a denial of liability for the work injury?

Background:

In 2004, Claimant sustained various injuries in a work-related incident while in the employ of the Employer. Employer issued a notice of compensation payable (NCP) accepting various injuries sustained by Claimant. At some point, SWIF reimbursed Harburg $1,725 for certain medical supplies and equipment prescribed to Claimant but denied payment for a piece of durable medical equipment described as a memory foam queen mattress overlay with cover, which was billed at $2,199.95. SWIF denied liability for the prescribed treatment on the basis that a current medical report was required specifically documenting the relationship of the prescribed mattress overlay to the original accepted work injury. However, SWIF did not seek utilization review concerning the prescribed treatment. Harburg applied for fee review contesting SWIF’s nonpayment for the prescribed mattress overlay. The Fee Review Section determined that SWIF was not obligated to pay the cost of the prescribed treatment because the service had not been properly billed. Harburg requested a hearing to contest the Fee Review Section’s determination. The Hearing Officer reversed the Fee Review Section’s decision and ordered SWIF to reimburse Harburg for the cost of the prescribed mattress overlay. The Hearing Officer reasoned that Workers’ Compensation Regulation 127.208(e) is clear and unequivocal that seeking utilization review, within 30 days of receipt of the billing, is a condition precedent to withholding payment. Thus, the Hearing Officer determined that SWIF could not deny reimbursement for the prescribed mattress overlay without first challenging the reasonableness and necessity thereof through utilization review.

Holding:

The Court rejected SWIF’s assertion that WC Regulation 127.255, “expressly” requires dismissal of Harburg’s fee review application as premature on the basis of SWIF’s “causal relatedness” denial. Despite contending that its “causal relatedness” denial constituted a denial of liability for Claimant’s work injury pursuant to subsection (1) of WC Regulation 127.255, SWIF inconsistently asserts that the present dispute turns solely on Employer’s liability for a particular medical treatment. SWIF did not request utilization review.

Thus, SWIF failed to toll the 30-day period in which to remit payment for the billed durable medical equipment. SWIF’s assertion that its “causal relatedness” denial in fact contested liability for Claimant’s work injury under subsection (1) of the above cited regulation lacks merit, because SWIF accepted liability for Claimant’s work injury by means of an NCP. Rather, SWIF’s assertion that the prescribed treatment is not causally related to Claimant’s work injury disputes liability for the treatment. SWIF’s denial alone does not render Harburg’s fee review application premature, because SWIF has not filed a request for utilization review of the treatment. SWIF was obligated to seek utilization review to dispute liability for Claimant’s treatment in order to render Harburg’s fee review application premature, because SWIF’s defense that the prescribed mattress overlay was not related to Claimant’s work injury was just another way of stating that it was not a reasonable or necessary procedure for treating Claimant’s diagnosis.

President Judge Cohn Jubelirer issued a dissenting opinion, wherein she disagreed that this Fee Review Application was not premature due to SWIF’s failure to seek Utilization Review.

Affirmed.

UPMC Benefit Management Serv., Inc. v. United Pharmacy Services (Bureau of WC Fee Review Hearing Office)

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 15, 2022

Issue:

Whether a causal relatedness denial rendered the provider’s fee review application premature by operating as a denial of liability for the work injury?

Background:

Claimant sustained a work-related injury. Claimant’s injury was accepted by a medical- only notice of compensation payable (NCP). In 2020, Claimant was prescribed compound cream with instructions to apply one to three pumps to the affected area two to four times daily, as needed. Between January and April 2020, Pharmacy issued three separate bills, each requesting payment of $2,249.98 for the compound cream dispensed to Claimant. UPMC denied payment on the basis that the prescribed treatment was not work related. Pharmacy filed applications for fee review pursuant to Section 306(f.1) of the Workers’ Compensation Act. The Fee Review Section denied each of Pharmacy’s fee review applications as prematurely filed on the basis that the issue of the causal relatedness of the prescribed compound cream to the work injury remained outstanding. Pharmacy requested a hearing to contest fee review determinations, asserting that the applications were not premature because Claimant’s injury was accepted by Employer, no party petitioned for utilization review, and UPMC’s 30-day period in which to remit payment following receipt of the disputed bills had lapsed. The Hearing Officer reversed the determinations of the Fee Review Section and ordered UPMC to issue payment plus statutory interest to Pharmacy for the medications dispensed to Claimant.

Holding:

None of the three prerequisites for deeming a fee review application premature has been met here. UPMC issued a medical-only NCP accepting liability for Claimant’s work- related injury. UPMC thereafter denied payment for the cost of the prescribed compound cream on the basis that the treatment was not causally related to Claimant’s work injury. Accepting liability for a work-related injury by means of an NCP does not preclude an insurer’s ability to question liability for a particular treatment. Either an employer or its insurer may file a petition for medical review of treatment contesting the causal relatedness of the prescribed treatment to the underlying work injury. In the alternative, either an employer or its insurer may petition for utilization review of the reasonableness or necessity of a prescribed treatment. Neither Employer nor UPMC pursued either means of recourse in the instant matter. Therefore, UPMC was obligated to dispute liability for Claimant’s treatment through the utilization review process in order to render Pharmacy’s fee review application premature. UPMC’s defense that the treatment was not causally related to Claimant’s work injury was just another way of stating that the compound cream was not a reasonable or necessary ‘procedure’ for treating Claimant’s diagnosis. President Judge Cohn Jubelirer issued a dissenting opinion, wherein she disagreed that this Fee Review Application was not premature due to SWIF’s failure to seek Utilization Review.

Affirmed.

MODIFICATION BASED UPON JOB AVAILABILITY

Kirk Wescoe v. Fedchem, LLC & SWIF (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 7, 2022

Issues:

Whether the WCJ erred in granting Employer’s modification?

Background:

Claimant sustained a work-related injury to his lower back. Employer acknowledged the injury. Employer and the State Workers’ Insurance Fund (collectively, Respondents) filed a petition seeking to modify Claimant’s disability benefits based upon their labor market survey and earning power assessment. The WCJ denied Employer’s petition and awarded Claimant litigation costs. The Board agreed that Employer had failed to establish the existence of “vocationally suitable” work. On appeal to the Court, a panel determined that the WCJ had erred. The panel therefore remanded for further proceedings. On remand, the WCJ granted the petition.

Holding:

An employer may seek a modification of a claimant’s benefits by offering the claimant a specific job that he is capable of performing, or establishing earning power through expert opinion evidence, which is based on job listings with agencies of the department, private job placement agencies, and advertisements in the usual employment area. The employer bears the burden of proving the claimant’s earning power. A claimant need not receive a potential job offer in order for the employer to establish that the claimant has earning power. However, the jobs identified by the employer must be actually open and potentially available, not simply jobs that are already filled with existing employees.

Evidence of a job application alone is insufficient to meet the employer’s burden. If there is additional circumstantial evidence about a job application, however, such evidence may support a finding that the position is open and available. A claimant may refute the employer’s evidence by showing that the employer’s labor market survey was erroneous, or that the claimant’s actual experience with the employers identified in the employer’s labor market surveys shows that the positions were not available. In this matter, there was sufficient circumstantial evidence to corroborate Claimant’s application, thus satisfying Employer’s burden that the position remained open and available. A representative at the location indicated that he could not print the application but recommended that Claimant apply online for the position. Thereafter, Claimant testified that he applied for the job. Based on this testimony, and the WCJ’s credibility findings, the Board inferred that the position remained open and available. Therefore, the WCJ did not improperly shift the burden to the Claimant. The contested issue was the availability of suitable work. As the Board properly reasoned, Claimant did not prevail on this issue. Therefore, the Board appropriately reversed the WCJ’s award of litigation costs. There was no legal error in the Board’s affirmance of the WCJ’s finding that the position was open and available and its reversal of the WCJ’s award of attorney’s fees.

Affirmed.

Lower Moreland Township v. John MacDonald (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 19, 2022

Issues:

Whether, when calculating Claimant’s earning capacity, the WCJ misapprehended and disregarded the evidence and ignored the plain language in Section 306(b)(2) of the Act?

Background:

Claimant suffered a work injury while employed as a police officer. Employer accepted the work injury through issuance of a notice of compensation payable (NCP). In 2019, Employer filed a petition to modify Claimant’s benefits based on an earning capacity and labor market survey (LMS) which determined that Claimant had an earning capacity of at least $1,538 per week. The WCJ credited Claimant’s testimony regarding his physical limitations to the extent they were consistent with the opinions of employer’s expert, whose testimony the WCJ accepted in its entirety. The WCJ found that Claimant was well-suited for work in customer-oriented occupations, such as sales. The WCJ found that Claimant could earn $60,000 in an entry-level position per the LMS. Employer appealed to the Board, arguing that the WCJ erred in failing to consider all 17 positions identified in the LMS, that the WCJ incorrectly calculated Claimant’s earning capacity, and that the WCJ failed to issue a reasoned decision. The Board rejected Employer’s arguments and affirmed the WCJ. The Board concluded that the WCJ did not err in calculating Claimant’s earning capacity, as that issue is a question of fact for the WCJ, and the WCJ’s findings were supported by substantial evidence.

Holding:

The WCJ is the ultimate finder of fact and exclusive arbiter of credibility and evidentiary weight. The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, and the WCJ is not required to accept even uncontradicted evidence. So long as the findings of the WCJ are supported by substantial evidence, they must be accepted as conclusive on appeal. Employer’s argument that the WCJ somehow misapprehended the evidence or mischaracterized testimony was rejected, as unsupported by the record. As the ultimate finder of fact, the WCJ may accept or reject, in whole or in part, the testimony of any witness, even that which is uncontradicted, and this Court may not overturn his findings if they are supported by substantial evidence. Further, the assessment of a claimant’s earning power was a question of fact for the WCJ and an LMS indicating that the claimant could earn a range of salaries from $140 to $376.60 per week constituted substantial evidence supporting the WCJ’s finding that the claimant could earn the highest salary in that range.

Affirmed.

JUDICIAL DISCRETION

Amazon.Com Serv. LLC, American Zurich Ins. & Sedgwick v. Engel L. T. Roman (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 1, 2022

Issues:

(1) Whether the WCJ erred by relying on the equivocal and legally incompetent testimony of Claimant’s medical expert; (2) Whether the WCJ capriciously disregarded substantial competent evidence in finding that Claimant met her burden of proof; (3) Whether the WCJ failed to render a reasoned decision?

Background:

Claimant sustained an injury to her right leg during the course and scope of her employment with Employer. Employer issued a Notice of Temporary Compensation Payable (NTCP) acknowledging Claimant’s injury. Employer later filed a Termination Petition. Claimant subsequently filed a Review Petition alleging that the injury description was incorrect and that her condition had worsened. The WCJ granted the Review Petition and denied the Termination. The Appeal Board affirmed.

Holding:

Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists. An expert’s opinion will not be deemed incompetent simply because an expert testifies that a claimant’s work injury either caused an injury or aggravated a preexisting injury. Claimant’s expert’s testimony was competent as a matter of law, as it sufficiently definite and unequivocal to render it admissible. A capricious disregard only occurs when the WCJ deliberately ignores relevant, competent evidence. The WCJ is the fact finder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Neither the Board nor this Court may reweigh the evidence or the WCJ’s credibility determinations. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. The evidence must be viewed in a light most favorable to the party that prevailed before the WCJ. The pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Because the WCJ acted within his province, the WCJ did not capriciously disregard substantial, competent evidence in finding that Claimant met her burden of proof under the Review Petition. To satisfy the reasoned decision requirements, a WCJ must set forth the rationale for the decision by specifying the evidence relied upon and reasons for accepting it. The WCJ’s credibility determinations complied with the reasoned decision requirement because they contained more than just a conclusory statement regarding the experts’ credibility. The WCJ explained that certain testimony was more credible and persuasive than other testimony because it was consistent with Claimant’s credible testimony, and because Claimant’s treating physician was more familiar with Claimant’s experiences and symptoms. The WCJ explained why he rejected employer’s expert’s testimony. Accordingly, the WCJ rendered a reasoned decision.

Affirmed.

Columbia County Commissioners v. Kristie Rospendowski (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 1, 2022

Issue:

Whether an employer can offset an overpayment of workers’ compensation (WC) benefits paid for one work-related injury through a credit against an award of benefits for a subsequent work-related injury?

Background:

Claimant is a full-time deputy sheriff for Employer. On January 7, 2011, Claimant sustained a work-related broken right ankle. Claimant was off work for that injury off and on over a period of four years. In a modification petition filed by Employer related to the 2011 Injury, Employer sought to modify a supplemental agreement based on its overpaying Claimant $14,233.88 in wage loss benefits due to Claimant’s failure to disclose income from other employment and/or provide earnings data as required by the supplemental agreement. The WCJ held that Claimant had been unjustly enriched by the overpayment and that Employer was entitled to a recoupment of benefits. Ultimately, Claimant returned to full-duty work without wage loss in 2016, her wage loss benefits for the 2011 injury ended, and $10,333.88 of the overpayment amount remained unpaid.

Claimant subsequently sustained a different work-related injury, to her low back, on January 22, 2019. Employer stipulated that it would accept the injury as a medical-only claim, notwithstanding Claimant’s undisputed wage loss, because it wanted to recoup part of the overpayment from the 2011 injury as a credit against the benefits owed for the 2019 injury. The WCJ granted the Claim Petition. On the issue of the payment of wage loss benefits for this period, the WCJ held that Employer was not entitled to the requested credit against the wage loss benefits for the 2019 injury and directed Employer to pay Claimant. Employer appealed and the Board affirmed.

Holding:

The parties all agreed, there is no provision in the Act or its regulations that expressly allows the relief Employer seeks, nor is there a provision that prohibits it, and no court has granted an offset to recoup an overpayment for one work-related injury against the benefits of a subsequent work-related injury. However, the Court has found that WCJs have implied authority under the first paragraph of Section 413(a) of the Act to impose equitable remedies, such as restitution and recoupment, to avoid double recoveries and unjust enrichment. Section 413[(a)] does not expressly provide that a WCJ or the Board has equitable powers and the Act as a whole is silent on the question of equitable remedies. Section 413(a), however, gives a WCJ broad authority to modify a notice of compensation payable, award or agreement, and a WCJ may thereby reach the question of whether a party was erroneously overpaid or underpaid. Because Section 413(a) gives a WCJ the power to decide these difficult problems, which often may be resolved only by disgorging funds from the party who has been unjustly enriched, we believe that the authority to utilize the equitable remedy of restitution is implied in the statute. Under Section 413(a), in the absence of an existing agreement, there is no recoupment for an overpayment of benefits. If there was no agreement, the Court has concluded that Section 413(a) did not provide the WCJ the power to order a recoupment for an overpayment of benefits. The authority to order recoupment through a credit against future benefits is limited to situations where the overpayment and credit related to the same, existing agreement, for the same injury. As this requirement is not present in this case, Section 413(a) does not authorize a WCJ to grant Employer the credit it seeks. The fact that no recourse may exist under the Act does not authorize this Court to act outside its role to create a remedy that the General Assembly did not provide, or to apply a remedy that does not arise under a statutory provision. There was no error in denying Employer’s request for a credit against Claimant’s WC benefits for the 2019 injury for the overpayment of benefits related to Claimant’s 2011 injury.

Affirmed.

NOTICE AND VOLUNTARY RETIREMENT

JJ White, Inc., v. Kader Yahawi (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 2, 2022

Issues:

1. Whether the Board improperly concluded that Claimant provided adequate and timely notice under the Act? 2. Whether the claimant voluntarily retired?

Background:

Claimant was injured while lifting a bucket out of a hole, immediately feeling pain in his lower left side and back. Claimant stopped working and reported the injury to his union shop steward, Ed Harkins, that same day. Claimant filed a claim petition alleging that he sustained a work injury. Employer argued that Claimant did not satisfy the notice requirements of section 313 of the Act as he only reported his injury to the shop steward, Mr. Harkins, who never reported the alleged work injury to Employer.

Holding:

The Board did not err or exceed its authority in overturning the WCJ’s determinations of credibility and the weight to be accorded evidence, as those are the prerogative of the WCJ, not the Board. The claimant carries the burden of demonstrating that timely notice of an alleged injury was given. Sections 311 and 312 of the Act provide when and in what form a claimant must give notice to an employer in order to perfect his claim.

Notice of a work-related injury is required within 120 days of the injury. Notice of a work-related injury may be given to the immediate or other superior of claimant, to the employer, or any agent of the employer regularly employed at the place of employment of the claimant. A supervisory position is not the only requirement under the Act despite Employer’s policy. The Act also allows an agent of the employer or other superior of the claimant to receive a report of an injury. The undisputed evidence demonstrated that Mr. Harkins, the shop steward, performed several functions as an agent of Employer for purposes of accepting reports of work injuries from union employees. The Court determined that Mr. Harkins acted with authority on behalf of Employer and there was no error in the Board’s conclusion that the WCJ capriciously disregarded that evidence and failed to properly apply the provisions of section 313 of the Act. Claimant provided adequate and timely notice under section 313 of the Act.

A claimant who has been forced into retirement as a result of a work-related injury may continue to receive workers’ compensation benefits. An employer may seek a suspension of those benefits where a claimant voluntarily leaves the workforce rather than being forced into retirement because of the work injury. An employer bears the burden of showing that a claimant has retired. There is no presumption that a claimant has voluntarily retired from the entire workforce merely because a claimant has accepted some type of pension benefit. There is merely an inference that the claimant has retired. The factfinder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce. If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. The WCJ’s determination that Claimant did not retire from the entire workforce was based in part on his testimony that he was unable to earn a living after his injury, and he took the annuity as a lump sum in order to live. Moreover, Claimant credibly testified that he still pays union dues and attends monthly union meetings.

Affirmed.

COURSE AND SCOPE OF EMPLOYMENT

Lemont Blackmon v. Sodexo Global Services (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: December 7, 2022

Issue:

Whether an employee injured in an accident while driving home after receiving therapy for a prior work-related injury was injured in the scope of his employment?

Background:

Claimant suffered a work-related injury to his right elbow in August 2019 while working for Employer at West Chester University. That injury resulted in no wage loss but required physical therapy, for which Employer issued a medical-only notice of compensation payable. Claimant was receiving physical therapy several times a week at a facility in Ridley Park. Claimant and Employer reached an agreement by which on days he received therapy he would start work earlier in the day at 5:00 a.m., work some hours, leave for his therapy appointment in Ridley Park, and then be free to do as he pleased for the rest of the workday until his supervisor clocked him out. Claimant would be paid for a full workday, with the understanding that the therapy facility was close to his home in Philadelphia and that to return to West Chester University’s campus would leave him with little remaining work time. On September 20, 2019, after leaving work and going to therapy, Claimant was on his way home, with a brief detour to pick up his dog from a friend’s house. After picking up his dog, Claimant was involved in a motor vehicle accident while he was still on the clock at his job but free from further work responsibilities. The accident left him with extensive injuries which prevented his return to work. Claimant filed a claim for benefits for the injuries sustained in the accident. The WCJ denied that claim because she concluded that his injuries were not work-related. The Board affirmed.

Holding:

A claimant’s injury suffered while driving to an appointment necessary for treatment as a result of a work-related injury was work-related, and thus in the course of his employment, because, but for driving to his physician for treatment of his earlier work- related injury, claimant would not have been in a position to be involved in the accident which caused his further injuries. Claimant asked the court to extend this rule to cover those, like him, who are leaving a therapy appointment necessitated by a work-related injury as an alleged special circumstance in furtherance of the business of Employer.

However, this is distinguishable in that that claimant’s trip was to physical therapy for an earlier work-related injury, and thus qualified for the “special circumstances” exception to the general “going and coming” rule that an employer is not liable for injuries that occur while the employee is traveling off premises. Claimant had finished his physical therapy appointment and, although being paid, was left to his own devices to do as he pleased. Claimant’s workday was, for all intents and purposes, finished for the day, as he had concluded any activities that could be considered a special assignment for the employer or furthering the business of the employer. Claimant had no further obligation to Employer for the rest of the day. As such, the claim was not compensable.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

Jeffrey Chamberlin v. Commonwealth of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum

Decision Decided: December 6, 2022

Issues:

Whether the IRE process violated claimant’s rights under the Pennsylvania Constitution?

Background:

Claimant suffered an injury while employed as a Youth Development Counselor Supervisor at a juvenile detention facility. Employer issued a notice of compensation payable (NCP) which acknowledged Claimant suffered a work-related injury. Employer filed a petition seeking to modify Claimant’s benefits status from total to partial disability. Employer relied on an impairment rating evaluation (IRE). Claimant filed a review petition seeking to amend the description of his work injury. The WCJ entered an order granting Employer’s petition to modify Claimant’s benefit status from total to partial disability. Moreover, the order granted Claimant’s review petition in part. The Board affirmed.

Holding:

The Court reviews workers’ compensation orders for violations of a petitioner’s constitutional rights, violations of agency practice and procedure, and other errors of law, as well as whether substantial evidence supports the findings of fact necessary to sustain the decision. The WCJ is the factfinder in workers’ compensation matters and is entitled to weigh the evidence and assess credibility of witnesses. The WCJ provided a sufficiently “reasoned decision” under Section 422(a). The WCJ supplied findings of fact and credibility determinations with explanations for her determinations. Further, the Act’s current IRE provisions do not violate the Pennsylvania Constitution.

Affirmed.

Thomas Murray v. Lycoming Supply, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unreported Memorandum Decision

Decided: December 9, 2022

Issue:

Whether the WCJ committed an error of law by reinstating benefits as of the date claimant filed his Reinstatement Petition rather than the date of his 2010 IRE?

Background:

Claimant was working as a demolition laborer for Employer and suffered a low back injury. Claimant began receiving temporary total disability (TTD) shortly after his injury. Claimant underwent an IRE in 2010 which found that Claimant had a Percentage of Impairment Rating (Impairment Rating) of 13%. As his Impairment Rating was under 50%, the Bureau of Workers’ Compensation issued a Notice of Change of Workers’ Disability Status from TTD to temporary partial disability (TPD) on August 13, 2010.

Claimant did not appeal. In January 2020, Claimant received his final payment of TPD and on February 26, 2020, Claimant filed a Reinstatement Petition. Pursuant to Section 306(a.3) of the Act, on February 17, 2020, Claimant underwent another IRE. Relying on the IRE results, Employer filed a Petition to Modify seeking to modify Claimant’s benefit status from TTD to TPD. Claimant had an Impairment Rating of 11%. The WCJ found Claimant met his burden of proving his benefits should be reinstated. The WCJ granted Claimant’s Reinstatement Petition arising from the August 4, 2010 IRE effective February 26, 2020 (the date of filing). The WCJ also granted Employer’s Petition to Modify as of February 17, 2020, the date of the latter IRE. The Board affirmed the WCJ’s decision granting Claimant’s Reinstatement Petition and Employer’s Petition to Modify on October 20, 2021. Claimant appealed.

Holding:

The WCJ and Board committed no error of law by reinstating his benefits as of the date claimant filed his Reinstatement Petition rather than the date of his 2010 IRE. Claimant did not appeal the Board’s decision to grant Employer’s Petition to Modify.

Affirmed.

Wendy Johnston v. Sealed Air Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 12, 2022

Issue:

Whether the provisions of Act 111, pertaining to IREs, is constitutional?

Background:

Claimant sustained a work-related injury while employed by Employer. Employer issued a Notice of Compensation Payable. In 2018, a WCJ approved a Stipulation of Facts expanding the nature of the injuries. In 2021, Claimant underwent an IRE, provided for in Section 306(a.3) of the WC Act (Act), which resulted in a whole-body impairment rating of 27%. Employer filed the Modification Petition, seeking to modify Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted Employer’s Modification Petition. Claimant appealed to the Board. The Board affirmed.

Holding:

The Court rejected Claimant’s arguments as to constitutionality and retroactivity, based upon its prior precedent. The Court noted that the claimant was merely preserving the arguments for presentation to the PA Supreme Court.

Affirmed.

Lauren M. Sanders v. Recordtrak, LLC (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision Filed: December 12, 2022

Issue:

Whether Act 111 is an unconstitutional delegation to the AMA and violates article II, section 1 of Pennsylvania’s Constitution?

Background:

While in the course of her employment with Employer, Claimant sustained a work- related repetitive motion injury. In 2020, claimant underwent an IRE, as provided for in Section 306(a.3) of the Act. The IRE evaluator opined multiple diagnoses, and calculated Claimant’s whole-body impairment as 25%. Consequently, Employer filed a Modification Petition seeking to change Claimant’s disability status from total to partial. Claimant opposed the Modification Petition on the grounds that Act 111 is unconstitutional. The WCJ granted Employer’s Modification Petition and the Board affirmed.

Holding:

The Court rejected Claimant’s argument and held that Act 111 is not an unconstitutional delegation to the AMA and does not violate article II, section 1 of Pennsylvania’s Constitution. Further, the court noted that, an NCP should define compensable injury for purposes of this inquiry. However, such holding does not determine the range of impairments which may be due to such injury. It is the physician-evaluator who determines the injuries at the time of the IRE, not the NCP.

Affirmed.

Donald Stevenson v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision Decided: December 12, 2022

Issue:

Whether the retroactive effect and application of Act 111 violated the federal and state constitutions?

Background:

Claimant was injured in November 2011 in the course and scope of his employment for Employer as a corrections officer. Claimant was paid benefits pursuant to a notice of temporary compensation payable and various amended notices of compensation payable. Employer requested the designation of a physician to perform an IRE. A physician was so designated, who examined Claimant on July 13, 2020, and prepared an IRE report finding that Claimant had a 20% impairment rating. Employer filed a petition to modify compensation benefits based upon the 20% impairment rating assigned. In July 2021, the WCJ issued a decision and order granting the petition to modify benefits from temporary total disability to temporary partial disability effective July 13, 2020.

Holding:

The Court previously squarely addressed whether there is a vested right in continued receipt of temporary total disability that is violated by the IRE process and concluded that there is not. The Court stated explicitly that if the employer pursued a new IRE under Act 111 following the procedures of Section 306(a.3), it would be entitled to credit for the weeks of partial disability benefits paid prior to the effective date.

Affirmed.

EMPLOYMENT RELATIONSHIP – INDEPENDENT CONTRACTOR

Manjinder S. Tiwanna, Dec., by Balwinder Kaur, Dependent v. Jatt Friends, Inc., Kaolin Mushroom Farms, Inc., Uninsured Employers Guaranty Fund, and USA Freight, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 1, 2022

Issue:

Whether the WCJ’s factual findings as to Decedent’s employment status as an independent contractor were supported by substantial evidence?

Background:

Before June 1, 2018, Decedent was driving a tractor trailer pursuant to an independent contractor agreement with Jatt. Decedent signed a notice of termination, with an effective date of May 31, 2018, which indicated that he was “voluntarily terminating his contract for driving with Jatt ….” On June 1, 2018, Decedent signed an Independent Contractor Agreement with Race, wherein Race agreed to obtain delivery jobs for Decedent, Decedent agreed to pay Race a dispatch fee, and Decedent agreed to lease a tractor trailer from Race. The agreement also specified “[i]t is expressly agreed that Decedent shall always be acting as an independent contractor during the performance of any services under the Agreement. This Agreement does not constitute, and shall under no circumstances be construed as constituting, or creating, an employer/employee relationship between Race and Decedent.” Decedent died on June 5, 2018, due to injuries he sustained from a tractor trailer accident. At the time of his death, Decedent was transporting a load of mushrooms, which Kaolin subcontracted to Race.

Claimant/Mother filed Fatal Claim Petitions against Jatt and Race. Claimant alleged that she was living with and totally dependent upon her son. Shortly thereafter, Claimant filed claim petitions for benefits from UEGF against Jatt and Race. The UEGF then filed joinder petitions, seeking to add Kaolin and USA Freight as additional employers. Due to Race and Jatt’s failure to timely file an answer to Claimant’s Fatal Claim Petitions, the WCJ deemed the factual allegations in those petitions admitted. Based upon numerous factual findings, the WCJ determined that Claimant did not sustain her burden of proving that Decedent’s death was caused by an injury he sustained during his employment with one of alleged Employers and denied Claimant’s Fatal Claim Petitions. The Board affirmed.

Holding:

The Court reviewed the considerations in determining a claimant’s employment status, noting that, while no hard and fast rule exists to determine whether a particular relationship is that of employer-employee or owner-independent contractor, certain guidelines have been established and certain factors are required to be taken into consideration. These include (1) control of manner the work is done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) nature of the work/occupation; (5) skill required for performance; (6) whether one is engaged in a distinct occupation or business; (7) which party supplies the tools/equipment; (8) whether payment is by time or by the job; (9) whether work is part of the regular business of employer; and, (10) the right to terminate employment. Control over the work to be completed and the manner in which it is to be performed are the primary factors in determining employee status. Control exists where the alleged employer possesses the right to select the employee; the right and power to discharge the employee; the power to direct the manner of performance; and the power to control the employee. Moreover, payment of wages and payroll deductions are significant factors, as is provision of workers’ compensation coverage. The existence of an employment or independent contractor agreement is another factor to consider, but it is not, by itself, dispositive.

Although Race would be violating its contract with Kaolin by having Decedent transport Kaolin’s load as an independent contractor, this does not preclude a finding that Decedent was acting as an independent contractor. Nor does Kaolin’s transportation manager’s belief that Decedent was Race’s employee. Instead, these were merely factors in determining whether Decedent was Race’s employee. The WCJ extensively analyzed and weighed the testimony and documentary evidence in this matter. Each of the WCJ’s factual findings were supported by testimony or documentary evidence that the WCJ found to be credible. Therefore, the Board did not err in determining the WCJ’s findings of fact were supported by substantial evidence and that the WCJ did not commit an error of law when it determined Decedent was an independent contractor at the time of his death.

Affirmed.

STATUTE OF LIMITATIONS

Sueanne Keim v. PMC Pinnacle Hospitals (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 12, 2022

Issue:

Whether the WCJ erroneously concluded that the payment of medical expenses under a medical-only NCP does not toll the statute of limitations under Sections 315 and 413(a) of the WC Act?

Background:

Claimant was injured on April 4, 2017, while in the course and scope of her employment. Employer issued a medical-only NTCP. The NTCP converted to a Notice of Compensation Payable (NCP). Claimant filed a Claim Petition in 2021, more than 3 years after the injury, seeking partial disability benefits from April 4, 2017 through March 31, 2021, and total disability benefits from April 1, 2021 and ongoing. On August 18, 2021, the WCJ denied and dismissed the Claim Petition, finding that Employer’s medical expense payments did not toll the statute of limitations and, therefore, the Claim Petition was time barred. The Board affirmed.

Holding:

Section 315 of the Act mandates that in cases of personal injury all claims for compensation shall be forever barred, unless, within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition. Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of three years from the time of the making of the most recent payment prior to date of filing such petition. The effect of issuing a medical-only NCP is distinct from the effect of a WCJ ruling that a claimant has suffered a loss of earning power and granting a claim petition but immediately suspending benefits. Under Section 413(a) of the Act, a reinstatement petition must be filed within three years after the date of the most recent payment of compensation made prior to the filing of such petition. The payment of medical benefits by an employer does not constitute compensation for the purposes of Section 413(a). There was no evidence presented, nor any findings of fact made, to establish that Employer intended its medical expense payments to substitute for disability compensation. Similarly, there was no evidence presented, and no findings made, that Employer misled Claimant by only paying medical benefits, that it intentionally or unintentionally deceived her, or that it somehow lulled her into a false sense of security sufficient to toll the statute of limitations. Here, by issuing the medical-only NCP, Employer made its intent expressly clear that it would pay Claimant’s medical expenses but accepted no liability for wage-loss benefits. A claimant has three years from either the date-of-injury or the last payment of compensation to file a review petition or it is untimely. Where, as here, no disability compensation was paid, the date-of-injury controls.

Affirmed.

NEW JERSEY WORKERS’ COMPENSATION CASE SUMMARIES

12/01/2022 – 12/23/2022

BURDEN OF PROOF

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

Superior Court of New Jersey, Appellate Division No. A-0568-21; 2022 WL 17726234

Decided: 12/16/2022

Background:

Dennis injured his low back on July 18, 2017 while carrying a man down a narrow flight of stairs with his partner. He was sent to the workers’ compensation doctor, who prescribed him medicine and returned him to full duty with no restrictions. After two visits, Claimant complained to his supervisor, and he then returned for a third time, when he was referred for physical therapy and injections, and put on light duty.

Light duty eventually became an issue, as he was unable to take his prescribed medication and work. He stated he was advised that he either needed to retire and apply for accidental disability retirement benefits (ADRB), or be written up for failure to be medically cleared. On February 24, 2018, Dennis applied for accidental disability retirement benefits. The Board denied the application, and the matter was transferred to the Office of Administrative Law. The Administrative Law Judge (ALJ) decided that Dennis had not proven he was totally and permanently disabled and did not prove his injury was “undesigned and unexpected.”

Holding:

The court reviewed the testimony of Dennis’s expert, Dr. Shah, and the Board’s expert, Dr. Berman, and concluded that the ALJ’s findings, and specifically credibility conclusions, were supported by the substantial evidence in the record. Since the Board did not err in determining that Dennis failed to prove he was permanently and totally disabled, the court’s review would normally end there, however, they addressed whether his injury was “undesigned and unexpected.”

The court summarizes the Moran and Brooks cases cited by Dennis, which the court then distinguishes. The court held that Dennis was performing his normal job duties at the time of the incident, as he had training to carry people in the manner he was during the incident. Further, the court stated that the record did not contain any evidence that his injury arose from anything other than ordinary strenuous work effort.

The court held that the Board’s finding that Dennis is not totally and permanently disabled and the incident was not undesigned and unexpected was supported by credible evidence and not arbitrary, capricious, or unreasonable.

Affirmed.

CAUSATION & FIDUCIARY DUTY

Holm v. Purdy

Supreme Court of New Jersey 2022 WL 17587788

Decided: 12/13/2022

Background:

The administratrix of the estate of an LLC member (Holm) who died after falling at their workplace brought action against the LLC’s insurance broker (Purdy) and asserted claims of professional negligence and breach of fiduciary duty, stemming from the allegation that the broker did not advise the LLC that they could obtain workers’ compensation coverage for the member. A jury trial ensued, and the Superior Court, Law Division, Monmouth County granted the broker’s motion for an involuntary dismissal and motion for judgment at trial. The administratrix appealed, and the Superior Court, Appellate Division affirmed in part and reversed in part, and remanded the case for new trial. The broker petitioned for certification.

Robert Friedauer and his brother Walter owned Holmdel Nurseries from 1978, eventually forming an LLC in which they were each members owning 50%. Robert’s sons Christopher and Michael worked part-time at the nursery starting as teens, then became full-time employees after college. Defendant has decades of experience as an insurance broker, specializing in commercial insurance for agriculture-related businesses. He became the insurance broker for Holmdel Nurseries in 2002. From that time, he discussed with Robert the various types of insurance available, and Robert instructed defendant to obtain policies including workers’ compensation. For a year after workers’ compensation coverage became available for LLC members, Holmdel Nurseries obtained that coverage for Robert and Walter, however, after Robert broke his wrist at work, he and his brother decided it was not cost-effective to maintain workers’ compensation insurance.

Defendant testified that every policy renewal included the form by which the LLC could elect workers’ compensation coverage. Plaintiff denies that the LLC received the notices of election. From 2002 to 2012, Holmdel Nurseries provided no workers’ compensation coverage to LLC members, but Christopher and Michael were covered as employees.

In 2012, Christopher and Michael bought Walter’s 50% interest in the nursery. The agreement was retroactive to January 1, 2012, making Michael and Christopher no longer employees, but LLC members as of that date. On July 12, 2012, defendant had his annual meeting with Holmdel Nurseries management to discuss the LLC’s insurance needs. All parties agree that during that meeting, defendant did not tell Christopher or Michael that because they were now LLC members rather than employees, they were not covered by the workers’ compensation insurance or that the LLC could elect to purchase workers’ compensation insurance that would cover them.

On February 15, 2015, Christopher was at work preparing trucks for snowplowing. Michael stated that Christopher seemed completely out of it, and Christopher told him that he had slipped and hit his head so hard he saw stars. Michael later found Christopher dead in a truck.

Plaintiff filed this action in the Law Division, asserting professional negligence, and that defendant breached his duty to act as an insurance broker of reasonable skill and diligence by failing to recommend basic insurance coverage such as workers’ compensation, disability, or life insurance. After discovery, defendant moved for summary judgment, and plaintiff counter-moved for partial summary judgment, both of which were denied.

At trial, plaintiff testified, along with Robert and Michael, who stated that if they had been aware of the availability of insurance coverage for LLC members, they would have obtained such coverage. Two experts also testified on behalf of the plaintiff. Plaintiff also sought to introduce the autopsy report to prove that the death was work-related, but the trial court excluded the report. Defendant testified on his own behalf and had his own expert testify.

The trial court held that an insurance broker owes a duty to an LLC to inform them of the availability of workers’ compensation insurance, however, it rejected plaintiff’s argument that an LLC’s broker has a duty to inform individual LLC members of their right to elect workers’ compensation coverage. The court also found no evidence that Christopher would have decided that the LLC would provide workers’ compensation insurance to its members had he been aware of its availability, and found no evidence that Christopher suffered a work-related injury, and therefore could not decide if his death would have been compensable if they had insurance. The trial court granted defendant’s motion for an involuntary dismissal and judgment at trial. Plaintiff appealed, and the Appellate Division affirmed the trial court’s denial of plaintiff’s cross-motion for partial summary judgment and reversed the trial court’s grant of defendant’s motion for involuntary dismissal and motion for judgment at trial.

Holding:

The court held that they must consider the foreseeability of harm to a potential plaintiff and then analyze whether accepted fairness and policy considerations support the imposition of a duty. There are four factors they must weigh: 1) relationship of the parties, 2) nature of the risk, 3) opportunity and ability to exercise care, and 4) public interest.

The court stated that insurance carriers and brokers have a duty to advise insureds of their coverage needs where the insurer is aware of a particular peril, but a broker is not responsible for failure to procure coverage when there is no evidence that insured requested such coverage.

The court held that the fiduciary duty of a broker is constrained to the categories of insurance coverage that the broker undertakes to obtain for the insured, or the coverage necessitated by a particular peril known to the broker, and there is no duty to advise an insured about the many varieties of insurance available.

Regarding the first factor, the relationship of the parties, the court held that defendant was the insurance broker to Holmdel Nurseries for over a decade and was charged by the company to secure workers’ compensation policies every year. They further stated that by virtue of that role, he had a statutory obligation to ensure that the LLC received the mandatory notice, and Christopher was in the category of individuals who the Legislature intended to protect. Therefore, the relationship of the parties favors the imposition of a duty in this matter.

Regarding the second factor, the court held that the risk imposed on Christopher and his dependents were significant, as the trial record shows Christopher conducted potentially dangerous tasks in his job and raises the specter that he would suffer a serious work- related injury without workers’ compensation policy. Therefore, the court held that the facts support the imposition of a duty.

With regard to the third factor, the court held that defendant had both the opportunity and the ability to tell the LLC members about the availability of workers’ compensation coverage and the requirements to obtain it, and therefore the third factor favors the imposition of a duty.

Regarding the fourth factor, the court held that an insurance broker for an LLC, who is charged by the LLC to obtain workers’ compensation coverage, has a non-waivable duty to provide notice that such coverage is available to LLC members who actively perform services on behalf of the LLC, but that the coverage is only available if the LLC elects. Furthermore, the court held that because it is foreseeable that the failure to provide such notice may harm an LLC member of their dependents, the duty may extend to the LLC members eligible for workers’ compensation coverage. The court does state that the statute precludes the imposition of liability on broker absent proof of willful, wanton, or grossly negligent act of commission or omission by the broker. The court held that because the trial court’s grant of defendant’s motions was based mostly on its conclusion that defendant owed no duty to the LLC members, they agreed with the Appellate Division that the court erred when it granted the motions.

The court then addressed the trial court’s ruling on proximate cause. The court stated that they disagreed with the trial court’s assessment of the evidence, and a reasonable juror could have concluded that all three LLC members wanted to maximize insurance coverage for Christopher, the father of young children whose work was sometimes dangerous. The court further held that in order to award death benefits to Christopher’s dependents, a workers’ compensation judge would have to find that his death resulted from an accident arising out of and in the course of his employment and they disagree with the trial court’s conclusion that plaintiff presented no evidence that Christopher died in a work-related accident and therefore it did not need to reach the question of proximate

cause. The court held that the trial court should have reached the issue whether plaintiff’s proofs on the proximate cause of Christopher’s death were sufficient to warrant denial of defendant’s motions for involuntary dismissal and judgment at trial.

Finally, the court held that because the trial court did not recognize a duty for a broker to provide notice to an LLC member of the availability of workers’ compensation coverage, the trial court did not consider whether defendant caused damage by willful, wanton, or grossly negligent act of commission or omission, and the court remands the matter to the trial court for a determination of plaintiff’s claims under the willful, wanton, or grossly negligent standard. The court affirmed as modified the judgment of the Appellate Division and remanded the matter to the trial court for further proceeding in accordance with the opinion.

Remanded.

AWARD OF FEES

Garzon v. Morris County Golf Club

Superior Court of New Jersey, Appellate Division No. A-1100-21; 2022 WL 17882435

Decided: 12/23/2022

Background:

Petitioner, Garzon, worked for the Club for 3 years, preparing and serving food. On December 15, 2016, petitioner tripped over a box in the kitchen, injuring her neck, back, and left hand. The Club provided her with temporary disability benefits from the day after the accident to December 29, 2016, when she went on a two-week vacation to Colombia. The Club resumed payments as of January 25, 2017. The adjuster for the Club’s insurance carrier questioned petitioner’s doctor on how he could have extended her disability when she had left the country, thereby delaying her treatment. The doctor responded that her vacation had no bearing on her care or his recommendations, noting that the Club was closed and unable to offer her light duty work. The adjuster subsequently advised petitioner she could no longer treat with that doctor and had to seek treatment from a different medical practice.

In February 2017, petitioner filed a claim petition. The Club’s answer denied that her injuries had arisen out of the course and scope of her employment, as well as the nature, extent, and permanency of her injuries. Petitioner then filed a motion to compel the Club to pay her temporary compensation and medical treatment. A hearing was held in March 2017, after the end of the first day, the parties resolved the issues in petitioner’s motion and agreed the Club would pay temporary disability benefits for the period of December 29, 2016 through January 24, 2017, and would continue to authorize treatment. This was approved and petitioner was paid $1,880.84.

Petitioner’s treating physician later imposed permanent work restrictions, which caused the Club to stop the temporary disability benefits. However, after a December 2018 conference before a new judge, the Club agreed to reinstate petitioner’s benefits. The Club did not immediately restore the benefits, and in January 2019, petitioner moved to enforce the order to reinstate the payments. The Club did resume making temporary disability payments.

The trial began in August 2021 to determine the nature and extent of petitioner’s disability. Affidavits were submitted by both sides regarding counsel fees, and in October 2021, the judge issued an order approving settlement of the permanency issue and granting a permanent disability award of $164,577. The judge also granted counsel fees of $32,915, equal to 20% of the award, and assessed the entire fee against the Club. In connection with the 2017 motion to compel, the judge held that petitioner was entitled to a penalty for the withholding of the temporary benefits. Instead of basing the 25% penalty on the $1,880.84, the amount withheld, the judge assumed the petitioner had not been paid for four full weeks, and awarded a penalty on that amount, or $548.58. The

judge also approximated the total paid in temporary and medical benefits to be about

$390,000 and awarded petitioner 20% of that amount in counsel fees for the motion to compel, which is $78,000.

Regarding the 2019 motion to enforce, the judge asserted a penalty equal to 25% of the amount of the $5,564.17 of withheld benefits, or $1,391.04, and awarded $12,500 in counsel fees, which was the 25 hours petitioner’s counsel asserted he had worked multiplied by counsel’s suggested hourly rate of $500. The judge also assessed an additional penalty of $5,000 to be paid into the Second Injury Fund.

The Club appealed, arguing that the counsel fee awards were excessive, arbitrary, and abuses of discretion.

Holding:

The court held that the judge’s first step when determining a reasonable amount for attorney’s fees is determining the “lodestar” which is the number of hours reasonably expended multiplied by a reasonable hourly rate. In awarding petitioner attorney fees that were 20% of the permanent disability award, the compensation judge failed to make a full analysis of the fee submission and did not engage in a reasonableness analysis.

Therefore, the attorney fee award of $32,915 in connection with the permanency award is reversed and vacated.

The judge made the same error when calculating the fee award for the 2017 motion to compel. He calculated the 20% math and did not consider what fees were actually incurred in bringing the motion and if they were reasonable. Therefore, the $78,000 fee award for the motion to compel is reversed and vacated.

Regarding the 2019 motion to enforce, the judge issued a fee award based on petitioner’s counsel’s suggested hourly rate and total numbers of hours worked. The document stated that counsel spent a total of 25 hours of work performed in 2017, 2018, and 2019, so in awarding a fee for the 2019 motion based on all 25 hours, the judge was not awarding reasonable legal fees to enforce the order, and therefore the $12,500 fee award for the motion to enforce is reversed and vacated.

Reversed and Remanded.

4859-2012-8584, v. 1

CASE SUMMARIES 10/28/2022 to 11/30/2022

Dec 19, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

10/28/2022 – 11/30/2022

EXPERT TESTIMONY – COMPETENCE

Great Arrow Builders v. Barry Shemenski (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided October 28, 2022

Issue:

Whether claimant’s expert’s opinion on causation was incompetent because it was based on an inaccurate and incomplete medical history?

Background:

Employer hired Claimant as a union laborer who assisted carpenters working with concrete. Claimant began having neck pain, visited his primary care physician, and started taking pain medication. Claimant then developed severe hip pain, which he believed was from walking on the large rocks. Claimant again visited his primary care physician, who diagnosed back pain. Claimant filed a claim petition. The WCJ credited the testimony of Claimant and claimant’s expert. The WCJ acknowledged that Claimant was a poor historian of his prior treatment history. The WCJ granted Claimant’s petition, and Employer appealed to the Board. The Board acknowledged that claimant’s expert was not familiar with the entire breadth of Claimant’s extensive medical history, but noted that claimant’s expert explained that this history did not affect his opinions.

Holding:

The WCJ is the fact-finder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Here claimant’s expert reviewed Claimant’s various medical records and did not base his expert opinion solely on Claimant’s reported medical history. Employer’s argument goes to the weight of the testimony and not its competency. The WCJ credited claimant’s expert’s and Claimant’s testimony that Claimant’s back injury was a work-related injury. This is the prerogative of the fact-finder. Because there is substantial evidence of record supporting the WCJ’s findings, and because Claimant is entitled to the benefit of all favorable inferences drawn from the evidence, the court agreed with the Board that the WCJ’s findings are neither arbitrary nor capricious, and declined to reweigh the evidence or disturb the WCJ’s credibility determinations.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

Donna Kilgallon v. The Village at Palmerton & Laundry Owners Mutual (WCAB)

Commonwealth Court of Pennsylvania – Unpublished. en banc, Memorandum Opinion

Decided: November 21, 2022

Issue:

Whether claimant met her burden on a Reinstatement from an IRE modification, and is her current petition barred by Res Judicata?

Background:

Claimant sustained a disabling work-related injury on March 3, 2007 and began receiving temporary total disability (TTD) benefits in the fall of 2007. A 2011 IRE returned an impairment rating of less than 50%, and Claimant’s benefits were modified to temporary partial disability (TPD) status with a 500-week limit as of November 28, 2009, the date when Claimant had reached 104 weeks of TTD since her injury. After Protz II, Claimant filed petitions in 2017 seeking reinstatement of her TTD status. The WCJ issued an October 27, 2017, decision granting Claimant’s petitions and reinstating her TTD benefits as of December 16, 2009. In June 2018, during the pendency of Employer’s appeal to the Board, the Court issued the Whitfield Decision. The General Assembly also passed Act 111 of 2018. The Board therefore remanded the matter to the WCJ to reopen the record and address the recent changes in the law. The WCJ, relying on Whitfield, concluded Claimant had not met her burden to show that her injury was ongoing and denied her reinstatement petitions in a June 2019 decision and order. The WCJ also concluded that Act 111 was not relevant as the modification of Claimant’s benefits had taken place under former Section 306(a.2) of the Act. Claimant appealed. While the foregoing litigation was active, Claimant filed the present reinstatement, review, and penalty petitions on October 14, 2020. The petitions, which contain identical wording, assert that as of September 30, 2020, Employer wrongfully stopped Claimant’s benefits on the basis of former Section 306(a.2) of the Act, which was repealed after being found unconstitutional in Protz II. Counsel for Claimant acknowledged that the gist of the current petitions is that Whitfield was wrongly decided. In a May 5, 2021, decision and order, the WCJ restated this Court’s determination in Whitfield that in order to have TTD status restored in the post-Protz II context, the claimant must, at the least, testify credibly that her work-related injury continues. The WCJ determined, and the Board affirmed, that Claimant’s arguments concerning Whitfield had been raised and addressed in her appeal based on her 2017 petitions, which concluded with Kilgallon I, and therefore were precluded pursuant to res judicata principles.

Holding:

In order to secure reinstatement of TTD benefits after Protz II, a claimant “must testify that her work-related injury continues, and the WCJ must credit that testimony over any evidence that an employer presents to the contrary.” Claimant asked the Court to rule again on a claim that she had a full and fair opportunity to (and did) litigate in 2020-21. It was not clear why Claimant decided to relitigate these issues with new petitions in October 2020 when her previous litigation on similar petitions were still active, but her failure to testify that her injury is ongoing, both then and now, dictates the same unsuccessful outcome here on the merits.

Affirmed.

Sherri Corsaro v. Commonwealth of Pennsylvania and Inservco Ins. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decision: November 2, 2022

Issue:

Whether the retroactive application of the IRE process contained in Section 306(a.3) to an injury that occurred before Act 111’s effective date is unconstitutional?

Background:

Claimant was injured during the course and scope of her employment when she slipped and fell on icy pavement and injured her lower back and hips and lacerated her left knee. Employer accepted liability for Claimant’s work injury. In 2020 Employer filed a Petition to Modify, asserting that Claimant’s benefits should be converted from TTD to partial disability based upon an IRE. The WCJ found that Employer had proven that Claimant had a whole-body impairment of zero percent under the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Sixth Edition, Second Printing (Guides). The WCJ modified Claimant’s benefits to partial disability effective the date of the IRE. The Board affirmed the WCJ.

Holding:

Act 111 was not an unconstitutional delegation of legislative authority. No vested right or contractual obligation is involved. An act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events prior to that date. Claimant did not automatically lose anything by the enactment of Act 111. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole[-]body impairment of less than 35%, after receiving 104 weeks of TTD benefits.

Affirmed.

Jacqueline Perillo v. Extended Healthcare Services (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 2, 2022

Issues:

Whether Section 306(a.3) of the Act violates article I, section 11 of the Pennsylvania Constitution, and whether Section 306(a.3) of the Act contains sufficiently specific language to be applied retroactively?

Background:

Claimant suffered an injury in the course of her employment with Employer on October 9, 2003. On May 1, 2019, Claimant underwent an IRE, which returned a 4% impairment rating based on the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. Employer filed a Modification Petition requesting Claimant’s disability status be changed from TTD to TPD as of the date of the IRE. The WCJ granted Employer’s petition and modified Claimant’s status to TPD as of the date of the IRE.

Holding:

Recently, in the published decision of DiPaolo v. UPMC Magee Women’s Hospital (Workers’ Compensation Appeal Board), a panel of the Court rejected a claimant’s argument that Section 306(a.3) of the Act violated article I, section 11 of the Pennsylvania Constitution. For the same reasons outlined therein, the court rejected claimant’s challenges to Section 306(a.3) of the Act.

Affirmed.

William McDonald v. Pennsylvania Turnpike Commission and UPMC Benefit Management Services (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 4, 2022

Issues:

Whether the retroactive application of Act 111 violates the Remedies Clause of the Pennsylvania Constitution and whether the WCJ should have rejected the IRE because Claimant has not received 104 weeks of total disability benefits since Act 111 came into effect?

Background:

Claimant sustained work-related post-traumatic stress disorder. In 2019, Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 20% and that he had reached maximum medical improvement (MMI). The IRE evaluator used the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides). In response, Claimant presented the testimony of a board-certified psychiatrist who opined that Claimant had not reached MMI and that Claimant was incapable of gainful employment, but Claimant’s expert also conceded that he was not certified to perform an IRE. The WCJ concluded that Employer established that Claimant had reached MMI and had a whole-body impairment of 20% and, therefore, granted Employer’s petition, modifying Claimant’s benefits to partial disability status as of the date of the IRE. The Board affirmed.

Holding:

Act 111 does not deprive claimants of a vested right but simply provides employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole-body impairment of less than 35%, after receiving 104 weeks of total temporary disability benefits. The employer credit provision was explicitly given retroactive effect by the General Assembly.

Affirmed.

Choya Force v. Commonwealth of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 10, 2022

Issue:

Whether Act 111 can be retroactively applied to the claimant’s injury?

Background:

Claimant suffered a work-related injury to her back and received total disability benefits. Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 14%. Claimant indicated she was challenging only the applicability of Act 111 because her injury predated the Act. The WCJ granted Employer’s modification petition, reasoning that Employer had proven that Claimant had a 14% whole body impairment, and therefore Claimant should receive partial disability benefits. Claimant appealed to the Board, which affirmed.

Holding:

Claimant sustained her work-related injury before the passage of Act 111. Based upon established precedent, the Board’s application of Act 111 in modifying Claimant’s benefits to partial disability status did not violate the Remedies Clause found in article I, section 11 of the Pennsylvania Constitution because Claimant does not have a vested right to workers’ compensation benefits.

Affirmed.

Benedict J. Doe v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided November 17, 2022

Issues:

Whether Act 111 can be retroactively applied to injuries that occurred before the date when Act 111 became effective and whether Act 111 is an unconstitutional delegation of the General Assembly’s legislative authority?

Background:

Claimant sustained injuries to his hands and face resulting from an electric shock which occurred in the course of his employment. In 2021, Employer submitted a petition to modify Claimant’s benefits from TTD to partial, based on an IRE. That examination, conducted in accordance with the 6th edition of the AMA Guides, assigned Claimant a whole body impairment rating of 19%. The WCJ granted the modification petition and changed Claimant’s benefits to partial status as of the date of the IRE. The Board affirmed the WCJ.

Holding:

The Court noted that it has already considered and rejected the claimant’s arguments. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Further, there is no delegation to the AMA in Section 306(a.3). It does not adopt, sight unseen, future standards or editions of the AMA Guidelines, without guidance by the General Assembly as to the basic policy decisions and standards to restrain the discretion of the entity setting those standards.

Affirmed.

Paul Dick v. Royal Flush Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 18, 2022

Issues:

Whether Act 111 is unconstitutional on its face and can be applied retroactively?

Background:

Claimant sustained injuries to his left femur, tibia, fibula, and kneecap as a result of a motor vehicle collision that occurred in the course of his employment. Employer recognized the injuries via a Notice of Temporary Compensation Payable (NTCP). Employer submitted a modification petition based on the results of an IRE. The examination, which was performed in accordance with the Sixth Edition of the AMA Guides, assigned Claimant a whole body impairment rating of 26%. The WCJ granted the modification petition and changed Claimant’s benefit status from total to partial, effective the date of the IRE.

Holding:

The Court noted that it has already considered and rejected the claimant’s arguments. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Further, there is no delegation to the AMA in Section 306(a.3). It does not adopt, sight unseen, future standards or editions of the AMA Guidelines, without guidance by the General Assembly as to the basic policy decisions and standards to restrain the discretion of the entity setting those standards.

Affirmed.

Jeanie Ellwood v. Pocono Medical Center and PMA Management Corp. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 29, 2022

Issues:

Whether Act 111 can be constitutionally applied to workers whose injuries occurred before the effective date of Act 111 and whether Act 111 contains sufficiently specific language to make the law retroactive?

Background:

Claimant sustained a work-related injury. In 2019, Claimant underwent an IRE, provided for in Section 306(a.3) of the WC Act, which resulted in a whole person impairment rating of 13%. Employer filed a Modification Petition, seeking to modify Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted the Modification Petition. The Board affirmed.

Holding:

Act 111 simply provides employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole-body impairment of less than 35%, after receiving 104 weeks of temporary total disability benefits. That the General Assembly used specific language to give retroactive effect to certain carefully selected individual provisions does not make the entirety of Act 111 retroactive as the amendment lacks clear language to that effect. There is no provision in Act 111 which specifically or implicitly provides for an IRE performed prior to Section 306(a.3) of the Act’s enactment to be validated afterward. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Accordingly, Claimant’s argument that Act 111 does not contain sufficiently specific language to make the law retroactive lacks merit.

Affirmed.

MENTAL INJURIES

Berks Area Regional Transportation Authority v. Lena Katzenmoyer (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 8, 2022

Issue:

Whether incidents to which the claimant was exposed were abnormal working conditions?

Background:

Claimant worked as a bus driver for Employer since 2014. On October 19, 2018, Claimant was driving when she heard and saw shots being fired in her rear-view mirror (October incident). Claimant saw people running up the sidewalk and screaming. Her bus was struck twice by bullets. Two months later, on December 19, 2018, there was a second incident involving Claimant’s bus being shot at and struck by bullets (December incident). Claimant was driving when a big window on the passenger side of the bus was “shot out.” The driver’s side windshield above Claimant’s head was also struck with bullets. Claimant filed two claim petitions, one alleging psychological injury from the October incident, and one alleging psychological injury from the December incident, both of which Employer denied. The WCJ found, and the Board affirmed, that Claimant met her burden of establishing that she had a psychological condition caused by her employment through the unequivocal medical testimony and that Claimant met her burden of proving that her psychological injury was a result of abnormal working conditions, as required by the applicable mental-mental standard. While her manager testified that drivers have a short classroom training on various projectiles hitting the bus and vandalism, Claimant’s situation was far more severe than merely vandalism or rocks being thrown at the bus.

Holding:

Although each individual event could alone rise to the level of an abnormal working condition, the combination of the two within two months of each other even more clearly establishes abnormal working conditions. Although a city bus driver could potentially experience events such as vandalism or projectiles being thrown at the bus, these two events both were far more severe and were highly unusual and traumatic, far outside what bus drivers would be expected to experience at their jobs. Employer does not dispute that Claimant’s bus was shot at and struck by bullets, or that Claimant heard and saw multiple gunshots take place behind her bus during the October incident. The fact that Claimant did not learn until the next day that a person was killed in the incident, or that she did not view the bullet holes in her bus, does not render the Board’s description inaccurate. Mental injuries as a result of abnormal working conditions present a mixed question of law and fact and the question of whether the events may be considered abnormal must be considered in the context of specific employment.

There was no error in the WCJ’s or Board’s conclusion that these two incidents, either separately or together, constituted abnormal working conditions, in the context of Claimant’s job as a bus driver.

Affirmed.

Amy Kratz v. Commonwealth of Pennsylvania, Department of Corrections (WCAB)

Commonwealth Court of Pennsylvania – Unpublished, en banc, Memorandum Opinion

Decided: November 30, 2022

Issues:

Whether Claimant presented evidence of a physical/mental injury that was sufficient to meet her burden of proofe using the physical/mental standard? Whether, the Court should adopt a new standard under the Workers’ Compensation Act for a sexual assault/mental injury?

Background:

Claimant was working as a Registered Nurse for the Department of Corrections (Employer). One day, she was completing an assessment of an inmate, who requested a triage after stating he was not feeling well. While he was taking cough medicine and she was providing verbal instructions and education, he reached over and grabbed between her legs. She then used both hands to push him away. Claimant reported that she had some swelling and tenderness of her genital area for about two or three days afterwards. A few days later, Claimant went to an urgent care office, complaining of anxiety. During her regularly scheduled OB-GYN visit, Claimant was examined by a physician’s assistant. She did not treat with any other providers for her physical symptoms. With regard to her psychological or mental symptoms following the incident, Claimant initially saw her family practitioner who prescribed Xanax, Lexapro, and Trazodone. She then saw a psychiatrist who changed her prescriptions to Effexor, Neurontin and Minipress. She also began to visit a psychologist, for therapy. Claimant filed a claim petition describing the work injury as “swelling and tenderness of genital area, anxiety, depression and sleep disturbance.” The WCJ denied and dismissed Claimant’s claim petition, concluding that Claimant did not sustain a physical/mental injury as a result of the incident. The Board affirmed.

Holding:

Substantial evidence supports the WCJ’s finding Claimant did not establish that her mental injury resulted from a work-related, triggering physical stimulus. First, regarding the physical prong of the physical/mental claim, Claimant argues that she was the victim of a sexual assault, and that sexual assault should be considered a physical stimulus even absent a physical injury. The Court did not need to decide this issue instantly because Claimant failed to meet the second prong of the physical/mental test. Based on the credited evidence, the WCJ found that Claimant did not prove that she suffered a mental injury as the result of the incident. The WCJ credited the opinions of employer’s expert as more credible and persuasive and, based on that evidence, concluded that Claimant did not meet the burden of proof for purposes of establishing that she suffered a compensable mental injury using the physical/mental standard. A WCJ’s credibility determinations are due substantial deference, and such determinations may only be overturned if they are arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational

Affirmed.

JUDICIAL DISCRETION

Joseph Marvelli v. US Foods, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 2, 2022

Issues:

Whether substantial evidence supports the WCJ’s finding that the workplace incident was not the cause of Claimant’s lower back injury? Whether the mechanism of the work injury and the fact testimony establish an obvious causal connection between the injury and the lower back and leg symptoms?

Background:

Claimant worked for Employer, a foodservice distributor, as a territory sales manager. He sustained an injury while taking items for a delivery out of the back seat of his truck. Employer accepted liability for the injury through a medical-only Notice of Compensation Payable (NCP), which described the injury as a strain or tear of the shoulder. Claimant filed review petitions which alleged injuries to the neck, shoulder, and back, including lumbar radiculopathy, as a result of his work-related accident. Employer filed a review petition of its own, requesting that the injury description be amended to refer to “a cervical strain” rather than a shoulder strain. The WCJ denied Claimant’s Petitions and granted Employer’s Review Petition. The WCJ explained that, to the extent that the two medical experts disagree, he found employer’s expert more credible due to claimant’s expert’s failure to examine previous treatment records before forming his opinion. Claimant appealed to the Board, which remanded due to an error in the language of the WCJ’s Order. On remand, the WCJ corrected the error and readopted and reissued all the factual findings and legal conclusions in his earlier opinion. The Board affirmed.

Holding:

When the connection between the injury and the alleged work-related cause is not obvious, it is necessary to establish the cause by unequivocal medical evidence. By deeming a witness’s testimony generally credible, the WCJ does not commit himself to a wholesale adoption of every statement made by that witness. Credibility and persuasiveness are not identical qualities. A WCJ may find a witness completely credible (that is, stating the truth as he or she believes it) without being persuasive (that is, convincing in support of a particular conclusion). Since the inference of a causal connection required unequivocal medical testimony, the WCJ properly looked to the medical experts to form his conclusion. The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight. Unless made arbitrarily or capriciously, the WCJ’s credibility determinations will be upheld on appeal. Since the WCJ’s credibility findings in the instant matter are well supported by the record, there is no reason to regard them as either arbitrary or capricious.

Affirmed.

Olivia Brooks v. Brown’s Super Stores (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 4, 2022

Issue:

Whether the WCJ erred in finding that claimant did not suffer an injury, despite the video, in light of the medical-only NCP, MRI results, and the IME findings of employer’s expert?

Background:

A box fell from a shelf onto Claimant at work (the Incident). The Incident and Claimant’s behavior in the 20 minutes thereafter were captured by Employer’s surveillance footage (Video). Employer issued a Notice of Temporary Compensation Payable (NTCP) accepting the injury as a cervical and lumbar strain and timely filed a medical-only Notice of Compensation Payable (NCP). Thereafter, Claimant filed a claim petition for temporary total disability benefits, alleging injuries to her neck, back, and head. Employer denied the allegations of injury or disability but stated that if an injury did occur, it has since ceased, and was not work-related. Claimant underwent an independent medical examination (IME) which found that she could return to her pre-Incident work because she had fully recovered from her Incident-related injuries of a head contusion and aggravation of a cervical and lumbar sprain/strain. Employer presented the Video, and depositions from its medical expert. Employer’s expert testified that the immense force needed to herniate disks as revealed by an MRI is not depicted on Video. The Video did not show any disorientation or serious injury to Claimant. The WCJ found that Claimant was not injured from the Incident and, thus, failed to establish her burden of proving disability under the Act. The WCJ deemed Claimant’s testimony was totally inconsistent with the Video and that she had exaggerated her injury. Accordingly, the WCJ denied Claimant’s petition for disability benefits. The Board affirmed the WCJ’s decision on appeal.

Holding:

Substantial evidence supports the WCJ’s determination that Claimant did not sustain a compensable injury from the Incident and, thus, is not entitled to disability benefits under the Act. To the extent Claimant disputes the WCJ’s findings, issues of credibility and evidentiary weight are within the sole discretion of the WCJ. An employer’s issuance of a medical-only NCP stops temporary compensation and prevents an automatic NCP conversion. By issuing a medical-only NCP, an employer acknowledges injury and accepts liability for associated medical payments, but nothing more. A claimant still maintains the burden of proving a disabling work injury by competent medical evidence. Further, an employer may successfully terminate a claimant’s benefits where its medical expert recognizes the work injury as described in the NCP and opines that the claimant has fully recovered from that injury. Therefore, the WCJ’s “no injury” finding was not in error but rather is supported by substantial evidence. Finally, the weight the WCJ assigned to the Video is not reviewable by this Court on appeal.

Affirmed.

John W. Pague v. Capital Area Transit Authority (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: November 18, 2022

Issue:

Whether the claimant preserved the issue of whether the WCJ’s findings and credibility determinations are supported by substantial evidence?

Background:

On November 6, 2019, Claimant hit a large pothole while driving a bus in the course of his employment with the Capital Area Transit Authority (Employer). Following this incident, Claimant filed a claim petition, seeking total disability benefits. The WCJ circulated a decision denying Claimant’s claim and penalty petitions. Claimant, pro se, filed an appeal with the Board, stating that he wished to preserve his right to appeal while seeking an attorney to represent him. Regarding the grounds for his appeal, Claimant simply argued that there are “too many errors of the WCJ’s decisions in this work injury case.” The Board dismissed Claimant’s appeal on the basis that it failed to raise any issues with specificity. Even had Claimant preserved any issues for appeal, the Board concluded that the WCJ’s decision was supported by substantial, competent evidence, as the WCJ rejected Claimant’s medical evidence and Claimant was unable to meet his burden of establishing that he suffered a work-related injury.

Holding:

Where a claimant has failed to raise an issue in any manner before the Board, that issue is waived. Claimant’s LIBC-25/26 merely alleges that “there are too many errors of the WCJ’s decisions in this work injury case.” C.R., Item No. 9. Additionally, Claimant stated that he “wish[es] to preserve [his] right to appeal this case while seeking an attorney to represent [him] in this matter[,]” Claimant’s general allegations of error on the WCJ’s part, and his desire to preserve the right to appeal while seeking legal representation, do not absolve Claimant of the obligation to comply with the requirements of Section 111.11(a)(2). Accordingly, the Board did not err in dismissing Claimant’s appeal based on his failure to raise any issues with specificity. Further, Claimant waived the issues raised in his petition for review, as those issues were not raised before the Board. Even if Claimant had challenged those findings in his appeal, Claimant failed to support the arguments in his brief with pertinent legal authority, as required by Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure. The Court will not consider the merits of an issue that is not properly raised and developed in a brief.

Affirmed.

COURSE AND SCOPE STANDARD

Barbara Wormley v. Air Wisconsin Airlines (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: November 22, 2022

Issue:

Whether the WCJ and the Board erred in concluding that claimant’s injury did not occur in the course and scope of her employment?

Background:

Claimant works as a flight attendant for Air Wisconsin Airlines (Employer). Claimant fell on a SEPTA train platform attempting to get on a train on her way to work. Claimant filed a claim petition alleging a work injury. The WCJ found that Claimant was not a traveling employee, explaining that she had a fixed place of employment at Chicago O’Hare Airport. The WCJ found that when Claimant was injured, she was commuting to work and was not on Employer’s premises. Claimant was responsible for getting herself to the airport to get a flight to Chicago O’Hare. Employer did not provide transportation for its employees to and from work; it only provided general flight privileges from airport to airport. Therefore, the WCJ concluded that Claimant did not meet her burden of proving that she was in the course of employment when she was injured at the train station and denied her claim petition. The Board affirmed. On Appeal, claimant argues that her injury was compensable because she was on her way to work, in uniform, and traveling by train to the Philadelphia Airport to fly to Chicago O’Hare Airport, which was a reasonable way for her to access Employer’s premises.

Holding:

Claimant was not engaged in furthering the activities of Employer when she was injured. The injury occurred the day before she was scheduled to work out of Chicago O’Hare. Additionally, the train station is not part of its premises because it did not issue any directive or exercise control over the mode of its employees’ transportation to and from work. Claimant does not assert that she was furthering Employer’s business when she was injured. Rather, Claimant argues that she was injured on Employer’s premises. However, Employer does not own, maintain, or control the train or the train platform, and the train is not a part of Employer’s business, Claimant did not show an injury on its premises. Whether the injury occurred on the employer’s “premises” under Section 301(c)(1) of the Act turns on whether the site of the accident is so connected with the employer’s business as to form an integral part thereof. The critical factor is not the employer’s title to or control over the area, but rather the fact that the employer had caused the area to be used by its employees in performance of their assigned tasks. Claimant fell on a train platform. The train and its platform were not a place where Employer’s “business or affairs are being carried on,” or where Claimant’s “presence thereon was required by the nature of her employment.” Claimant presented no evidence that her presence on the train was required by the nature of her employment. Claimant was not reimbursed for any travel and could have chosen any means to get to the Philadelphia Airport, or, for that matter, to Chicago. The trains were not provided for airport employees and Claimant was not entering or exiting her workplace within a reasonable time before or after her shift.

Affirmed.

WORKERS’ COMPENSATION INSURANCE COVERAGE

Connect A Care Network, LLC v. SWIF and Elaine Davis (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 17, 2022

Issue:

Whether Employer had an effective workers’ compensation policy with SWIF on the date of Claimant’s injury?

Background:

Claimant’s initial petition alleged that she sustained extensive injuries when she was assaulted by a client of Employer and sought total disability benefits. Subsequently, Claimant filed an uninsured claim petition against Employer and the Uninsured Employers Guaranty Fund (UEGF). Thereafter, Claimant filed a joinder petition against SWIF contending that it was Employer’s workers’ compensation carrier on the date of the injury. SWIF filed a joinder petition against UPMC Work Partners alleging that it provided coverage for Employer on the date of the injury. SWIF presented testimony that Employer did not have a workers’ compensation policy in effect with SWIF on the date of the injury, the policy having been cancelled by Employer prior to the injury. Employer was in the process, but had yet to finalize, the application for a new policy on the date of the injury. The WCJ ultimately found that Employer did not have workers’ compensation coverage through either SWIF or UPMC Work Partners. The Board affirmed the WCJ’s conclusion that Employer did not have a policy with SWIF in effect on the date of the injury.

Holding:

It is well established that a WCJ has jurisdiction to determine questions of insurance coverage. This jurisdiction includes authority to determine whether or not a policy has been cancelled. The WCJ is the finder of fact and is free to accept or reject, in whole or in part, the testimony of any witness. There is substantial, competent evidence in the record to support the WCJ’s findings, and the Court does not have the authority to review the WCJ’s well-reasoned credibility determinations.

Affirmed.

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

10/25/2022-11/30/2022

TIMELINESS OF APPEAL

Orellana v. Zaklikovsky et al.

Superior Court of New Jersey, Appellate Division

No. A-0780-21; 2022 WL 16595920

Decided: 10/31/2022

Background:

Petitioner was employed by Chabad as a domestic helper for the Zaklikovskys. On August 23, 2017, petitioner was injured at the Zaklikovsky residence in the course of her employment, causing a left knee meniscal tear and lumbar and cervical herniations. Petitioner filed a workers’ compensation petition against Chabad, but they did not maintain workers’ compensation insurance at the time, so she then amended her petition to assert claims against the Zaklikovskys. On April 16, 2018, a judge of compensation entered an order against Chabad, awarding petitioner temporary disability benefits and payment of medical treatment. Chabad appealed, and on October 9, 2019 the court affirmed, and found that respondents did not defend the motion, and therefore relinquished the right to control petitioner’s treatment.

On May 19, 2020, the judge of compensation awarded petitioner both temporary and permanent disability benefits. The judge also placed the case on the discontinuance list, closing the case temporarily until a new judge was assigned. Respondents did not appeal the award. On May 8, 2021, petitioner filed a motion to reinstate the matter from the discontinuance list as to the Uninsured Employers Fund (UEF).

On October 5, 2021, the compensation court granted petitioner’s request to reinstate the case, but the judge immediately closed the case, thereby dismissing petitioner’s request for additional compensation without prejudice and reaffirming the judgments of April 16, 2018 and May 19, 2020. At not time during the October 5 hearing did the Respondents challenge the May 19, 2020 award of permanent disability benefits.

Holding:

The court stated that “appeals from final judgments of courts, final judgments or orders of judges sitting as statutory agents, and final judgments of the [DWC] shall be filed within 45 days of their entry.” The court held that both the April 16, 2018 and May 19, 2020 Orders were final judgments of the DWC and therefore Respondents’ appeal is time-barred. Respondents did timely appeal the April 16, 2018 order awarding temporary disability benefits, which the court affirmed. The court stated that there is no reason for continued discussion of that Order, and Respondent’s appeal of the May 19, 2020 order istime-barred, as the time to appeal that Order expired on June 29, 2020. Finally, the court notes that at no point in the underlying proceedings did Respondents raise an objection or move to vacate the May 2020 award, and the challenge is raised for the first time in the instant appeal.

Affirmed.

CAUSATION

Pace v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-2685-20; 2022 WL 16709530

Decided: 11/04/2022

Background:

Pace was employed as a maintenance janitor for the Lower Township Board of Education. Prior to August 2017, he never had any complaints or treatment related to his neck. On August 21, 2017, Pace fell into an uncovered manhole on school property. Afterwards, he reported neck and back pain. Pace treated with his workers’ compensation doctor, Dr. Glass, who eventually ordered cervical and lumbar MRIs. The MRI of Pace’s neck revealed herniated discs at four levels, requiring immediate neck surgery instead of the lumbar surgery originally proposed. Dr. Glass performed a three-level cervical fusion of Pace on August 1, 2018, after which Pace was unable to lift more than 10 pounds, causing him to be unable to return to work.

On October 10, 2018, Pace applied to the Board for accidental disability retirement benefits. The Board denied Pace’s application, finding his disability was not a direct result of the August 2017 incident, but was the result of pre-existing disease alone, or that was aggravated or accelerated by the incident. Pace appealed, and the matter was transferred to the Office of Administrative Law. Dr. David Weiss testified on behalf of Pace, and Dr. Arnold Berman testified on behalf of the Board. On February 8, 2021, the ALJ determined Pace was entitled to accidental disability retirement benefits. She further concluded that Dr. Berman’s findings were not substantially supported by the record, and that Dr. Weiss was more credible.

On March 17, 2021, the Board rejected the ALJ’s determination, and found that “Pace failed to meet his burden of proof because: 1) he had neck issues prior to the incident; 2) both experts agreed that Mr. Pace had aggravated pre-existing conditions and a cervical surgery that combined to cause his disability; 3) the ALJ applied a ‘but for’ standard, which Dr. Weiss disagreed with, that is not applicable and relied on a hearsay document created by a physician not subject to direct or cross examination, which should be given zero weight in rendering a decision; and 4) Dr. Berman, the better credentialed medical expert, should be given more weight because he reliably explained how the mechanism of injury could not have caused the seen herniations.” Pace appealed the Board’s denial.

Holding:

Accidental disability retirement benefits require that an employee show that he is “permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties.” The court refers to the Gerba case, which held that an applicant for accidental disability retirement benefits only needs to show a traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability. (Gerba v. Board of Trustees, Public Employees’ Retirement System, 83 N.J. 174 (1980)).

The court stated that based on the review of the record, they are satisfied that the Board’s decision was arbitrary, capricious, and untethered to the credible evidence in the record before the ALJ. The court agrees with the ALJ that Pace’s cervical fusion was substantially caused by the August 2017 incident. The court also noted that there is no evidence in the record that Pace had any injury or treatment to his neck prior to August 2017, and there is nothing in the record to support the conclusion that Pace received medical treatment for his neck prior to the August 2017 work incident, and therefore he is entitled to an award of accidental disability retirement benefits.

Reversed.

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

Superior Court of New Jersey, Appellate Division

No. A-0776-20; 2022 WL 16825484

Decided: 11/09/2022

Background:

On May 11, 2011, petitioner filed an application for accidental disability retirement benefits based on a July 18, 2008 incident. Kim alleged he had orthopedic, psychologic, and psychiatric residuals of injury to his left hand, anxiety, and depression. On July 18, 2008 he alleged he shot a crime suspect and since had anxiety, depression, loss of sleep and appetite, and adjustment disorder.

During a May 2012 meeting, the Board found petitioner was totally and permanently disabled from his duties as a result of the July 18, 2008 incident and granted ordinary disability retirement benefits. Accidental disability retirement benefits were denied because the disability did not result from “direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, and or a similarly serious threat to the physical integrity of the member or another person.” Kim appealed the decision. The Board reconsidered in December 2018, and again denied his application for accidental disability retirement benefits. The Board also reversed the finding that his disability was a direct result of the July 2008 incident, and determined it was multicausal.

An ALJ had a hearing in July 2019. Petitioner, petitioner’s expert Dr. Puig, and the Board’s expert Dr. LoPreto testified. The focus of the hearing was whether the 2008 incident was not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury and if that resulted from direct personal experience of a terrifying or horror-inducing event. Petitioner stated that the 2008 incident occurred when he heard shuffling of feet at a call, and saw a person point a gun at him, causing him to fire his weapon. After a short pursuit, petitioner found a man lying on the ground, and believed he had shot and killed him, but in fact, the person was unharmed, and no gun was found. Petitioner continued to work for the Camden City Police Department until 2011. Petitioner also testified that he experienced workplace harassment in connection with his Korean heritage.

Dr. Puig first saw petitioner in 2008, diagnosed him with PTSD after seeing him once, and opined he could not return to work. Dr. Puig next saw him in 2017, when he opined that petitioner was already chronically traumatized by the harassment, and the July 2008 incident was the catalyst that brought the PTSD symptomatology into chaos from which he has not recovered. Dr. LoPreto evaluated petitioner on January 18, 2012, and initially found petitioner to be totally and permanently disabled and this was a direct result of the July 2008 incident and not associated with or accelerated by a pre-existing condition. He did feel that a more appropriate diagnosis was acute stress disorder and not PTSD. After revieing Dr. Puig’s 2018 report, Dr. LoPreto issued an addendum, opining that no workplace harassment had been disclosed to him, and he could no longer attribute petitioner’s disability significantly and substantially to the incident in July 2008. Reports

In September 2020, the ALJ found that Dr. LoPreto was more credible than that of Dr. Puig, and that petitioner was not entitled to accidental disability retirement benefits, and affirmed the Board’s denial. Petitioner filed exceptions with the Board, and the Board adopted the ALJ’s decision denying his application for accidental disability retirement benefits. Petitioner appealed.

28

Holding:

The court cites the Patterson case, which determined that the standard governing a claim for accidental disability retirement benefits is premised on a permanent mental disability resulting from a mental stressor without any physical impact. The court also cites Richardson, which held that the disability must have resulted from “direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person,” and limited accidental disability to stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances of Drs. Kelly and Glass were also submitted, neither of which mentioned workplace harassment.

The court held that the credibility determinations of the ALJ plus the undisputed facts support the ALJ’s determination that the petitioner did not meet the Patterson threshold because he did not prove that the July 2008 incident was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury. The court also held that petitioner failed to establish the Richardson standard that his disability was the direct result of a traumatic event. Therefore, the court stated that there was nothing arbitrary, capricious, or unreasonable about the Board’s adoption of the ALJ’s decision.

Affirmed.

SUMMARY JUDGMENT

Herrera v. Shoprite of Northvale, Inserra Supermarkets, Inc.

Superior Court of New Jersey, Appellate Division

No. A-1136-21; 2022 WL 16825972

Decided: 11/09/2022

Background:

Plaintiff stated he was employed by defendant for many years and suffered an injury at work. He claimed he notified a supervisor about the injury, who told him not to file a workers’ compensation claim and he would be terminated if he did not comply. Defendant fired plaintiff a few years later. Plaintiff alleged that defendant: 1) wrongfully terminated him; 2) subjected him to a hostile work environment in violation of the Law Against Discrimination, 3) discriminated against him based on his age, and 4) caused him emotional distress. Claimant alleged that a supervisor named Daniel Ortiz is the one who threatened to fire him, and his coworkers teased him about his age and made him do difficult tasks to prove he was not old. He also alleged that he was forced to work even though he was injured.

At the close of discovery, defendant filed for summary judgment, and provided documentation concerning plaintiff’s workers’ compensation claim. Defendant stated that after Thanksgiving 2016, plaintiff called out sick for several days, then reported he had injured his shoulder at the store before the holiday. In January 2017, an assistant store manager filed an accident report with NJM, defendant’s workers’ compensation carrier. That month plaintiff submitted a claim for temporary disability benefits. Plaintiff’s treating physician certified that plaintiff’s injury was not work-related. In April 2017, NJM denied coverage of plaintiff’s injury based at least partly on the physician’s certification. The State granted plaintiff’s application for temporary disability benefits.

Plaintiff was out of work between November 2016 and May 7, 2017, at which time plaintiff returned to work and was transferred to the produce department, which was less physically demanding than his prior position. Two years later, plaintiff told several supervisors that he planned to retire, and on his last day, May 31, 2019, his department threw him a retirement celebration. Plaintiff never filed a report regarding harassment to HR. Without producing any evidence, plaintiff opposed defendant’s motion for summary judgment, and in fact only disputed one of defendant’s undisputed facts.

After conducting oral arguments, Judge Harz granted defendant’s motion for summary judgment and dismissed all four counts of plaintiff’s complaint. This appeal followed.

Holding:

The court held that it is satisfied that Judge Harz properly granted summary judgment to defendant, and it affirms her opinion. The court adds that the material facts of the matter are not in dispute: defendant did not object to plaintiff filing a workers’ compensation claim, and in fact filed one for him; NJM denied the claim because plaintiff’s doctor certified he was not injured at work; and defendant helped plaintiff with his application for temporary disability benefits, gave him extended leave, and moved him to a less physically demanding area. Plaintiff was unable to identify any of the employees that he alleged harassed him, and could provide no additional details about their actions.

Affirmed.

CASE SUMMARIES 10/01/2022 to 10/25/2022

Nov 2, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

10/01/2022 – 10/25/2022

EMPLOYMENT RELATIONSHIP

IDI Logistics, Inc. v. Larry Clayton and Uninsured Employers Guarantee Fund (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided October 18, 2022

Issue:

Whether Claimant was Employer’s employee and not an independent contractor? Whether Employer established that it offered Claimant valid light-duty work?

Background:

Claimant filed a claim petition against Employer seeking medical and wage loss benefits for a work-related left wrist injury. Claimant also filed a claim petition against the Uninsured Employers Guaranty Fund (UEGF). The workers’ compensation judge (WCJ) issued an opinion concluding that Claimant had not established employee status. The Board noted that employment status is a question of law reviewable on appeal, albeit based on facts of record, and emphasized Employer’s control in assigning loads to drivers, paying drivers by the mile rather than by the load or job, paying for gas and insurance for its trucks, requiring use of its trucks for its jobs, and forbidding drivers from using its trucks to drive for other companies; the Board also observed that trucking was part of Employer’s regular business. The Board concluded that the independent contractor agreement Claimant signed was not dispositive when considered against the evidence favoring employee status. The Board remanded to the WCJ for determination of the extent and duration of Claimant’s disability.  On remand, the WCJ did not take further evidence other than a stipulation by counsel that Claimant returned to work with a new employer at a higher rate of pay in October 2018.  The WCJ concluded that Employer had not offered Claimant specific light-duty work during his period of disability.  On Employer’s post-remand appeal, the Board affirmed, finding Employer’s offer to pay Claimant for riding along with other drivers lacked the requisite specificity and documentation to warrant a suspension of benefits. The Board reaffirmed its previous conclusion that Claimant was an employee rather than an independent contractor.

Holding:

Under Sections 103 and 104 of the Workers’ Compensation Act (Act), an independent contractor is not entitled to benefits, due to the absence of a master/servant relationship.  Employer and UEGF argue that Claimant did not establish employment status because Claimant failed to show that Employer had the right to control Claimant’s work; therefore, the Board erred in reweighing the evidence and reversing the WCJ.   Many facts weigh in favor of finding employee status. Employer owned and insured the trucks and paid for gas. Claimant did not keep Employer’s trucks at his home when he was not working. He was free to work for other companies but could not use Employer’s trucks to do so. While on the road in Employer’s truck, Claimant would call in to Employer’s dispatcher and receive another assignment; Employer apparently also would call Claimant and offer assignments.  Here Claimant could refuse an assignment. But the ability to refuse an assignment is not dispositive of contractor status.  Also, the company barred its drivers from using its trucks for outside work. Claimant was guaranteed payment for each mile he drove Employer’s truck. Payment by the mile is a variation on payment by the hour, which is the hallmark of an employment relationship. The entire risk here is borne by Employer, who must pay Claimant for each mile he drives regardless of what the customer pays or, even, does not pay Employer.  Employment status is a question of law fully reviewable on appeal. The facts here, viewed reasonably and in the unique context of the trucking industry, sufficiently support an inference that Claimant was an employee.  Further, the WCJ did not err in finding that Employer’s job offer lacked sufficient specificity. Employer’s offer to pay Claimant for riding along with other drivers does not include the date when the offer would take effect or expire, a rate of pay, a schedule, or an assurance that the work would remain within Claimant’s insured capacity. There is no indication that Employer’s offer was in bad faith or deliberately vague, but the WCJ was within his discretionary authority in finding it insufficient to limit or negate an award of benefits.

Affirmed.

Patricia Duty and Debra Miller, Admin. of the Est. of Jennifer Wright v. WCAB (Johnson Controls, Inc., Master Staffing, LLC, Zurich American Ins. Co., and Arch Ins. Co.)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 19, 2022

Issue:

Whether the temporary employment agency or the company to whom an employee was assigned was the employer for purposes of the Workers’ Compensation Act?

Background:

Claimants, on behalf of the two minor children of Decedent, petitioned for review of the order of the Workers’ Compensation Appeal Board affirming the decision and order of the Workers’ Compensation Judge (WCJ), who granted Claimants’ fatal claim petition against Johnson Controls, Inc. (JCI). It was the prevailing Claimants who sought to shift liability for benefits to Master Staffing; JCI had accepted liability for benefits.  Decedent was hired by Master Staffing, a temp agency, which referred her as a potential worker to JCI, a client company manufacturing air-handling equipment.  Claimants filed a fatal claim petition against JCI.  JCI filed a joinder petition alleging that Master Staffing might have been Decedent’s employer.

Holding:

The right to control the performance of work is the overriding factor here.   The WCJ found, based on credible testimony, that JCI instructed Decedent as to how to perform her job duties at its facility; that JCI could and did direct Decedent as to when her shift started, when to take breaks, and which department she would work in on a particular day; that JCI provided the equipment, uniforms, and safety gear that Decedent needed to perform her job duties at its facility; that JCI determined if Decedent was performing the work properly or if any disciplinary issues needed to be addressed; and that Decedent contacted JCI directly if she had to call off work and required a JCI employee’s permission to take off. Master Staffing had no representatives present at the JCI facility and provided no input concerning the Decedent’s day-to-day activities performed there. The Board did not err in affirming the decision of the WCJ with respect to JCI being Decedent’s borrowing employer.  The identity of the insurer is not relevant to the central inquiry of this case, which is who had the right to control the manner of Decedent’s work.  The provision of workers’ compensation coverage may be considered but is not a determinative factor of whether an employee is borrowed.  Note: The Court referred to the Act’s “exclusivity provision,” as the “elephant in the room,” and the driving force behind this case.  Claimants wanted to sue JCI in a third party lawsuit and JCI wanted to avoid such a suit.

Affirmed.

SUMMARY RELIEF

Walter T. Swierbinski v. Uninsured Employers Guaranty Fund

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 20, 2022

Issue:

Whether the Petitioner may obtain mandamus relief by means of an order compelling the Uninsured Employers Guaranty Fund (Fund) to pay Petitioner workers’ compensation benefits awarded by a workers’ compensation judge (WCJ)?

Background:

Petitioner sustained a work injury. Employer did not carry workers’ compensation insurance, and Petitioner filed a claim petition naming the Fund, as well as the employer.  The WCJ directed that the Fund pay wage loss benefits to Petitioner in the amount of $453.33 per week with a credit for payments in lieu of compensation Petitioner received from Employer.  The Fund appealed the WCJ’s decision to the Workers’ Compensation Appeal Board (Board).  The Board denied supersedeas.  Petitioner filed his Petition for Relief (PFR) seeking the Fund’s compliance with the WCJ’s order, alleging that the Fund has failed and refused to comply with the WCJ’s order to pay Petitioner compensation. Petitioner requested judgment in his favor and an order directing that the Fund pay Petitioner’s compensation as awarded by the WCJ.   Subsequent to Petitioner’s filing of the PFR, the Board issued an order reversing the WCJ on the basis that Petitioner’s claim against the Fund was barred by Section 1603(b) of the Act, for failing to notify the Fund within 45 days.

Discussion:

An application for summary relief is evaluated according to the standards for summary judgment.  Petitioner does not have a right to the relief requested, as he cannot meet the requirements for mandamus relief. Specifically, Petitioner has an adequate remedy at law, pursuant to Section 428 of the Act, 77 P.S. § 921, which provides as follows: Whenever the employer shall be in default in compensation payments for thirty days or more, the employee or dependents entitled to compensation thereunder may file a certified copy of the agreement and the order of the department approving the same or of the award or order with the prothonotary of the court of common pleas of any county, and the prothonotary shall enter the entire balance payable under the agreement, award or order to be payable to the employee or his dependents, as a judgment against the employer or insurer liable under such agreement or award.  In the absence of language to the contrary, Section 428 of the Act is applicable to the Fund.

Application Denied.

VIOLATION OF POSITIVE ORDER

Fine Arts Discovery Series, Inc. v. Daniel Critton (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: October 20, 2022

Issue:

Whether Claimant violated Employer’s positive work order when he used the rear entrance of the theater, therefore removing him from the course of his employment at the time of his injury?

Background:

Claimant suffered a work injury when he slipped and fell on ice while utilizing the rear entrance of a theater operated by Employer. Employer denied liability for Claimant’s injury on the basis that Claimant violated Employer’s policy against entering the theater through the rear door and therefore Claimant’s injury was not sustained in the course of employment.   The WCJ noted that the affirmative defense of violating a positive work order requires that an employer demonstrate that a policy existed, of which the claimant was aware, and that the claimant’s violation of the policy removed him from the course of employment and concluded that employer failed to demonstrate that Claimant’s use of the rear entrance removed him from the course of his employment. The WCJ disagreed with the employer. The Board affirmed the WCJ.

Holding:

To assert the defense that a claimant was in violation of a positive work order at the time he sustained an injury, the employer must prove that (1) the injury was caused by the claimant’s violation of the order; (2) the claimant actually knew of the order; and (3) the order implicated an activity that was not connected with the claimant’s work duties. An injury sustained in the performance of an act that is connected to a claimant’s work duties is compensable, even if the act itself violates the employer’s positive work order.  Employer had not specified how Claimant’s use of the rear entrance versus the alternate entrance in the front has so removed him from his duties as a security guard that the activity should render him a stranger or trespasser.  One of Employer’s witnesses testified that security personnel are occasionally stationed at the rear entrance of the theater, and Employer presented no evidence that Claimant’s duties as a security guard did not encompass this location. Consequently, it cannot be said that the rear entrance to the theater was a location at which Claimant had no duty to perform and his presence there could be likened to that of a stranger or trespasser. At the time of his injury, Claimant was simply attempting to access the building to begin his work duties. It cannot be said that such an activity is so disconnected from Claimant’s job duties that he was removed from the course of employment when he was injured.

Affirmed.

IMPAIRMENT RATINGS

Saundra Fanning v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided October 6, 2022

Issues:

Whether the WCJ erred in reinstating TTD benefits as of the date the Claimant filed her reinstatement petition instead of the date her disability status was modified from total to partial?

Background:

Claimant was working for the City of Philadelphia (Employer) as a police officer when she sustained injuries to her left arm, right ankle, and back in 1999. A 2013 decision by a WCJ modified Claimant’s disability status from total to partial as of August 7, 2012, the date of an IRE.  On March 9, 2020, Claimant filed a petition seeking reinstatement of TTD benefits arguing that, because the method of the 2012 IRE was ruled unconstitutional in Protz II, she was entitled to a reinstatement of benefits as of the date that the IRE was performed.  In its 2021 decision, the WCJ granted Claimant’s petition and reinstated her TTD benefits as of the date the petition was filed. The Board affirmed.

Holding:

Claimant filed her reinstatement petition on March 9, 2020, well after the Supreme Court issued its Protz II decision, thus precluding retroactive application. Because Claimant did not challenge her 2012 IRE until after Protz II was decided, she is entitled to a reinstatement of benefits as of the date that her reinstatement petition was filed. Claimant has no vested property right to earlier TTD benefits, or to any other workers’ compensation benefits.

Affirmed.

Raymond George v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided October 11, 2022

Issue:

Whether the Board erred by affirming the WCJ’s decision reinstating his temporary total disability (TTD) benefits effective the date the claimant filed his reinstatement petition, instead of the date benefits were originally modified?

Background:

In 1999 the Claimant sustained injuries while in the course and scope of his employment as a police officer for Employer, for which he received TTD. In 2012, Claimant underwent an Impairment Rating Evaluation (IRE) during which the doctor determined that Claimant had an 8% whole-body impairment. Based upon the parties’ agreement memorialized in a 2012 WCJ decision, Claimant’s status was modified to temporary partial disability (TPD) effective January 5, 2012.  Based upon Protz II, on May 14, 2019, before 500 weeks of Claimant’s TPD expired, Claimant filed the Reinstatement Petition to have his TTD reinstated effective January 5, 2012.  On September 17, 2019, Claimant underwent a new IRE which determined that Claimant had a 6% whole-body impairment.  Employer filed a Modification Petition, claiming that Claimant’s disability status should again be changed to TPD effective September 17, 2019.  The WCJ granted the Reinstatement Petition effective as of the May 14, 2019 Reinstatement Petition filing date and granted the Modification Petition effective as of the September 17, 2019 IRE date, with a credit against the 500-week partial disability cap for the weeks Employer paid Claimant TPD. Claimant appealed from the portions of the WCJ’s decision granting the Reinstatement and Modification Petitions to the Board. The Board affirmed.

Holding:

The Board did not err by upholding the WCJ determinations granting Claimant’s Reinstatement Petition effective May 14, 2019 and granting the Modification Petition effective September 17, 2019.  Claimant did not challenge the validity of the January 5, 2012 IRE until after Protz II was decided.  Therefore, Claimant is not entitled to reinstatement of total disability benefits as of the IRE date but, rather, at the time he filed his reinstatement petition.   This is consistent with the overall remedial purpose and humanitarian objective of the Act, which is intended to benefit the injured worker.   Further, based on the Court’s previous rulings that Act 111 is constitutional and applicable to injuries occurring prior to October 24, 2018, the Board properly upheld the WCJ’s decision granting the Modification Petition effective as of the September 17, 2019 IRE date.

Affirmed.

COUNSEL FEES

Stanley Magurczek v. Philadelphia Federal Credit Union (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 20, 2022

Issue:

Whether, and to what extent, the Claimant is entitled to summary relief as to counsel fees in light of the Lorino holding.

Background:

Employer filed a request for utilization review.  The Bureau denied the UR Request. In response, Employer applied for review by a workers’ compensation judge (WCJ). The WCJ affirmed the Bureau’s determination but held that Employer had a reasonable basis for filing the UR Request.  The WCJ then awarded $2,500 in attorney’s fees to Claimant’s counsel (Counsel) pursuant to Section 440(a) of the Act.  The Board reversed the WCJ’s award of attorney’s fees on the basis that Section 440 of the Act only allows an award of attorney’s fees for an unreasonable contest.   Claimant seeks summary relief pursuant to Pa. R.A.P. 1532(b), which allows for immediate disposition of an appeal where the right of the applicant thereto is clear.

Holding:

Lorino repudiated the reasoning relied upon by the Board to deny claimant an award of attorney’s fees. Lorino did overturn the Court’s longstanding rule that Section 440 only allowed attorney’s fees if the employer engaged in an unreasonable contest.  Lorino held that where the employer has established a reasonable basis for its contest the WCJ is permitted, but not required, to exclude an award of attorney’s fees.  Based upon Lorino, The Court granted the claimant’s application to the extent it sought reversal of the Board’s holding that attorney’s fees under Section 440 are automatically excluded where there was a reasonable basis for filing the UR Request.

Reversed and Remanded.

LITIGATION COSTS

Denise Lawhorne v. Lutron Electronics Co., Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 18, 2022

Issue:

Whether the WCJ erred or abused his discretion in denying reimbursement of claimant’s medical expert’s deposition fee where Claimant prevailed on a disputed issue in the litigation of the Termination Petition?

Background:

Claimant sustained an injury in the course and scope of her employment with Employer. Employer recognized the injury as a left-hand strain.  Thereafter, Claimant filed a Review Petition to expand the description of her injury to include a left shoulder strain, left carpal tunnel syndrome, left wrist strain, left elbow strain, and left arm strain. She also filed Reinstatement and Penalty Petitions.  Employer later filed a Termination Petition.  Ultimately, the WCJ rejected the testimony of Claimant and her medical expert, as well as Employer’s medical expert, as not credible and detailed his reasons why. The WCJ concluded that Claimant successfully defended the Termination Petition and was entitled to ongoing partial disability benefits. Because Claimant prevailed in part, the WCJ awarded Claimant reimbursement for litigation costs, but less the $3,800 fee for claimant’s expert’s deposition because he rejected the doctor’s testimony as not credible.   Claimant appealed the WCJ’s decision to the Board, which affirmed. With regard to the denial of the expert’s fee, the Board echoed that, although Claimant successfully defended against the Termination Petition, its expert’s deposition did not contribute to Claimant’s success because the WCJ rejected his testimony as not credible. Thus, the Board declined to disturb the WCJ’s denial of reimbursement.

Holding:

Section 440(a) of the Workers’ Compensation Act (Act) authorizes an award to a claimant for litigation costs where the claimant prevails in part or in whole.  For litigation costs to be reasonable, the WCJ must ascertain the extent to which they relate to the matter at issue on which the claimant prevailed.  The costs incurred do not have to contribute to the success of the matter at issue. In situations where an employer unreasonably contests a particular issue, attorney’s fees are assessed in an amount attributable to the litigation of that issue, and not the entire claim. This rationale for apportionment of attorney’s fees logically extends to other litigation costs where a claimant prevails in part.  Claimant partially prevailed in the litigation by successfully defending against the Termination Petition, Claimant is entitled to recoup any costs related thereto. The Court reversed the Board’s determination insofar as it affirmed the WCJ’s complete denial of claimant’s expert’s fee and remanded for the WCJ to calculate and assess an award of the medical expert’s fee insofar as it reasonably related to the issue of whether Claimant had fully recovered from her work-related injury upon which Claimant prevailed.

Reversed and Remanded.

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

10/1/2022-10/25/2022

SCOURSE OF EMPLOYMENT

Keim v. Above All Termite & Pest Control

Superior Court of New Jersey, Appellate Division

No. A-3660-20; 2022 WL 6833581

Decided: 10/12/2022

Background:

Keim was employed by Above All as a pesticide applicator. He traveled from his home in a company vehicle to job sites, and obtained supplies from Above All’s shop in Forked River. Michael Zummo, the owner of Above All, directed employees not to carry large quantities of pesticides and supplies in their company vehicles because of risk of exposure to the elements and the risk that they will be stolen.

On July 16, 2020, Keim was on his way to Above All’s shop to replenish the supplies he would need for the day, when he was in a series motor vehicle accident, causing his head to hit the inside of the vehicle and for him to lose consciousness, as well as injuries to his left flank and ribs. Keim reported the accident. Two months later, Keim was experiencing balance issues and reported the symptoms to Above All, who advised him to seek medical attention, eventually requiring surgery. On October 21, 2020, Keim filed a workers’ compensation employee claim petition. Above All then filed a motion to dismiss, alleging that Keim’s injuries did not occur in the course of his employment. On July 13, 2021, the Judge of Compensation (JWC) issued an oral decision and order dismissing Keim’s petition with prejudice, determining that Keim’s injuries were not compensable because they did not arise within the course and scope of his employment. Keim appealed.

Holding:

Keim argued that he was performing duties required by Zummo, and was not commuting to work, but instead was engaged in an activity that was specifically directed by his employer, namely driving his company vehicle to Above All’s shop to retrieve the necessary supplies for his workday. The court gives a history of the “going and coming” rule, and how it was replaced with the premises rule. The premises rule states that an injury arises in the course of employment if it occurs on the employer’s premises. However, this rule has two notable exceptions: 1) the special mission exception, and 2) the authorized operation of a business vehicle. The court holds that the activities in this matter fall under the second exception, which states that the authorized operation of a business vehicle on business authorized by the employer is an exception to the premises rule.

The court further held that “when an employer directs or requires an employee to undertake an activity, that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment.” The court also distinguishes that employees who work off-premises are within the scope of their employment when they are where they are supposed to be and doing what they are supposed to be doing, except when they are commuting.

The court holds that Keim was within the course and scope of his employment at the time of the accident and was performing duties that were expressly authorized and directed by his employer, which falls within the authorized operation of a business vehicle exception, and therefore his injuries are compensable under the Act.

Reversed and Remanded.

PA & NJ – CASE SUMMARIES 8/01/2022 to 8/31/2022

Sep 13, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

8/01/2022 – 8/30/2022

SUBPOENA ENFORCEMENT

 Jo Jo Pizza and Eastern Alliance Ins. Co. v. Larry Pitt & Associates

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 5, 2022

Issues:

Whether the WCJ lacked subject matter jurisdiction to address Employer’s petitions and issue the subpoena because the benefits portion of the workers’ compensation matter concluded years earlier when the parties completed the C&R?  Whether the WCJ, an officer of the executive branch, violated separation of powers principles by allegedly seeking a contempt order in the trial court against Attorney Pitt?

Background:

Claimant slipped and fell on ice in Employer’s parking lot.  Attorney Pitt filed a workers’ compensation claim petition on her behalf as well as a third-party premises liability action in the trial court against the owner of the property where Employer is located.  The claim petition was granted.  Subsequently, the WCJ approved a compromise and release agreement (C&R) between the parties that resolved Claimant’s medical and wage loss claims. The C&R recognized Employer’s full right to subrogation.  Employer declined to reduce its lien and in anticipation of the risks of a trial, Claimant and Attorney Pitt signed a new fee agreement increasing Attorney Pitt’s fee to 50% of any recovery in tort. The third-party action ultimately resolved.  Employer, suspicious that Attorney Pitt improperly diverted amounts from his attorneys’ fees to Claimant that should have been subject to Employer’s subrogation lien, filed review and modification petitions with the WCJ.  In association with these petitions, Employer issued a subpoena, approved by the WCJ, which asked Attorney Pitt to produce copies of all fee agreements between himself and Claimant, releases, distribution sheets, and copies of any checks issued by Attorney Pitt to Claimant.  Attorney Pitt refused to respond to the subpoena or participate in proceedings, writing in a letter to the WCJ that there was no subject matter jurisdiction for Employer’s petitions as Claimant’s workers’ compensation matter had been fully and finally resolved by the C&R.  Contempt proceedings were commenced in Common Pleas Court.  On January 15, 2021, the trial court issued its order finding Attorney Pitt in civil contempt for willful noncompliance with Employer’s subpoena, ordering disclosure of the requested information, and awarding Employer attorneys’ fees and costs associated with its litigation of the civil contempt petition.

Holding:

The Act does not limit the WCJ’s jurisdictional authority over subrogation matters to instances where there remain open and active workers’ compensation matters before the WCJ. Moreover, claimants and their counsel may not manipulate attorneys’ fees in a manner that would negatively affect the employer’s subrogation lien. The WCJ did not err in accepting jurisdiction over Employer’s petitions or in issuing Employer’s subpoena, the intent of which was to ensure that Claimant and Attorney Pitt had not manipulated attorneys’ fees to thwart Employer’s right to the fullest possible satisfaction of its lien, particularly in light of Attorney Pitt’s concession, on the record, that Claimant had received “some” money from the third-party settlement, and this amount was not reflected in Mr. Pitt’s distribution letter. Employer declined to compromise its lien prior to settlement of the third-party case, and it did not concede its right to receive the full amount of its lien. Further, Employer’s right to seek enforcement of the full extent of its lien by a WCJ was not extinguished when Employer resolved Claimant’s benefits via a C&R.   By extension, the trial court did not err or abuse its discretion in granting Employer’s petition for civil contempt against Attorney Pitt for his failure to comply with the subpoena.  The WCJ did not violate separation of powers principles and the trial court did not err or abuse its discretion in agreeing with the WCJ on this issue.  Further, the record does not support Attorney Pitt’s argument that the WCJ ordered Employer to commence subpoena enforcement proceedings in the trial court. The mere fact that the WCJ advised both parties of Employer’s right to pursue such proceedings, up to and including Employer’s petition for civil contempt against Attorney Pitt, does not mean that the WCJ thwarted or intervened in the Supreme Court’s role in governing the state courts and practicing attorneys.

Affirmed.

NOTICE OF A WOK INJURY

 Kelly Twaroski v. BASF Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 30, 2022

Issue:

Whether the WCJ misinterpreted and misapplied the discovery rule under the Act?

Background:

On February 13, 2020, Claimant filed a claim petition asserting that he suffered a work-related injury described as cervical myelopathy on July 14, 2019, when he ran into a pipe overhead and jerked his neck backwards.  Claimant continued working and the pain “pretty much went away and he felt fine.”  Claimant finished the work week but noticed his fingertips “felt tingly.” The plant then shut down for a week, and Claimant continued to feel intermittent tingling in his fingertips. When the plant reopened, Claimant stated he returned to work and noticed more intense tingling in his fingers. Claimant told his supervisor about the issue with his hands and that he could not come in to work because he could not perform his job. Claimant admitted that he did not report the July 14, 2019 incident to his supervisor at this time because he did not have continuing neck pain and did not think it was related to the issue he was experiencing with his hands.  The WCJ issued a decision and order dismissing Claimant’s claim petition due to Claimant’s failure to timely notify Employer of the existence of a work-related incident within 120 days of July 14, 2019. The Board affirmed the WCJ’s decision on appeal noting that the Claimant had a specific incident on the date of injury that caused him neck pain.  This incident triggered the 120-day notice requirement, with which Claimant failed to comply.

Holding:

The WCJ neither erred nor misapplied the discovery rule of Section 311 of the Act; rather, it simply did not apply in this case.  Under Section 311 of the Act, unless notice is given within 120 days after the occurrence of the injury, no compensation shall be allowed.   Section 311’s 120-day notice period includes the ‘discovery rule.’  In order to trigger the running of the 120-day period for notice, a claimant must have: (1) knowledge or constructive knowledge, (2) of a disability, (3) which exists, (4) which results from an occupational disease or injury, and (5) which has a possible relationship to the employment.  Substantial evidence of record, i.e., Claimant’s own testimony, supports the WCJ’s finding that Claimant failed to give timely notice of his alleged work-related injury. Specifically, Claimant credibly testified that he injured himself at work on July 14, 2019, and that he immediately experienced pain afterwards, but he “just basically shook it off,” continued working, and did not tell Employer.   Thus, Claimant knew in that moment that he had injured his neck and that the injury was related to his employment; he simply did not know the possible extent of that injury. While he told his Employer his hands were hurting following the plant shutdown and that he went out of work on August 18, 2019 and did not return due to him receiving carpal tunnel surgery, he never related this condition and surgery to any work injury or incident at work.  He did not submit a claim petition until February 13, 2020, which was outside of the 120-day period allowed by the Act.  The WCJ found that on July 14, 2019 Claimant knew, or should have known, that this injury was related, or possibly was related, to his employment.  The notice provisions of Section 311 are mandatory.

Affirmed.

JUDICIAL DISCRETION

Elbert L. Hatten, Jr. v. J.B. Hunt Transport Services, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 1, 2022

 Issue:

Whether the WCJ’ s findings were arbitrary and capricious?

Background:

Claimant operated a tractor trailer and delivered freight for Employer.  Claimant was injured when he fell from the step board of Employer’s truck and landed on his buttocks. Ultimately, Employer accepted injuries to Claimant’s lumbar and/or sacral vertebrae and commenced payment of weekly indemnity benefits.  Based on the results of an independent medical examination (IME), Employer filed a Termination Petition, alleging that Claimant had fully recovered from his injuries.  Prior to addressing Employer’s Termination Petition, the WCJ recognized that Claimant sought to expand the description of his work injury to include four additional injuries. The WCJ accepted Claimant’s expert’s diagnosis for two of the diagnoses but did not find credible evidence of the other two. Thus, the WCJ expanded the description of Claimant’s work injury but not to the extent sought by Claimant. Nevertheless, because the WCJ specifically found Claimant’s testimony of an ongoing work injury credible and persuasive, the WCJ denied the Termination Petition.

Holding:

It is well settled that the WCJ is the factfinder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence.  Where both parties present evidence, it is irrelevant that the record contains evidence which supports a finding contrary to that made by the WCJ; rather, the pertinent inquiry is whether evidence exists that supports the WCJ’s findings.  The Court may not reweigh the evidence or the WCJ’s credibility determinations.  The Court may overturn a credibility determination only if it is arbitrary and capricious, so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.  A party seeking to amend an NCP has the burden of proving that the NCP is materially incorrect. In this case, the WCJ set forth the evidence from both parties in neutral fashion, then issued several findings based on that evidence. The WCJ did not credit some of the expert’s diagnoses. This is the prerogative of the factfinder. Because there is substantial evidence of record supporting the WCJ’s findings, and because Employer is entitled to the benefit of all favorable inferences drawn from the evidence, the WCJ’s findings are neither arbitrary nor capricious, and may not be reweighed or disturbed.

Affirmed.

OBLIGATION FOR REASONABLE MEDICAL SERVICES

 Ralph Martin Constr. & Lackawanna American Ins. Co. V. Miguel Castaneda-Escobar (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 1, 2022

Issue:

Whether the Board erred in requiring Employer to pay for home modifications that were never done?

Background:

Claimant fell off a roof and injured his cervical spine, thereby rendering him a paraplegic. Employer accepted liability for the injury in a Notice of Compensation Payable.  In 2011, a design and construction firm estimated that it would cost $119,722.21 to modify the claimant’s residence, the Reading Home, to accommodate his work injury.  The design firm observed that it might be more cost effective for Claimant to relocate to a single-floor residence with wheelchair accessibility.  In 2013, Employer’s consultant stated that modifying the Reading Home would not be the best long-term solution for Claimant due to the fact that he does not own the home, the unknown duration of his stay in this home and the limited options for modifications.  In 2018, Claimant bought a home, the Leesport Home, for $230,000 for which he incurred closing costs of $4,158. This Leesport Home accommodated Claimant’s needs, however, the shower in the master bathroom had to be modified to provide wheelchair accessibility. Employer reimbursed Claimant for the $5,905.04 Claimant spent to modify this bathroom.  Claimant did not testify to explain his decision to purchase a home.  Employer filed a Medical Review Petition, asserting that Claimant’s purchase of the Leesport Home was not a reimbursable medical expense under Section 306(f.1)(1)(ii) of the Act.  Because the modification to the Reading house, where Claimant resided at the time of his injury, was projected to cost $119,722.21, the Board, reversed the WCJ and held that Employer was required to contribute that amount towards Claimant’s purchase of a one-story home that required few modifications.

Holding:

The term “orthopedic appliances” has been construed to cover the construction of home modifications, where necessary to allow the claimant to use the orthopedic appliances and prostheses. The particular circumstances of the claimant must be considered in determining the precise obligation of the employer.  At the time of injury, Claimant resided in the Reading Home, which required modifications projected to cost $119,722.21. Before any work was done, Claimant purchased the Leesport Home. Nonetheless, Claimant continues to seek “reimbursement” of the $119,722.21 that was never spent on the Reading Home.   Claimant’s wheelchair is clearly an orthopedic appliance, and precedent has established that home modifications to make the wheelchair useful to Claimant are Employer’s responsibility. However, there is no precedent under the Act that has established that an employer can be held liable to purchase an entire house for a claimant or to pay for modifications that were never undertaken.  Here, there is no record evidence to support a finding that Claimant needed to own his own home in order to facilitate the use of his wheelchair.   On the other hand, a structural renovation to Claimant’s new home was a necessity, and Employer promptly paid for the shower modification in Claimant’s bathroom. There is no evidence that Claimant has presented Employer with any additional invoices for renovations to the Leesport Home.  Claimant’s consultants determined that $119,722.21 was required to remodel the Reading Home to make it accessible for Claimant, but this amount did not become Claimant’s baseline entitlement, as suggested by the Board. Further, Claimant did not incur any costs to modify the Reading Home. Nor was the estimate of $119,722.21 adjudicated as reasonable. Notably, the Reading Home had unique challenges due to its age and construction that contributed to the estimated cost of $119,722.21.  Claimant purchased a home that was generally accessible to Claimant, with the exception of the bathroom. Employer paid for that modification, and this fulfilled Employer’s obligation under Section 306(f.1)(1)(ii) of the Act.  If Claimant had not been willing, or not been able, to move from the old home, some modification would have been required. The extent of that modification would have required a weighing of the remedial purposes of the Act against the need to avoid windfalls to Claimant. This analysis was never undertaken.  Further, there is no evidence that the purchase of a new house, as opposed to some other living arrangement, was essential to Claimant’s medical treatment.   Section 306(f.1)(1)(ii) of the Act did not authorize the Board to order Employer to pay Claimant $113,817.17 for home modifications never done or to contribute to the purchase of a new home. We affirm the Board’s holding that Employer was not liable for Claimant’s closing costs for the new home.

Affirmed in part and Reversed in part.

IMPAIRMENT RATING EVALUATION

 Halsted Communications, LTD v. WCAB (Miller)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issue:

Whether the Board erred in affirming the WCJ’s decision because Claimant failed to present medical evidence of ongoing total disability to support the grant of his Reinstatement Petition?

Background:

Claimant sustained work-related injuries while in the course and scope of his employment as a TV technician for Employer. In 2012, via a Notice of Change of Workers’ Compensation Disability Status (Notice of Change), Claimant’s WC benefits were modified to partial disability benefits based on an impairment rating evaluation (IRE) which found that Claimant had a 19% whole body impairment rating. This Notice of Change was not challenged.   In 2019, Claimant filed the Reinstatement Petition, alleging that his WC benefits should be reinstated as of the date of the IRE based on the PA Supreme Court’s decision Protz II, finding the former provision of the Act authorizing IREs was unconstitutional.  The WCJ granted Claimant’s Reinstatement Petition, as of the date of the filing of the Reinstatement Petition.  The Appeal Board affirmed.

Holding:

The WCJ accepted Claimant’s testimony that he continues to be disabled from his work-related back and foot injuries. He also noted that employer’s expert agreed that Claimant continues to have an impairment from his back condition. Employer accepted, pursuant to an NCP, that Claimant suffered compensable work-related injuries to his left foot, low back, and ribs fracture.  Claimant clearly testified that these accepted injuries prevented him from performing the duties of his pre-injury position with Employer. Employer’s medical expert was found to be credible to the extent that it corroborated Claimant’s testimony that his recognized work-related injuries continue. As a result, the WCJ did not err in granting Claimant’s Reinstatement Petition and directing that he receives total disability benefits effective as of the date that he filed the Reinstatement Petition.  The Court further held that the Employer is not entitled to a credit under Section 306(a.3) for payments made under an unconstitutional IRE that was conducted six years prior to its enactment, and the Board did not err in affirming the WCJ’s decision in this regard. Rather, Employer may vindicate its right to a credit in a subsequent, new IRE proceeding under Section 306(a.3) of the Act.

Affirmed.

James Gilbert v. Albert Einstein Medical Center (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issues:

Whether Protz II must be given full retroactive effect, rendering all IREs performed pursuant to Section 306(a.2) of the Act, and all the legal effects therefrom, void ab initio?

Background:

Claimant suffered an injury in the course and scope of his employment.  Employer issued a Notice of Compensation Payable that described Claimant’s work injury as a right cervical strain for which Employer paid Claimant TTD benefits.   In 2006 an IRE determined that Claimant had reached maximum medical improvement from his work injury and had a corresponding 35% whole-body impairment rating. In a 2007 Supplemental Agreement, Employer and Claimant agreed that Claimant’s work injury benefit status changed from TTD to temporary partial disability (TPD) based upon the 2006 IRE.   In 2017, Claimant filed the Modification Petition alleging that Claimant’s WC benefit status should be modified from TPD to TTD as of the effective date of the change in Claimant’s WC benefit status as set forth in the Supplemental Agreement.  Claimant also filed a Reinstatement Petition alleging that Claimant’s TTD benefit status should be reinstated as of January 12, 2016, the day after Claimant’s 500 weeks of TPD benefits ended.   The WCJ granted Claimant’s Reinstatement Petition effective November 10, 2017, the date Claimant filed his Reinstatement Petition, and denied Claimant’s Modification Petition.  The Board affirmed.

Holding:

Neither the WCJ nor the Board erred as a matter of law by relying on the holdings in Whitfield and Dana Holding Corp., and reinstating Claimant’s WC benefits to TTD status as of the date that he filed his Reinstatement Petition, rather than reinstating him to TTD status as of June 15, 2006, the effective date of the unconstitutional IRE.  Claimant filed his Reinstatement Petition well over the three years afforded by Section 413(a) of the Act. Because Claimant had not sought reinstatement of his TTD status within the three years provided by Section 413(a) of the Act, and because his challenge was not preserved in active litigation at the time Protz II was decided, Claimant is not entitled to relief.

Affirmed.

Tyvia Robinson v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issues:

Whether Act 111 is unconstitutional when retroactively applied to work injuries sustained before its enactment?

Background:

Claimant sustained a work-related injury in the nature of a right thumb contusion when a door closed on her thumb in the course of her employment with Employer. The injury was recognized by Employer via a Notice of Compensation Payable.  On February 7, 2020, Claimant underwent an IRE performed by Lynn W. Yang, D.O., using the American Medical Association Guides (AMA Guides). Dr. Yang opined Claimant had reached maximum medical improvement (MMI) and concluded Claimant’s Whole-Body Impairment (WBI) was 15%. Claimant had received at least 104 weeks of temporary total disability benefits. Employer filed the modification petition seeking to have Claimant’s benefits changed from temporary total disability to partial disability benefits.  The WCJ granted Employer’s modification petition.

Holding:

Where the claimant sustained an injury prior to Act 111’s enactment, the retroactive application of Act 111 does not deprive the claimant of his vested right to workers’ compensation benefits. Moreover, the Claimant’s vested rights were not affected by Act 111 because “there are reasonable expectations under the Act that benefits may change.”  Claimant’s IRE occurred after Act 111 was enacted, and thus, it did not constitute a retroactive application of the law. Moreover, Act 111 did not automatically change Claimant’s disability status or deprive her of vested rights, but instead, provided Employer with a way to pursue a change in Claimant’s disability status by requiring medical evidence that Claimant’s WBI was less than 35%.

Affirmed.

Kirk Wescoe v. Fedchem, LLC and SWIF (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issue:

Whether Act 111 is unconstitutional when retroactively applied to work injuries sustained before its enactment?

Background:

In 2011, Claimant sustained a work-related injury to his lower back.  Employer acknowledged the injury as a lower back strain in a notice of compensation payable, which was later amended to include an L4-5 disc herniation with radiculopathy. In 2019, Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 13% based upon an IRE examination, performed under the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) (second printing April 2009).  The WCJ concluded that Employer established that Claimant had a whole-body impairment of 13% and, therefore, granted Employer’s petition, modifying Claimant’s benefits to partial disability status effective the date of the IRE examination.

Holding:

This Court addressed the retroactive application of Act 111 on numerous occasions, holding that a vested right is one that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person’s consent.  There are reasonable expectations under the Act that benefits may change.  Thus, Act 111 did not deprive claimants of a vested right but simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole-body impairment of less than 35%, after receiving 104 weeks of [total temporary disability] benefits.  Further, the General Assembly specified using clear language that employers/insurers were entitled to credit for the weeks of disability compensation paid to an injured employee prior to the passage of Act 111. The Board’s application of Act 111 in modifying Claimant’s benefits to partial disability status did not violate the Remedies Clause found in article I, section 11 of the Pennsylvania Constitution because Claimant does not have a vested right to workers’ compensation benefits. Thus, we affirm the Board’s adjudication.

Affirmed.

Robert Yeager v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 4, 2022

Issue:

Whether claimant’s temporary total disability benefits should be reinstated as of the date that the pre-Protz II IRE was performed, rather than as of the date that he filed his reinstatement petition?

Background:

Claimant sustained a work injury to his right knee. Employer accepted the injury as a “right knee sprain.” In 2013, Claimant underwent an Impairment Rating Evaluation (IRE) that found that Claimant had a 1% impairment. The parties stipulated to the modification of Claimant’s benefits to partial disability as of the date of the IRE.  On September 14, 2017, Claimant filed a reinstatement petition based on the PA Supreme Court’s decision in Protz (Protz II).  The WCJ found as fact that Claimant has never fully recovered from his work injury and he has never been physically able to return to his pre-injury job as an asphalt spreader. Therefore, the WCJ granted Claimant’s reinstatement petition, as of the filing date of the reinstatement petition.

Holding:

Claimant argued he has a vested property right to total disability benefits from 2013, when the IRE was rendered unconstitutional by Protz II and that the Remedies Clause in article I, section 11 of the Pennsylvania Constitution precludes retroactive legislation that altered his vested right to total disability benefits under the Act.  The Court addressed the retroactive application of Protz II in Whitfield, where it held that the claimant, whose disability status was rendered invalid by Protz II, and who filed a reinstatement petition within three years of her last compensation payment, was entitled to reinstatement as of the date that she filed her reinstatement petition.   A reinstatement of the claimant’s benefits was governed by Section 413(a) of the Act, requiring proof that the claimant’s disability continued.  A claimant need not produce medical testimony to satisfy his burden of proof as his own credited testimony will suffice. The Court has repeatedly affirmed that a claimant’s reinstatement of total disability benefits is effective as of the date that the reinstatement petition was filed, and not as of the date of the now-unconstitutional IRE under Protz I or Protz II.  Here, Claimant satisfied his burden for reinstatement, based on his own testimony that he was totally disabled, as credited by the WCJ. Claimant’s reinstatement was properly granted as of the date that Claimant filed for reinstatement in 2017.

Affirmed.

PENALTY PETITION

 Frank Hughes v. Wawa, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Disposition

Decided August 8, 2022

Issues:

Whether the WCJ’s denial of the penalty petition was the result of capricious disregard of undisputed evidence of a violation of the Act?

Background:

Claimant sustained a work-related injury while working as a truck driver for Employer. In 2011, the parties entered into a Compromise and Release (C&R) Agreement approved by the WCJ resolving wage loss benefits. The medical portion of Claimant’s claim remained open.  In 2018, Employer filed two Utilization Review (UR) requests to determine whether certain prescriptions were reasonable and necessary. The WCJ found that Employer had met its burden of proof and that a reduction of the prescriptions was necessary as to the providers.  Claimant filed a penalty petition, alleging that Employer failed to pay for necessary medical treatment in violation of the Act.  The WCJ denied and dismissed Claimant’s penalty petition. The WCJ found that Claimant had not met his burden of proving a violation of the Act.  The Board affirmed the WCJ’s decision in its entirety.

Holding:

The WCJ did not capriciously disregard any evidence. The standard of capricious disregard requires an examination of whether the WCJ willfully and deliberately disregarded competent testimony and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result.  Claimant had the burden of establishing a violation. A conclusory Affidavit from provider attesting that the bills were “properly submitted,” was not determinative of whether Employer violated the Act. There was no evidence that provider’s bills were properly submitted with the required medical reports in accordance with the Act. To the contrary, the record demonstrated that there were no supporting medical notes, or diagnosis, or description of treatment or any other explanation of the dosages that would enable Employer/insurer to assess the reasonableness or necessity of the treatment.   Moreover, providers that treat injured employees are required to submit the required medical reports within 10 days of commencing treatment and at least once a month thereafter as long as treatment continues. The only documents provided to Employer were the Health Insurance Claim Forms, which contained a mere summary of the dates and dosages and which are all dated after the penalty petition was filed.  Employer had no factual basis upon which to confirm or deny causation or the reasonableness and necessity of the underlying treatment represented by these bills or to decide whether it had a valid basis upon which to seek a UR.  Employer was not required to pay for this treatment.

Affirmed.

UTILIZATION REVIEW

 Hulda Gillot v. Visiting Nurse Assoc. of Greater Phila. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 30, 2022

 Issues:

1. Whether the Employer’s UR requests were untimely because they were filed nearly two years after liability was established via a medical-only NTCP; and 2. Whether the Employer did not meet its burden of proving claimant’s palliative medical treatment was unreasonable and unnecessary?

Background:

In 2016, Claimant sustained an injury while working for Employer. Claimant filed a claim petition alleging that she sustained multiple injuries at work, resulting in disability. The next day, Employer issued a medical-only notice of temporary compensation payable (NTCP) acknowledging that a work injury occurred but disputing that it caused disability.   A WCJ granted Claimant’s claim petition, adding to the originally accepted injuries.  Within 30 days of the decision, the Employer filed UR requests to determine if Claimant’s treatments from five providers were reasonable and necessary.  The UR determinations where not entirely in the providers’ favors. Claimant filed a petition for review of the UR determinations.  Following review, the WCJ found Claimant’s testimony not credible regarding the reasonableness and necessity of her treatment.   The Appeal Board affirmed.

Holding:

Claimant’s contention that the UR requests Employer filed after the decision granting the claim petition in 2018, were timely for challenging the treatment from 2016 forward had no merit.  There was no proof that the Employer was required to file for UR prior to the granting of the claim petition.  Importantly, the record did not establish the nature of the injury that was accepted in the 2016 medical only NTCP, because the document was never submitted.  Based on the fact that Claimant filed a claim petition, it is not clear if she professed to have suffered from injuries not encompassed in the NTCP. Undoubtedly, Employer was contesting liability for at least some of Claimant’s injuries or she would not have needed to file a claim petition.  Claimant’s argument that Employer’s UR requests were untimely because it was obligated to challenge her medical treatments because they were accepted by the 2016 medical only NTCP is not based on any evidence of record. As such, Claimant’s first contention of error is meritless.  As to the second issue, while treatment may be reasonable and necessary even if it is designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition, there is no requirement that the employer raise the issue of palliative care. When evidence is presented that the treatment is palliative in nature, the employer merely bears the burden of refuting it.  Before the WCJ, Claimant testified that some of her treatments were palliative in nature. However, the WCJ found her testimony not credible.  The WCJ also found there was no evidence that the treatments helped Claimant’s work-related conditions or symptoms.   The WCJ noted that when Claimant missed a treatment, there did not appear to be a worsening in her condition.  Provider also indicated that some of his treatments were used to decrease Claimant’s pain, however, the WCJ rejected these opinions as not credible. Lack of progress in pain improvement is a factor that the WCJ may consider in making the factual determination of whether palliative care is reasonable and necessary.   Thus, the WCJ was free to determine that the palliative treatments for Claimant’s pain did not effectively improve her symptoms.

Affirmed.

SUSPENSION PETITION

Hi-Tech Flooring, Inc. v. WCAB (Santucci)

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 9, 2022

Issue:

Whether the Employer had shown by a totality of the circumstances that Claimant had chosen not to return to the workforce?

Background:

Claimant, a tile setter, has been a Union member since 1985. In 2014, Claimant sustained a work-related injury in the form of a right knee contusion.  Thereafter, Employer issued a Notice of Temporary Compensation Payable accepting the work injury.  In 2018 Employer filed a Suspension Petition, alleging that Claimant had voluntarily left the workforce by accepting a pension from the Union in 2017, and receiving SSD benefits for physical injuries or conditions beyond the work-related right knee injury. The WCJ agreed with the Employer and granted the suspension.  The Board determined that the WCJ erred in finding that Employer had shown, by a totality of the circumstances, that Claimant had chosen not to return to the workforce. Accordingly, the Board reversed the WCJ’s grant of Employer’s Suspension Petition.

 Holding:

An employer bears the burden of showing that a claimant has retired.  The PA Supreme Court has rejected attempts to create a rebuttable presumption that a claimant has voluntarily retired from the entire workforce merely from the fact that a claimant has accepted some type of pension benefit.   Claimant received the SSD benefits based, in part, on his work-related injury and lack of transferrable skills, which prevented Claimant from working. Therefore, Claimant’s receipt of SSD benefits in this matter suggests that Claimant’s work injury forced him out of the labor market.  As to the Union disability pension, Claimant’s Union disability pension relates to the very position that the WCJ already found Claimant could not, and cannot, perform due to the work injury. That Claimant might have some other conditions that also affect his ability to perform that work does not eliminate the fact that Claimant’s unresolved work-related injury prevents him from doing so. Thus, Claimant’s receipt of a disability pension that is based on his total and permanent disability from his trade, a trade from which he is already disabled due to the work-related injury, does not speak to Claimant’s voluntary removal from the entire workforce.  Claimant’s receipt of a disability pension shows that he could not perform the time-of-injury position; it does not necessarily follow that Claimant decided to forgo all employment.  Moreover, the WCJ specifically found Claimant has not fully recovered from the work-related injury and is unable to return to his pre-injury position.   Claimant here accepted a disability pension from the Union and SSD benefits, as opposed to age-based retirement benefits. Given this difference in the type of pension and SSD benefits in the present case, and in light of the above circumstances, precedent does not require a finding of removal from the workforce.  Further, the totality of the circumstances shows Claimant did not look for other work because he did not know what other kind of work to look for.  This does not evidence an intent to retire from the workforce but, rather, a lack of understanding what options may be available to Claimant to remain in the workforce.   The totality of the circumstances in this case, including all relevant and credible evidence, do not support Employer’s assertion that Claimant voluntarily retired and left the workforce.

Affirmed.

COMPROMISE AND RELEASE AGREEMENTS

James Hymms v. Commonwealth of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 11, 2022

Issue:

Whether, at the time of the entry into the C&R, there was either a mutual mistake, or a unilateral mistake that converted into a mutual mistake, regarding the calculation of the lump sum payment contained in the C & R Agreement?

Background:

Claimant, who was represented by counsel entered into a C&R Agreement with the employer.  The C&R Agreement stated that Claimant suffered a binaural hearing loss, and that the Agreement will resolve all claims for specific loss/hearing loss benefits for a lump sum payment of $34,000, minus counsel fees of $6,800, for a net total payment of $27,200.   A telephonic hearing was held before the WCJ regarding approval of the C&R Agreement. Claimant testified that he read and signed the C&R Agreement, with consultation from Counsel. The WCJ had Claimant look at the C & R Agreement and asked if he understood that he was settling all of his rights to hearing loss benefits for a lump sum reflected therein, minus the amount to be paid to Counsel. Claimant was also asked if he understood that Employer would remain responsible for medical treatment for his hearing loss for one year, after which it would become Claimant’s responsibility. Claimant again responded “yes.” The WCJ then informed Claimant that once she approved the C&R Agreement, Claimant would not be able to come back to Workers’ Compensation for any money relating to this injury except for what was agreed to with the medical bills, even “if at some time in the future you believe you settled for too little money, it is still over when I approve it.” Claimant acknowledged this and affirmed that he still wanted to settle his case. The WCJ found that Claimant understood the full legal significance of the C&R Agreement and understood the effect it would have on future payments of compensation and medical expenses and approved it.

Holding:

Under the WC Act, settlement agreements are not valid or binding until approved by a WCJ. Further, the WCJ shall not approve any C&R agreement unless he first determines that the claimant understands the full legal significance of the agreement.  Evidence demonstrating a mutual mistake must be clear, precise, and indubitable.  However, if a party to a contract knows or has reason to know of a unilateral mistake by the other party and the mistake, as well as the actual intent of the parties, is clearly shown, relief will be granted to the same extent as if a mutual mistake existed.  There was no evidence of record supporting Claimant’s claim of mutual mistake. The C&R Agreement does not mention Claimant’s specialist or a formula, and Claimant’s specialist’s findings were not submitted into evidence before the WCJ. Moreover, at the hearing before the WCJ, Claimant testified that he understood he was agreeing to settle all of his rights to hearing loss benefits for a total lump sum payment of $34,000, minus attorney’s fees, and neither he nor his Counsel suggested that the payment was based on a formula. As such, the record and the C&R Agreement are devoid of any proof of a mutual mistake. Claimant did not meet his burden of proving Employer was also mistaken as to a present, material fact that existed at the time the C&R Agreement was executed.

Affirmed.

SPECIFIC LOSS

Joseph J. Trovato, Jr. v. Citizens Financial Group (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 29, 2022

 Issue:

Whether the Board erred in reversing the WCJ’s Decision as the WCJ’s specific loss determination is supported by substantial evidence?

Background:

Claimant filed a Claim Petition in which he alleged that he sustained a work-related injury in the nature of a retinal detachment of the left eye during the course and scope of his employment with Employer as a Senior Project Manager/Vice President.  Claimant sought specific loss benefits for his left eye.  Claimant’s vision quickly deteriorated, such that, within very little time, he lost almost 75% of his vision.  Claimant sought medical treatment and underwent surgery within days of the incident. Claimant denied ever experiencing sparks or bright lights in his left eye before the incident. Claimant acknowledged prior cataract surgeries for both eyes; the left eye surgery was in 2013.  About a month after surgery, Claimant again noticed rapid deterioration of his vison. He underwent a second surgery.  Following the second surgery, Claimant testified that there was not much change in the vision of his left eye. Without glasses, Claimant testified that his left eye vision is wavy and distorted.   The WCJ found the testimony of Claimant to be credible but noted that Claimant’s credibility is not at issue because this case involves the issue of medical causation. The WCJ accepted the opinions of Claimant’s medical expert over Employer’s expert.   The WCJ found that Claimant sustained a loss of use for all practical intents and purposes of his left eye and that the loss was causally related to the incident that occurred at work.  The Board reversed the award of specific loss of sight benefits upon concluding that Claimant’s medical evidence was insufficient to meet the legal standard but affirmed in all other respects.

Holding:

The Board did not reweigh the evidence or render new credibility findings in reversing the award of specific loss benefits. The Board simply reviewed Claimant’s expert’s credible testimony in its entirety and determined it did not constitute substantial evidence as a matter of law to support a conclusion that Claimant had lost his left eye for all intents and purposes.  When a claimant alleges specific loss and seeks benefits pursuant to Section 306(c) of the Workers’ Compensation Act (Act), he bears the burden of proving that he suffered a permanent loss of use of his injured body part.   Where an eye has been injured but not destroyed, the test to determine whether compensation should be awarded is whether the eye was lost for all intents and purposes. Loss for all intents and purposes will be found where the injured eye does not contribute materially to the claimant’s vision in conjunction with the use of the uninjured eye.  This “material contribution test” requires the factfinder to determine if the claimant’s vision is materially improved when using both eyes rather than the good eye alone, not just whether the claimant in fact has vision in the injured eye.   Compensation may not be had if, using both eyes, the claimant can see better, in general, than by using the uninjured eye alone.  Claimant’s expert offered no opinion as to whether the injured eye materially contributes to Claimant’s vision in conjunction with the uninjured eye and offered no opinion on whether Claimant’s vision is better when using both eyes than when using the uninjured eye alone.

Affirmed.

STATUTORY EMPLOYMENT

Ronald And Jill Oster, h/w v. Serfass Construction Company, Inc., et al.

Superior Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 17, 2022

Issue:

Whether the trial court erred as a matter of law in granting Serfass’ Motion for Summary Judgment based upon the statutory employer doctrine where genuine issues of material fact exist as to whether Serfass could establish the defense of a statutory employer at trial?

Background:

Ronald and Jill Oster (Appellants) appeal from two orders which respectively granted summary judgment in favor of Appellees in Appellants’ personal injury action.   In 2016, Serfass and Tower entered a contract whereby Serfass provided general contracting for demolition of a building (the “Tower Building”) and construction of a new building in Allentown (generally, the “Tower Project”). Serfass employed several subcontractors during the project, including Duggan & Marcon, Inc. (“Duggan”) for whom Mr. Oster worked.  In Fall 2016, two pairs of Serfass employees began chipping adhered brick off the neighboring Trifecta Building.  In mid-November 2016, an excavator struck the Trifecta Building. As a result, on November 17, 2016, Serfass commissioned an engineer to inspect demolition activity along the west wall of the Tower Building and the interior and exterior faces of the east wall of the abutting Trifecta Building. The engineer concluded that there was no discernable effect on the adjoining Trifecta Building structure.  On November 26, 2016, Mr. Oster and another Duggan employee took the place of one of the pairs of Serfass employees, picking up where they had left off chipping leftover Tower brick from the Trifecta Building. At some point that day, the chimney of the Trifecta Building unexpectedly collapsed while the Duggan and Serfass employees worked. As a result, multiple bricks fell and struck Mr. Oster in the head, neck, and shoulders, causing injury.  Appellants filed negligence actions against Serfass and Tower.  The trial court granted summary judgment to all defendants.

Holding:

Pursuant to Section 302(b) of the Workers’ Compensation Act, general contractors bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors. In this sense, general contractors have been denominated ‘statutory-employers’ relative to workers’ compensation liability.  Statutory employers under Section 302(b) enjoy a measure of immunity from liability in tort pertaining to work-related injuries for which they bear secondary liability under the Act.   Pennsylvania courts have long applied the following five-factor test to determine if a general contractor was the statutory employer of an injured employee of a subcontractor:  (1) The general contractor was under contract with an owner or one in the position of the owner; (2) The general contractor controlled or occupied the premises where the injury occurred; (3) The general contractor entered a subcontract; (4) The general contractor designated part of its regular business to the subcontractor; and (5) The injured party was an employee of such subcontractor.   In support of the statutory employer determination, the trial court noted the record showed that (1) Serfass was the general contractor on the Tower Project; (2) Serfass directed Mr. Oster’s conduct on the Tower Project site and was responsible for worker safety; (3) Mr. Oster was working on the Tower Project pursuant to a subcontract between Duggan and Serfass; (4) demolition work was part of Serfass’ regular business; and (5) Duggan employed Mr. Oster at the time of his injury.  Additionally, Serfass controlled access to the Tower Project site via a locked gate, Duggan’s employees did not have the access code for the gate, a Serfass employee instructed Mr. Oster on what work to do and where to do it on the worksite, and Mr. Oster took over work that had been started by Serfass employees before his arrival.  Serfass had a contract between it and Tower establishing the parties’ relationship, including “demolition and masonry” as part of Serfass’ job duties.  These uncontested facts provide additional support to the trial court’s finding that no question of fact existed regarding Serfass’ status as Mr. Oster’s statutory employer.

Affirmed.

Concurring/Dissenting Opinion

There was a concurring/dissenting opinion which expressed, in relevant part, disagreement with the manner in which the statutory employer doctrine has been wielded by negligent general contractors to shield themselves from civil liability when they have not taken any steps to ensure the employees of their subcontractors will be adequately compensated (or even insured) for on-the-job injuries they sustain as a result of that negligence.  The opinion acknowledged that the court was bound by existing, controlling statutory and case law to the contrary.  The opinion referred to the five-factor test, as “an irrational relic of a bygone era.”  This opinion advocated for a change in the workers’ compensation law, and the test should require a sixth element — proof that the general contractor either paid the injured worker’s benefits, or prior to the injury, obtained a policy which would have covered the injured employee.

MUNICIPAL LAW – ACT 101 BENEFITS

Megan Diaz on Behalf of the Est. of Raymond Diaz, (Deceased) v. Dept. of General Services

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 16, 2022

Issue:

Whether the Department erred in holding that the connection between Decedent’s work injury and his death was too attenuated to support a claim for Act 101 benefits?

Background:

In 1996, Decedent began working as a police officer for the City of Philadelphia. In 2014 he was injured in a motor vehicle accident in the course of his employment, sustaining a concussion and injuries to his neck and back. Decedent did not return to work after the vehicle accident, and prior to his death was collecting Heart and Lung Act benefits.   In 2016 Decedent fell in his home and injured his left arm.  Decedent underwent surgery to repair the arm and was discharged with a prescription for hydromorphone to treat his post-surgical pain.  Two days later the Decedent was found unresponsive and died at the hospital. The City’s medical examiner reported that the cause of death was Decedent’s intoxication by the combined effects of hydromorphone, oxycodone, and fentanyl therapy for chronic and postsurgical pain.   In 2017, the City of Philadelphia, on behalf of Claimant, applied to the Department for Act 101 death benefits. On April 10, 2019, Eric Decker, Assistant Bureau Director of the Department’s Bureau of Finance and Risk Management, denied the application.

Holding:

Act 101 provides a death benefit to survivors of certain public servants engaged in hazardous occupations. The Act provides two forms of benefits: (1) a one-time cash payment of $100,000, adjusted for inflation, to a spouse or survivors, and (2) lifetime monthly payments to the spouse or survivors in an amount equal to the monthly salary of the deceased.  Act 101 requires a “causal relation between death and performance of duties,” and it is to be construed liberally in favor of its intended beneficiaries.   Claimant’s testimony and documentary evidence established a causal connection between Decedent’s work injury and his death. But for the work injury, Decedent would not have been prescribed pain medication or experienced ongoing balance problems that led to his fall in 2016. But for that fall, he would not have needed surgery or been prescribed hydromorphone. Regardless of whether the fall resulted from his post-concussive syndrome, it is undisputed that but for Decedent’s work injury, oxycodone and fentanyl would not have been present in his bloodstream when he took the hydromorphone, and their fatal combination with hydromorphone would not have occurred. Thus, Decedent’s death was a direct result of the injuries he sustained in the performance of his official duties.   Foreseeability and superseding cause are irrelevant to Act 101 benefits.  Under Act 101, the only relevant inquiry is whether death comes as a result of the performance of the decedent officer’s duties.  But for Decedent’s work injury, the fatal combination of drugs prescribed for his work injury with the hydromorphone would not have occurred.   The medical examiner’s report and death certificate both established that it was the combination of medications that caused his death, not hydromorphone alone. There is no evidence to substantiate the Department’s suggestion that the ongoing use of oxycodone and fentanyl were not related to Decedent’s death.   Claimant established a causal connection between Decedent’s injury sustained in the performance of his duties and his death. Therefore, the Department erred in denying her claim for death benefits under Act 101.  Claimant is entitled to benefits under Act 101.

Reversed.

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

8/1/2022-8/31/2022

CAUSATION

Jones v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-3571-19; 2022 WL 3221966

Decided: 8/10/2022

Background:

Jones worked as a recycling operator for Ocean County. In 2010, Jones was connecting an industrial tub grinder to a truck when he slipped and fell, piercing the palm of his right hand on a bungee cord hook. An MRI reflected no evidence of a tendon tear, but performed exploratory surgery a week after the fall, which reported all the nerves and tendons were intact. A month after the fall when he was exercising at home, Jones reported feeling a tearing in his palm after which he was unable to bend his fingers. Jones resigned from his job and began treating with his own doctors. The Board denied his application for accidental disability retirement benefits because he was not permanently and totally disabled, and there was no evidence that the fall and puncture wound were the direct cause of his symptoms. Jones appealed, and the matter was transferred to the Office of Administrative Law for a hearing.

Medical records indicated that Jones did not report pain in his neck or right shoulder until about a month after the accident. Jones testified he sustained injuries in the accident that were never looked at that have gotten worse over time, and he was in constant pain despite taking no pain medication and receiving no treatment. Jones did not present the testimony of a treating doctor. Instead, each side presented testimony of experts who examined Jones for the purpose of this action.

The Administrative Law Judge (ALJ) found Jones’s expert to be more credible and found the Board’s expert “gave no weight to Jones’s symptoms, the MRI and x-rays, and other medical reports.” The ALJ found that Jones’s disability was total, permanent, and a direct result of the July 2010 accident. The Board rejected the decision of the ALJ and specifically: her findings as to the credibility of the experts who testified; the ALJ’s findings that the Board’s expert gave no weight to Jones’s symptoms, the MRIs and x-rays, and other medical reports; and the ALJ’s summary of the testimony. The Board argued that when the ALJ rejected its experts’ testimony, she found a medically impossible symptomology credible. The Board concluded that Jones failed to produce competent medical testimony that his claimed disability is the direct result of a traumatic event. Jones appealed.

Holding:

The court found that they are satisfied that the Board appropriately rejected the ALJ’s decision finding Jones had established that he was permanently and totally disabled as a direct result of the work injury to his right hand. The court held that while the N.J.S.A. 52:14B-10(c) provides that an agency head may not reject an ALJ’s fact findings as to issues of credibility of lay witness testimony without first determining the findings are arbitrary or capricious, or not supported by sufficient, competent, and credible evidence in the record, that constraint does not extend to the testimony of experts.

The court was satisfied that the Board’s criticisms of the ALJ’s findings of fact are fair, as the ALJ’s summary of the experts’ testimony does not capture the facts underlying the opinion of each expert. The court also found that the ALJ erroneously stated that Jones’s expert concluded his disability was a direct result of the 2010 injury, even though the expert never stated that opinion at the hearing. Because Jones did not establish that his alleged disability was a direct result of the work injury, the court held that the Board was correct to deny Jones accidental disability retirement benefits.

Affirmed.

SUMMARY JUDGMENT

Alleyne v. New Jersey Transit Corporation

Superior Court of New Jersey, Appellate Division

No. A-0753-20; 2022 WL 3348400

Decided: 08/15/2022

Background:

Plaintiff, Anthony Alleyne, appeals from an October 8, 2020 order granting NJ Transit summary judgment and dismissing the plaintiff’s second amended class action complaint. The complaint alleged that NJ Transit’s sleep apnea policy was discriminatorily applied to plaintiff, violating the Law Against Discrimination (LAD) of the Workers’ Compensation Act.

NJ Transit implemented an “Obstructive Sleep Apnea (OSA) Policy – Rail Operations” (Policy) effective April 20, 2017, after a train engineer who suffered from undiagnosed sleep apnea fell asleep at the controls, causing a crash that left one person dead and over 100 injured. NJ Transit therefore requires screening for OSA during routine physical exams mandated by defendant. Employees would be paid for lost wages for scheduled work if they were taken out because they were medically not approved based solely on OSA screening criteria. Plaintiff was a member of the Brotherhood of Locomotive Engineers and Trainmen (BLET), which also required physical examinations and would pay lost wages if the engineer was medically fit to serve at the time he was held out of service.

One of the criteria that makes someone high-risk for sleep apnea is a BMI of 35 or more. NJ Transit considers sleep apnea a medical condition, therefore an employee removed from service for sleep apnea is not reimbursed for costs associated with testing or medical consultations. During plaintiff’s routine physical in October 2016, his BMI was determined to be greater than 35, and he was removed from service pending a sleep study. Plaintiff picked Trinitas Hospital for his sleep study because he felt it would be the quickest. Plaintiff was diagnosed with OSA after the sleep study, completed treatment, and was cleared to return to service on November 9, 2016. He was not reimbursed for costs associated with treatment and testing.

Plaintiff raises 4 challenges on appeal. “Plaintiff argues that the judge erroneously:

1. Determined sleep apnea is not a disability by incorrectly applying the ADA standard, and finding that NJ Transit did not perceive plaintiff had a disability;
2. Applied the burden-shifting framework established in McDonnell Douglas Corp. v. Green, and incorrectly concluded plaintiff failed to establish the policy was discriminatory;
3. Found NJ Transit’s sleep apnea reimbursement policy is ‘inextricably intertwined’ with the CBA and, as such, preempted by the Labor Management Relations Act, notwithstanding defendant’s concession otherwise; and
4. Concluded plaintiff was not required to treat with a specific sleep apnea doctor, barring recovery of reimbursed medical expenses under N.J.S.A. 34:11-24.1.”

Holding:

The court held that the LAD does prohibit discrimination based on an employee’s disability or perceived disability. However, the LAD does not “prohibit the establishment and maintenance of bona fide occupational qualifications” or “prevent the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment.” To establish employment discrimination under the LAD, NJ courts use the burden-shifting analysis in McDonnell Douglas, under which plaintiff must establish a prima facie case of discrimination.

The court agreed that the motion judge applied the wrong standard when ruling plaintiff’s sleep apnea was not a disability under the ADA, as plaintiff did not assert an ADA claim. Plaintiff argued that his BMI was the only reason he was removed from service, and he presented no expert evidence on causation. Plaintiff did not claim that NJ Transit failed to accommodate his sleep apnea, as there is no accommodation that would have permitted plaintiff to safely perform his job.

The court held that summary judgment was properly granted to NJ Transit because even if sleep apnea was a disability under the LAD, plaintiff was removed from service based on a medical condition that posed a serious threat to the health and safety of plaintiff and others, and not because of his physical impairment or perceived impairment. The court held that they do not have to use the McDonnell Douglas framework because plaintiff did not establish a prima facie case of discrimination. The court also was not persuaded by plaintiff that NJ Transit was required to pay for his sleep apnea examination.

Affirmed.

STANDARD OF EVIDENCE

Mack v. Board of Trustees, Teachers’ Pension and Annuity Fund

Superior Court of New Jersey, Appellate Division

No. A-2780-20; 2022 WL 3641728

Decided: 8/24/2022

Background:

Jennifer Mack is a former teacher and school administrator. In August 2014, she began working as an elementary school principal at Delanco. In March 2015, she was informed by the school superintendent that she was not a good fit, and her contract would probably not be renewed. Mack heard rumors that the real reason she was not renewed was her sexual orientation, which was confirmed by a Board member. She began experiencing panic attacks, lethargy, anxiety, and depression, and sought treatment.

In July 2015, after completing her contract with Delanco, she took a job as the student services director for Delran, where she worked until October 2015. Mack testified she left this job because she suffered from depression and could not keep up. Her resignation letter did not mention her illness, and instead stated that the position was not a good fit. Nine days after submitting her resignation letter, she advised that she was taking a medical leave of absence for the remainder of her notice period. Mack began working a six-month part-time position as a site supervisor at the Burlington County Juvenile Detention Facility in January 2016. She was hospitalized in June 2016 and never returned to work.

Mack applied for TPAF ordinary disability retirement benefits in July 2017, and in June 2018, the Board denied her application, finding that she was not totally and permanently disabled at the time she left employment with Delran in October 2015. Mack appealed and a hearing took place in front of an Administrative Law Judge (ALJ). Both parties presented expert witnesses who examined Mack for purposes of litigation. Mack called a Dr. Gollin, who diagnosed her with bipolar II disorder and stated he could not give an exact date as to her disability. The Board called a Dr. LoPreto, who diagnosed her with several mental health diagnoses, but stated that her disability “came crashing down in June 2016” when she had to be hospitalized.

The ALJ concluded that Mack proved she was disabled by October 2015 and she was entitled to ordinary disability retirement benefits. The Board rejected this determination and the ALJ’s credibility findings with regard to the experts. The Board also rejected the ALJ finding that Mack’s employment at the juvenile detention facility was distinguishable from her school administration work because it was less taxing and required less work. The Board also noted that the ALJ did not consider Mack’s resignation letter. The Board therefore denied her application for disability benefits. Mack appealed, alleging that the Board’s decision was not supported by the substantial credible evidence of record.

Holding:

A TPAF member is eligible for ordinary disability retirement benefits if a physician certifies that the member is physically or mentally incapacitated for the performance of duty. The courts have held that the applicant must have left her position due to the disability. The court held that Mack’s reliance on N.J.S.A. 52:14B-10(c) was misguided as it does not apply to expert witnesses. The Board stated specific reasons for crediting the testimony of Dr. LoPreto instead of Dr. Gollin. Furthermore, Dr. Gollin testified that he could not opine as to a specific date or event that triggered her disability, whereas Dr. LoPreto opined that Mack did not become functionally impaired until April 2016 according to her treating doctor, or June 2016, when she was hospitalized.

The court held that the Board’s denial of Mack’s ordinary disability retirement benefits was not arbitrary, capricious, or unreasonable and was supported by sufficient credible evidence.

Affirmed.

RELIEF UNDER RICHTER

Panckeri v. Allentown Police Department

Superior Court of New Jersey, Appellate Division

No. A-2015-19; 2022 WL 3585818

Originally Decided: 3/2/2022

Remanded by Supreme Court: 7/6/2022

Decided: 8/19/2022

Background:

Panckeri was injured during the course of his employment with the Allentown Police Department. He filed both a workers’ compensation claim, and a tort action against the driver and owner of the vehicle that injured him. Panckeri settled both matters. Allentown asserted a lien against Panckeri’s tort settlement under N.J.S.A. 34:15-40 (Section 40). Panckeri challenged the lien against the full amount of permanency benefits and argued that the lien should not include the amount for attorney’s fees and litigation costs for his workers’ compensation claim. The judge of compensation disagreed.

Thereafter, the Richter case was decided by the Supreme Court, which addressed whether recovery under the New Jersey Law Against Discrimination (LAD) was barred by the exclusivity provision of the Workers’ Compensation Act (WCA). The Court affirmed the ability to seek dual relief under both the LAD and WCA. In its opinion, the Court opined that the Section 40 lien was limited to 2/3 the amount paid in workers’ compensation to Richter in medical payments and temporary benefits with the remaining allocated to reimburse Richter’s compensation counsel.

Holding:

This court found that it is clear from the language in Richter that Section 40 was interpreted as preventing employers from being reimbursed for fees that a workers’ compensation claimant paid to counsel out of the compensation award. The court held that viewing the Richter decision through the lens of Section 40 suggests that the split refers to Richter’s potential damages award under the LAD, not her workers’ compensation award. The court held that Section 40 was silent on the treatment of attorney’s fees or litigation costs with regard to a workers’ compensation claim. Section 40 instead deals with the lien and net amount to be paid to a plaintiff when there is a third-party tort action, and the third-party counsel is being paid on a contingent basis pursuant to recovery, whereas the LAD provides for fee shifting if the plaintiff prevails.

The court declined to disturb its decision where there is no binding precedent holding that attorney’s fees and litigation costs arising out of the workers’ compensation claim should be excluded from a Section 40 lien.

Affirmed.

4856-7008-7218, v. 1