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

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

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

PA & NJ – CASE SUMMARIES 6/29/2022 to 7/31/2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

6/29/2022 – 7/31/2022

IMPAIRMENT RATING EVALUATIONS

Joseph Janison v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided June 29, 2022

Issues:

(1) Whether the Board erred by determining that Act 111 can be applied to injuries that occurred before its effective date; and (2) Whether the Board erred by determining that Act 111 is not an unlawful delegation of legislative authority?

Background:

In 2020 Employer filed the Modification Petition seeking to modify Claimant’s WC benefits based on an IRE.   The WCJ granted Employer’s Modification Petition.   Claimant appealed.

Holding:

The Court noted that it has made clear in its prior decisions that the 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Accordingly, the Board properly determined that Act 111 can be applied to injuries that occurred before its October 24, 2018, effective date.  Further, Act 111 is not an unlawful delegation of legislative authority.  The non-delegation doctrine does not prohibit the General Assembly from adopting as its own a particular set of standards which already are in existence at the time of adoption. That is what the General Assembly did here when it adopted the 6th Edition, second printing, of the AMA Guidelines.  When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will become the law of this Commonwealth. It is not delegating its authority to legislate.

Affirmed

Noel Maldonado v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 26, 2022

Issue:

Whether Act 111 is unconstitutional?

Background:

Claimant’s left knee was injured during the course of his employment, which resulted in Employer’s issuance of a notice of compensation payable. In November 2019, Employer requested an IRE of Claimant, which happened on February 6, 2020.   The physician-evaluator converted Claimant’s 9% lower-extremity impairment to a 4% whole-person impairment. Based on the IRE findings, Employer filed its petition to modify, which the WCJ granted pursuant to Section 306(a.3), modifying Claimant’s benefit status from total to partial.

Holding:

The retroactive application of Act 111 is not unconstitutional.  If the employer pursues a new IRE under Act 111 following the procedures of Section 306(a.3), it will be entitled to credit for the weeks of partial disability benefits paid prior to the effective date. In this case, the IRE of Claimant was performed after the effective date of Act 111.  The Court has previously rejected the claimant’s constitutional claims, holding that Claimants did not automatically lose anything by the enactment of Act 111, which simply provided employers with a way to change a claimant’s disability status by a different means.  This Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing total disability status.   When the PA Supreme Court struck Section 306(a.2) in Protz II, that provision was not held to be void ab initio, as though it had never been enacted in 1996.

Affirmed

Sheryl Sipes v. UPMC Jefferson Regional Home Health, LP (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 28, 2022

Issues:

(1) Whether Section 306(a.3) of the Act violates Article I, Section 1 or Article I, Section 11 of the Pennsylvania Constitution since it retroactively changes the remedies for an injured worker under the Act and (2) Whether Section 306(a.3) of the Act violates Article III, Section 18 of the Pennsylvania Constitution since it does not provide for reasonable compensation as it measures impairment and not disability?

Background:

Claimant fell and suffered an injury in the course of her employment with Employer.  Employer accepted the work injury through a Notice of Temporary Compensation Payable, which converted to a Notice of Compensation Payable. In 2019 Claimant underwent an IRE, which returned a 14% 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 temporary total disability to temporary partial disability (TPD) as of the date of the IRE. Claimant did not present any medical evidence to rebut Employer’s IRE.  The WCJ granted Employer’s petition and modified Claimant’s status to TPD.

Holding:

Claimant’s arguments that Act 111 of 2018, Section 306(a)(3) of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 511.3, is unconstitutional under Article I, Section 1, Article I, Section 11, and Article III, Section 18 of the Pennsylvania Constitution have been previously raised before, and rejected, by the Court. Accordingly, following prior, precedential decisions, the Court rejected Claimant’s constitutional challenges.

Affirmed

APPELLATE PRACTICE

Egan Payne, Sr. v. Americold Logistics LLC (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided June 29, 2022

Issue:

Whether the Claimant’s appeal to the Board was properly dismissed as untimely filed?

Background:

Claimant sustained a work injury in 2018. Employer issued a Medical-Only Notice of Temporary Compensation Payable accepting the work injury as a lumbar strain. The WCJ determined that the Medical-Only NTCP converted to a Medical-Only Notice of Compensation Payable by operation of law. Thereafter, Claimant filed the Claim Petition alleging that the 2018 low back injury rendered him partially disabled for a period, and thereafter totally disabled. Employer filed a Termination Petition.  The WCJ granted Claimant’s Claim Petition for partial wage loss benefits for a limited period, with a suspension thereafter.  The WCJ also granted Employer’s Termination Petition. Claimant appealed to the Board, and the appeal was dismissed as “not timely received by the Board.”

Holding:

An appeal will be considered filed within the 20-day period if it is mailed to the Board or is entered into WCAIS no later than the twentieth day after notice of a WCJ’s decision.  The Board’s Special Rules provide that an appeal by an aggrieved party “must” be mailed directly to the Board, as opposed to the WCJ or Bureau Petitions Section, within 20 days, on a form provided by the Board. Claimant incorrectly submitted his appeal via the USPS to the WCJ at the Philadelphia Field Office, within the appeal deadline. The Philadelphia Field Office forwarded the appeal to the Board for its consideration, and the Board date-stamped the appeal as received after the appeal deadline.  As Claimant improperly mailed his appeal to the WCJ, instead of the Board and the Board did not receive Claimant’s appeal until over one month after the appeal deadline, the Board properly dismissed Claimant’s appeal as untimely.

Affirmed

PENALTY PETITION

 Joseph Ambrogio v. Pocono Mountain School District & Inservco Ins. (WCAB)

Commonwealth Court of Pennsylvania, en banc – Unpublished Memorandum Opinion

Decided June 29, 2022

Issue:

Whether the WCJ and Board erred in denying the Claimant’s Petition in a case where it was alleged that he was not required to submit his reimbursement request for out-of-pocket expenses on forms intended for medical providers and neither the Medical Marijuana Act nor the Drug Act excuses employers from paying for the reasonable, necessary, and causally related medical expenses for work injuries under the WC Act?

Background:

A Compromise and Release Agreement was executed which resolved the indemnity portion of Claimant’s workers’ compensation claim. Employer remained responsible for the payment of reasonable and necessary medical expenses to treat Claimant’s work injury.  In 2018, after the passage of the Medical Marijuana Act, Claimant sought and obtained certification to use medical marijuana for his injury.  Between August 8, 2018, and December 4, 2019, Claimant submitted requests for reimbursement of his out-of-pocket expenses for medical marijuana to Employer’s counsel, which Employer denied.   Claimant filed a Petition asserting that Employer violated the WC Act by failing to pay reasonable and necessary medical expenses related to Claimant’s work injury.  Claimant agreed that the injury referenced in his medical reports for medical marijuana certification was “long thoracic nerve neuropathy” and that, in the C & R Agreement, his work injury was “described as a right shoulder impingement.” Claimant further agreed that, while he had sent the bills for reimbursement, he had not sent any medical records.  The WCJ issued a decision denying the Petition finding that there was no violation of the WC Act because Claimant had not submitted the reimbursement requests on the requisite forms and, until such reports are submitted, no obligation to pay arises.  The Board affirmed on other grounds, holding that, under the Drug Act, marijuana is a schedule I substance, and it is a federal crime to possess a controlled substance. Accordingly, the Board concluded that neither it nor the WCJ could order reimbursement to Claimant for the medical marijuana and affirmed the denial of the Petition on this basis.

Holding:

Claimant’s accepted work injury, is “right shoulder impingement.” The condition upon which Claimant’s medical marijuana certification and recertification were based was “G54.3 Thoracic root disorders, not elsewhere classified.” Claimant’s accepted work injury is not thoracic root disorder.  Further, “shoulder impingement” is not one of the serious medical conditions identified in the MMA upon which a medical marijuana certification may be issued. Employer is only liable for medical expenses that arise out of Claimant’s right shoulder impingement, and the medical marijuana certification and Claimant’s purchases of medical marijuana did not so arise from the accepted injury, so Employer was not obligated to reimburse Claimant for those expenses.

Affirmed, although with different reasoning than the Board

EXCLUSIVITY

 John Brown v. George Gaydos, an individual, t/d/b/a Gaydos Construction

Superior Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 5, 2022

Issues:

Whether the trial court erroneously concluded that George Gaydos was immune from third-party liability claims as an employer, under the Pennsylvania Workers’ Compensation Act (WCA)?  Whether the trial court erroneously applied the “dual capacity” and/or “co-employee” doctrines when granting George Gaydos tort immunity under the Pennsylvania Workers’ Compensation Act?

Background:

George Gaydos (Defendant) had worked in the contracting field through a sole proprietorship, Gaydos Construction.  Defendant never hired employees through Gaydos Construction and therefore never obtained workers’ compensation insurance. During the period when Defendant was operating his sole proprietorship, he purchased a John Deere skid loader and used the skid loader on Gaydos Construction jobs.  Defendant and Mark Raymond entered into a partnership agreement and formed American Concrete Solutions, LLC (“ACS”).   In addition to Defendant and Raymond, ACS hired additional employees and maintained a workers’ compensation insurance policy. While Defendant had performed various kinds of contracting work, including heating, air conditioning, and masonry through his sole proprietorship, ACS focused exclusively on concrete and paving jobs.  Plaintiff was employed by ACS and working on an ACS paving project. Defendant had brought the skid loader to the job site with the understanding that he was the only individual who was permitted to use it for the job. Plaintiff attempted to enter the skid loader in order to use it for the paving project, but the arm of the skid loader activated, crushing him between the bucket and the top of the cab.  Plaintiff sustained serious injuries, and he subsequently filed a claim for workers’ compensation benefits.  ACS issued a notice of temporary compensation payable, accepted Plaintiff’s injuries as compensable under the WCA, and began paying indemnity and medical benefits to Plaintiff.  Plaintiff filed a third-party complaint, alleging that Defendant was negligent by improperly maintaining the skid loader and failing to supervise or train Plaintiff to use the piece of equipment. Defendant asserted that he was immune from suit under the WC Act. The trial court entered an order granting Defendant’s motion for summary judgment.

Holding:

In light of the fact that Defendant did not directly employ Plaintiff and he did not exert exclusive control over ACS, the court held that there remains a genuine issue of material fact as to whether Defendant was Plaintiff’s “master” under the WCA. Therefore, the trial court erred by granting summary judgment in favor of Defendant on the basis of the employer immunity.  Nevertheless, summary judgement was appropriate based upon the co-employee immunity provision set forth in Section 205 of the WCA, as the Defendant’s alleged liability is based on his negligent conduct as a co-employee.  Co-employee immunity is not confined to rank-and-file workers but extends to the managers and executives of an employer and even individuals with an ownership interest in the employer.  Defendant was entitled to invoke the co-employee immunity bar to Plaintiff’s negligence action.  The evidence of record shows that Defendant was acting in the course of his performance of duties for ACS on the date Plaintiff sustained his injuries. There is no evidence that Defendant performed any work for or was acting on behalf of Gaydos Construction on the date of injury.  Defendant is not disqualified from invoking co-employee immunity in light of his status as a manager of ACS, with an ownership interest in the company.   Defendant’s work under the trade name Gaydos Construction and his use of the skid loader in this other business does not alter the fact that Defendant was performing work exclusively on behalf of ACS on the date of Plaintiff’s injury.

Affirmed

JUDICIAL DISCRETION

 Anwar Singleton v. Dom Leasing, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 5, 2022

Issue:

Whether the Board erred in concluding that the findings in the “Revised Decision,” that his work-related injuries were limited to a soft tissue neck injury, and that he fully recovered from that injury, were supported by substantial evidence?

Background:

Claimant worked as a long-haul truck driver for Dom Leasing, Inc. (Employer). While delivering goods to a Dollar Tree warehouse, he flipped his tractor-trailer. Following the accident, the Pennsylvania State Police cited Claimant for speeding and careless driving and imposed a $2,000 fine. Employer terminated Claimant’s employment.  Claimant filed a Claim Petition, alleging he suffered a nonspecific injury to his left ankle, head, neck, and lower back.  The WCJ granted the Claim Petition in part in a decision which the Board vacated and remanded.  On remand, in the “Revised Decision,” the WCJ credited Claimant’s testimony that his left ankle, shoulder, head, and neck were sore immediately following the accident. However, the WCJ rejected the remainder of Claimant’s testimony, finding he did not suffer a back injury and did not suffer from any ongoing injury.

Holding:

It is not the Court’s role to reopen the debate between the competing medical experts in a case; it is simply tasked with considering whether “substantial evidence” exists to support the WCJ’s findings.  The WCJ’s findings were clearly supported by the testimony of employer’s expert.

Affirmed

Pennsylvania State Police v. Michael Tilton (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: July 21, 2022

Issues:

Whether Claimant’s ongoing disability is attributable to the recurrence of Claimant’s non-occupational back pain such that the WCJ erred in granting the Review Petition?   Whether the WCJ erred in admitting a pathology report? Whether the WCJ erred in granting Claimant’s Penalty Petitions?

Background:

Claimant sustained a work injury while enrolled as a cadet in the Pennsylvania State Police Academy (Academy). Employer accepted liability for the work injury through issuance of a Notice of Compensation Payable (NCP), which described the work injury as a strain or tear of the lower back and began paying total disability benefits. The parties executed a Supplemental Agreement (First Supplemental Agreement), which suspended Claimant’s wage loss benefits based on his alleged return to work.  Claimant filed a Reinstatement Petition, seeking the payment of wage loss benefits retroactive to the date of his work injury; a Review Petition, requesting an amendment to the description of his work injury to include lumbar disc herniations with radiculopathy and aggravation of a preexisting back condition that required surgical intervention; and a Penalty Petition.   Several months later the parties executed another Supplemental Agreement (Second Supplemental Agreement), in which Employer agreed to reinstate Claimant’s wage loss benefits and to pay statutory interest on all past-due benefits. After Employer failed to make the agreed-upon interest payments, Claimant filed a new Penalty Petition.

Holding:

Employer’s argument that the testimony of Claimant’s witnesses failed to satisfy his burden of proof on the review petition is without merit. Employer’s argument that the evidence indicates that Claimant suffered a recurrence of back pain while rising from bed challenges the WCJ’s credibility determinations. It does not matter if there is evidence in the record that supports findings contrary to those made by the WCJ; the pertinent inquiry is whether there is any evidence to support the findings actually made. Which there was in this case.  Further, Employer’s argument that the pathology report is inadmissible hearsay was rejected.  The courts have long recognized the rule that hospital records are admissible as an exception to the hearsay rule and the Employer has not asserted that the pathology report does not constitute a medical or hospital record under Section 422(b) of the Act.  Further, Employer unquestionably violated the Act when it failed to honor its payment obligations under the Second Supplemental Agreement.  A claimant is entitled to statutory interest on all due and unpaid compensation.   The failure to make do payments need not be intentional to support the award of penalties.  Thus, even if a clerical error is to be blamed, the WCJ did not abuse his discretion in awarding penalties pursuant to Section 435(d)(i) of the Act, 77 P.S. § 991(d)(i).

There was a concurring opinion, which agreed with the outcome of the case, but disagreed that the pathology report was admissible. The concurrence noted that case law regarding hospital records in other contexts instructs that the records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms given.   This exclusion is consistent with the language of Section 422, which lists the terms “treatment” and “diagnosis” separately in Section 422(c), signifying that they denote distinct concepts.  Here, the disputed pathology report is expressly diagnostic in character. Thus, Section 422(b) does not permit its admission as a “record kept by a hospital of the medical or surgical treatment given to an employee in such hospital ….”  Further. although an expert may base his or her opinion on otherwise inadmissible documents, the Rules of Evidence do not permit the admission of a document solely because an expert relied on it.

Affirmed

Guillermo Bautista Capellan v. Ashley Holdings, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 28, 2022

Issue:

Whether there was competent medical and factual evidence in the record to support the WCJ’s finding that no work-related injury had occurred?

Background:

Claimant filed a claim petition alleging that he sustained a low back injury with pain in both legs while lifting furniture for Employer. Claimant sought full disability benefits. The WCJ conducted a hearing during which Claimant testified in person. The WCJ scheduled a final hearing, however, that WCJ retired in the interim, and another WCJ was reassigned the case. Thereafter, and following a conference call, the WCJ received deposition testimony from Claimant and various witnesses.  The WCJ determined that there was no credible evidence that Claimant suffered an injury at work and that Claimant failed to meet his burden of proof by not submitting credible evidence of a causal connection between his physical condition and the alleged incident at work.

Holding:

The burden of proof remained with Claimant throughout the proceedings and never shifted to Employer. Therefore, the testimony that was ignored was effectively irrelevant, and the WCJ’s findings of fact were sufficient to resolve the issues presented in this case.  Section 422(a) of the Act does not require the WCJ to address all of the evidence presented in a proceeding in his adjudication. The WCJ is only required to generally set forth the reasons for making the finding and is only required to make those findings necessary to resolve the issues that were raised by the evidence and which are relevant to making the decision.  Here, the WCJ found, as a matter of fact, that Claimant failed to satisfy his burden of proving that he sustained a work-related injury. This finding, in turn, was based on the WCJ’s credibility determinations.  More specifically, the WCJ rejected the testimony of Claimant and the testimony of his experts. In light of the WCJ’s explanations the Court concluded that the WCJ articulated adequate and objective reasons for deciding not to credit the testimonies of Claimant and his medical experts.

Affirmed

SUBSTANTIAL EVIDENCE OF RECORD

Sheila Lapotsky White v. Johnson Matthey Holdings, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 5, 2022

Issue:

Whether substantial, competent evidence supports the WCJ’s finding that Claimant had fully recovered from her right ankle injury?

Background:

Claimant was employed as a sales coordinator by Employer.  Concurrently, Claimant maintained secondary employment as a waitress. Claimant was injured when she slipped and fell in Employer’s breakroom. Claimant ceased working as a waitress immediately but continued to work for Employer for several months.  Employer acknowledged that Claimant suffered multiple injuries including both physical and psychological, including a right knee contusion, a right ankle sprain, and unspecified injuries to the neck, lumbar, and left knee.  The Claimant underwent an IME which determined that Claimant had recovered from her work injuries, except the injury to her right knee, and that Claimant could return to sedentary work with restrictions.  After considering the evidence, the WCJ determined that Claimant had sustained work-related injuries to her right knee, the cervical and lumbar areas of her spine, right wrist, and right ankle. However, the WCJ further determined that Claimant had recovered from all injuries except the injury to her right knee. For these reasons, the WCJ concluded that Claimant was able to return to her position with Employer, considering the accommodations offered, but remained entitled to partial disability benefits because she could not return to her secondary employment as a waitress.

Holding:

Employer’s expert’s opinion concerning Claimant’s recovery from an injury to her right ankle was not equivocal or incompetent and was based upon substantial evidence of record.  A medical expert’s failure to examine a specific body part is not necessarily fatal, provided he assumes the presence of an injury and finds it to be resolved when he conducts the examination.  Employer’s expert testimony was competent medical evidence that Claimant had recovered from an injury to her right ankle.  The failure of the expert to examine her right ankle specifically does not render the opinion incompetent, where Claimant did not express any complaint regarding her ankle and in referring to an incident report from the day following Claimant’s accident, the expert noted that Claimant had complained of injuries to “both knees, right ankle, right wrist, and low back.” In addition, the expert reviewed an x-ray report that revealed no fracture in Claimant’s ankle. He based his opinions on his physical examination, the records available at the time, and Claimant’s description of her current ailments.

Affirmed

OFFSETS AND CREDITS

 Giles J. Cannon, Inc. v. Gordon Walker (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 18, 2022

Issue:

Whether the Employer is entitled to a credit for Claimant’s Federal Pandemic Unemployment Compensation (FPUC) benefits pursuant to Section 204(a) of the Act?

Background:

Claimant was injured when he tripped on mesh at work and sustained a low back contusion. Pursuant to a stipulation, Employer acknowledged Claimant’s injury and agreed to reinstate his benefits.  The parties remained at an impasse as to what credits Employer should receive against its workers’ compensation obligation. Claimant had received unemployment compensation (UC) benefits pursuant to Pennsylvania law and FPUC benefits pursuant to the CARES Act. Although the parties agreed that Employer should receive a credit for the UC benefits, Claimant disputed Employer’s assertion that Employer should receive a credit for Claimant’s FPUC benefits. In addition, Claimant disputed Employer’s assertion that it should receive a credit for Claimant’s $1,200 federal stimulus payment, also resulting from the CARES Act.  The WCJ concluded that Employer was entitled to a credit for Claimant’s FPUC benefits but not for his $1,200 stimulus payment. Claimant appealed to the Board. On September 15, 2021, the Board issued its opinion and order, which affirmed in part and reversed in part the WCJ’s final decision. The Board reversed the determination that Employer was entitled to a credit for Claimant’s FPUC benefits but affirmed in all other respects.  Employer filed a petition for review in this Court, and now argues the Board erred by concluding that it is not entitled to a credit for Claimant’s FPUC benefits.

Holding:

The purpose of Section 204(a) is to excuse employers from paying duplicate benefits for a single loss of earnings. Disallowing a credit for FPUC benefits would not be contrary to that intent since the federal government paid for FPUC benefits. Further, granting a credit would result in disparate treatment between those who are permitted to collect FPUC by virtue of having lost their jobs, and those who may not because they are burdened with an injury in addition to unemployment. Thus, the employer was not entitled to a credit for the claimant’s FPUC benefits.

Affirmed

SPECIFIC LOSS BENEFITS

 Barbara Daquilante v. Mercy Catholic Medical Center (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 18, 2022

Issue:

Whether the limitation on recovery for disfigurement to disfigurement of the head, neck, and face violates the Remedies Clause and the equal protection principles of the Pennsylvania Constitution?

Background:

Claimant sustained a work injury when she was hit by a truck during the course of her employment with Employer. Claimant filed a claim petition alleging that she had sustained severe scarring of both legs as of August 20, 2012. Employer moved to dismiss the second claim petition because the Act does not authorize specific loss benefits for disfigurement of the legs. By decision and order, the WCJ denied the second claim petition, concluding that the scarring of Claimant’s legs was not compensable. By opinion and order, the Board affirmed.

Holding:

Section 306(c)(22)’s limitation of recovery does not violate the Remedies Clause. Section 306(c)(22) provides for benefits for “serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment.” Article III, Section 18 of the Pennsylvania Constitution expressly authorizes the legislature to limit the remedies available to workers’ compensation claimants, effectively carving out an exception to the Remedies Clause. Such a reading does not deny a claimant the ability to seek total or partial disability benefits for disfigurement of the legs as measured by loss of earning power, it simply does not treat disfigurements to the legs on par with the serious disfigurement to the head, neck, and face as set forth in Section 306(c)(2).   Further, Section 306(c)(22) does not violate the equal protection provisions of the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Pennsylvania Constitution.  The Act confers a social welfare benefit on injured workers and a statutory classification thereunder is consistent with equal protection if it meets the rational basis test. The test is met here because cost containment for workers’ compensation benefits is a legitimate state interest. Employers benefit from not having to pay specific loss benefits for some injuries or higher insurance rates for conditions not included in specific loss provisions, so they can be more competitive. Furthermore, it is possible that the legislature believed disfigurement above the neck to create a greater impediment to employment because it may not be as inconspicuously covered by clothing as injuries below the neck. Whether this is inequitable is a question for the General Assembly, not the Court.

Affirmed

Reed Shaffer Const. and Donegal Mutual Ins. Co. v. Glynn Smith (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 6, 2022

Issue:

Whether the work injury was limited to a specific loss?

Background:

Claimant sustained lacerations to his right middle, ring, and small fingers during the course and scope of his employment with Employer as a full-time carpenter.   Employer issued a Notice of Temporary Compensation Payable acknowledging the injury as laceration cut, scratches, abrasions, superficial wounds, calluses, wound by tearing, and began paying Claimant wage loss benefits.   Employer later filed the Suspension Petition, alleging that, since Claimant suffered specific loss of use of only 50% of his right third, fourth, and fifth fingers, without any injuries or disabilities separate and apart from those three injured digits, Employer was only responsible for paying 58 weeks of specific loss benefits.  Employer has been paying Claimant total disability benefits, but filed the Suspension Petition asserting that, since Claimant’s work injury was limited to a specific loss his WC benefits must cease when the amount of benefits Employer has paid equals the amount to which Claimant would have been entitled for that specific loss.

Holding:

If a claimant suffers an injury that is separate and apart from a specific loss of a body part, that results in a loss of earning power, a claimant may receive compensation under Section 306(a) of the Act, or Section 306(b) of the Act, in addition to benefits for the specific loss of a body part. The WCJ concluded that the Employer failed to sustain its burden of proof in the context of its Suspension Petition based upon the credible testimony of Claimant as well as the accepted opinions and conclusions of Claimant’s expert, finding that there was an injury, separate and apart from the specific loss, that was causing disability.  Employer’s appeal essentially is an attack on the WCJ’s credibility determinations. Because the WCJ’s credibility determinations were clearly supported by the record, the Court may not disturb them.

Affirmed

COMPROMISE AND RELEASE

 Jesse R. May v. Dana Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 21, 2022

Issue:

Whether the C&R Agreements should be voided as a result of fraud, due to the alleged improper use of the 2015 IME, and Claimant was mistaken in his belief that they were not binding, and Employer would continue to remain liable for medical expenses in connection with his 1993 work-related injury?

Background:

Claimant proceeded pro se on petitions to review compensation benefits and to review medical treatment and/or billing.  At all times relevant to the history surrounding these proceedings, Claimant was represented by his former counsel and, with the assistance of said counsel, executed four Compromise and Release (C&R) Agreements in 2003. The C&R Agreements were approved by a WCJ after the WCJ confirmed, at hearings and based on Claimant’s own credible testimony, that Claimant entered the agreements with full understanding of their terms, conditions, and legal significance.

Holding:

The WCJ issued a reasoned decision, supported by substantial evidence, and the WCJ did not otherwise commit an error of law in rendering his determinations.  While the courts may rescind a C&R agreement based on a clear showing of fraud, deception, duress, or mutual mistake, the burden to make such a showing rests with the party seeking to set aside the agreement. The Court agreed with the Board that the WCJ issued a reasoned decision in rejecting Claimant’s testimony as not credible. More specifically, the WCJ determined that Claimant’s current testimony was directly contradicted by the transcript of the 2003 hearing in which Claimant credibly testified that he understood the full legal significance of the C&R Agreements, and, also, the plain language of the C&R Agreements themselves. Moreover, for essentially the same reasons, the WCJ found that Claimant failed to adduce credible evidence establishing that the C&R Agreements should be set aside due to fraud, duress, or deception, or that the parties committed a mutual mistake of fact. In short, the WCJ’s findings in these regards rested solely upon the WCJ’s determination that Claimant’s testimony was not credible. And, because this Court has no basis upon which to disturb the WCJ’s credibility determination, we cannot conclude that the WCJ erred in failing to set aside the C&R Agreements.

Affirmed

TERMINATION PETITION

 William Tobin v. Upper Darby Police Department (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 29, 2022

Issues:

Whether the current WCJ improperly disregarded the findings made in an earlier proceeding by a different WCJ; Whether the current WCJ’s findings are supported by substantial and competent medical evidence; and Whether the current WCJ failed to apply the correct standard for terminating benefits under the Workers’ Compensation Act (Act).

Background: 

Claimant sustained a work injury while employed as a police officer for the Employer. Employer accepted liability for the injury through issuance of a Notice of Compensation Payable (NCP), which described the work injury as a lumbosacral sprain and strain and a contusion of the right knee.  Based on the results of a 2013 independent medical examination (IME), Employer filed a petition to terminate Claimant’s benefits, alleging he had fully recovered from his work injury.  That WCJ denied Employer’s termination petition.  Employer filed a second termination petition in 2016.  Claimant denied Employer’s allegations and filed a review petition requesting an amendment to the description of his work injury.  The WCJ granted Employer’s second termination petition and denied Claimant’s review petition.  Based on her credibility determinations, the WCJ concluded that Employer met its burden of proving that Claimant had fully recovered from his June 13, 2012 work injury.   Regarding Claimant’s review petition, the WCJ determined that Claimant was precluded from relitigating the description of his work injury by the doctrines of res judicata and collateral estoppel.   On appeal, the Court found that the WCJ erred in concluding that Claimant was precluded from seeking an amendment to the description of his work injury, as that issue was never raised in the termination proceedings before the first WCJ, who was only required to determine whether Claimant had fully recovered from his work injury.  However, the Court found that the first WCJ did not expand the description of Claimant’s work injury when he credited various opinions that Claimant had not fully recovered.   The Court remanded the matter for a determination on the proper description of Claimant’s work injury, followed by a new consideration of Employer’s second termination petition.  Following remand, the WCJ issued a decision denying Claimant’s review petition and granting Employer’s termination petition.

Holding:

The WCJ has exclusive authority to act as factfinder, determine the credibility of witnesses, and weigh the evidence, and the WCJ’s findings will not be disturbed if they are supported by substantial, competent evidence.   The second WCJ did not err in terminating Claimant’s benefits and she did not disregard the findings of fact made by the earlier WCJ in the first termination proceeding.   Claimant’s argument that the earlier decision can only be read to have expanded the injury was rejected, as Claimant’s additional diagnoses were only referred to by the first WCJ when summarizing expert testimony, whose opinions were credible only insofar as they related to the work injury.  Further the second WCJ did not ignore substantial, competent evidence that Claimant sustained more extensive injuries than those listed on the NCP. The second WCJ ultimately concluded that Claimant’s work injury to his lumbar spine was limited to a sprain and strain. Further she  adequately explained her reason for doing so, which were supported by substantial evidence.  Finally, the second WCJ applied the correct legal standard in granting Employer’s second termination petition.   There was evidence demonstrating a change in his work-related condition from the date of the decision denying Employer’s first termination petition.  The claimant had a normal examination. Claimant advised Dr. McHugh that he no longer took prescription or over-the-counter medication to treat his lumbar symptoms. The record demonstrates the requisite change in Claimant’s condition from the date the first WCJ denied the first termination petition.  Employer presented evidence that sufficiently demonstrated a change in Claimant’s physical condition from the denial of the first termination petition.

Affirmed

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

7/1/2022-7/31/2022

STATUTE OF LIMITATIONS

Servais v. Ocean Wholesale Nursery, LLC

Superior Court of New Jersey, Appellate Division

No. A-2988-20; 2022 WL 2720434

Decided: 7/14/2022

Background:

Petitioner/Appellee Donald Servais worked as a nursery manager for 5 years. On January 31, 2017 he and Ocean Wholesale Nursery (the Nursery) entered into an Agreement for $5,000 “in full and complete satisfaction of any and all of his actual and potential claims against the [Nursery].” The Agreement also stated that the consideration would constitute the entire amount of consideration provided to him under the Agreement, and petitioner would not seek any further compensation for and damages, costs, disbursement, or attorney fees in connection with any of the matters encompassed by the Agreement. The Agreement also released the Nursery from any and all actual or potential claims known or unknown which may have arisen or may arise before the date petitioner signed the Agreement.

On October 17, 2018, petitioner filed an employee claim petition, alleging that he had amputated three fingers on his right hand while cutting pallets on January 26, 2016, over 2 years and 8 months prior. On January 18, 2019, the Nursery moved to dismiss the petition, arguing that petitioner failed to file a claim within the 2 year statutory period. Petitioner argued his claim was timely because it was within 2 years of executing the Agreement, and the Agreement was ambiguous in whether the payment was also a partial payment for his work injury.

The judge of compensation conducted a 4 day hearing instead of reviewing the Agreement and making a finding about its ambiguity. The compensation judge denied the Nursery’s motion. The judge concluded he could “only assume” the Agreement included all claims, including the loss of petitioner’s finger, and also held that the $5,000 payment extended the statute of limitations. The parties then proceeded to trial, after which the judge held that petitioner suffered a permanent disability and awarded him $75,000. The judge also found that the $5,000 paid under the Agreement included $1,000 for the loss of petitioner’s fingers, and provided no explanation and factual support for that finding.

The Nursey moved for a stay of judgment pending appeal. The Nursery argues the compensation judge erred by: 1) mischaracterizing the $5,000 separation payment as a workers’ compensation payment; 2) violating their due process rights by determining the petitioner was an employee and not an independent contractor and he had been injured in the course of his employment without holding a trial on these issues; and 3) arbitrarily dividing the $5,000 payment into a $4,000 separation payment and $1,000 work injury payment.

Holding:

The court held that when reviewing the Agreement de novo, there is no ambiguity and the plain language of the Agreement expressly excluded petitioner’s workers’ compensation claim. Additionally, the court held that the judge erred in conducting a 4 day hearing before deciding if the Agreement was ambiguous, and subsequently erred in finding the Agreement was ambiguous after the hearing.

The court further held that a judge cannot assume an agreement includes all claims when it expressly excludes some claims, and the finding that $1,000 of the $5,000 payment was payment for the loss of fingers had no basis in the record. Under the Agreement, petitioner expressly reserved his right to file a workers’ compensation claim, but he just did not do so in a timely manner.

The court held that the Agreement was not ambiguous, and it clearly excluded workers’ compensation claims, therefore the $5,000 payment was not related to any work-related injury and did not toll the two-year statute of limitations.

Reversed and Vacated

LATE NOTICE – EXTRAORDINARY CIRCUMSTANCES

Ugaz v. County of Hudson, et al.

Superior Court of New Jersey, Appellate Division

No. A-2671-20; 2022 WL 2838825

Decided: 07/21/2022

Background:

Plaintiff was employed as a corrections officer at the Hudson County Correctional Facility when he tested positive for COVID-19 on March 25, 2020. Plaintiff was in the hospital for 10 days, where he advised staff that he had been indirectly exposed at work to a person who later tested positive for COVID-19. He was released from the hospital on April 4, 2020.

Plaintiff filed a notice of tort claim on December 31, 2020 and moved for leave to file a late notice in March 2021. The motion for leave to file a late claim included a certification from the plaintiff stating he retained an attorney in May 2020 to pursue workers’ compensation benefits and learned in December 2020 that the family of another officer was pursuing litigation against the county, and it was then he had a basis to believe that his illness was due to the fault of another. The trial court granted the motion on April 27, 2021.

The trial court accepted plaintiff’s certification in combination with the ongoing public health crisis that the statutory threshold for permitting late notice of claim was met. On appeal, defendants assert the court abused its discretion in finding extraordinary circumstances existed to allow plaintiff to file a late notice of tort claim.

Holding:

The court stated that a trial court may grant a motion for leave to file a late notice if there are “sufficient reasons constituting extraordinary circumstances” for the failure to timely file a notice of claim within the 90 day statutory period. Furthermore, the Legislature intended the “extraordinary circumstances” to be a demanding standard.

The court distinguished several cases where the extraordinary circumstances standard was met, and distinguished the instant case stating that plaintiff did not present any facts to demonstrate a situation so ‘severe, debilitating, or uncommon’ that would prevent him from contacting an attorney and pursuing a claim. The court found that on the contrary, plaintiff was aware that he contracted COVID-19 at work and retained counsel in May 2020 to procure workers’ compensation benefits.

The court held that the instant circumstances did not meet the threshold for permittance of a late notice, and his conduct in the 90 days following his diagnosis confirms he could have contacted an attorney. The court held that the trial court misapprehended the applicable law by finding there were sufficient reasons to permit the late filing, as the statute and caselaw require sufficient reasons constituting extraordinary circumstances, which do not exist in this matter.

Reversed

Waddell  v. County of Hudson, et al.

Superior Court of New Jersey, Appellate Division

No. A-2661-20; 2022 WL 2838829

Decided: 7/21/2022

Background:

Bernard Waddell contracted COVID-19 in March 2020, while working as a corrections officer in the Hudson County Correctional Center. He died on April 1, 2020. Plaintiffs filed a notice of tort claim in November 2020 and moved for leave to file a late notice in March 2021. Bernard’s wife, Sheliah, presented a certification stating that Bernard’s death certificate confirmed he died of viral pneumonia secondary to COVID-19, and that from mid-April until the end of May 2020, her son was sick with COVID-19, and she was grieving the death of her husband. She further certified that she did not consider that her husband’s death might have been due to the fault of another until later, and she retained counsel in October 2020.

The defendants presented a certification from a claims analyst for the third-party administrator of the County, which stated that he opened a workers’ compensation claim for Bernard on April 2, 2020 and he had communicated with Sheliah in July regarding her husband’s compensation claim and advised her that his timecard revealed he was exposed to co-workers and inmates who tested positive for COVID-19. Sheliah received reimbursement for funeral expenses as well as dependency benefits. Defendants also presented a certification from an employee of the County Finance Department, which stated that she assisted Sheliah in May 2020 and for several months following helping her to obtain several types of benefits available, including the federal Public Safety Officers’ Benefit Program.

The court granted plaintiff’s motion, stating that they accepted her certification in combination with the ongoing public health crisis as proof that sufficient reasons were shown for failure to timely file the notice of tort claim. Defendants appealed, asserting that the court abused its discretion in finding extraordinary circumstances existed to permit plaintiffs to file a late notice of tort claim.

Holding:

The court stated that a trial court may grant a motion for leave to file a late notice if there are “sufficient reasons constituting extraordinary circumstances” for the failure to timely file a notice of claim within the 90 day statutory period. Furthermore, the Legislature intended the “extraordinary circumstances” to be a demanding standard.

The court distinguished several cases where the extraordinary circumstances standard was met, and distinguished the instant case stating that plaintiff did not present any facts to demonstrate a situation so ‘severe, debilitating, or uncommon’ that would prevent her from contacting an attorney and pursuing a claim. The court stated that she was not incapacitated, confined to a hospital, or under a mental impairment as seen in other cases, and though her son was sick, she did not say he was hospitalized or gravely ill.

The court stated in the weeks following her husband’s death, Sheliah had contact with county employees and workers’ compensation claims representatives regarding potential benefits related to her husband’s death and she was aware he was exposed to COVID-19 while working for the county, which led to his death.

The court held that the instant circumstances did not meet the threshold for permittance of a late notice, and in the 90 days following her husband’s death Sheliah could have contacted an attorney from her home, as she eventually did. The court held that the trial court misapprehended the applicable law by finding there were sufficient reasons to permit the late filing, as the statute and caselaw require sufficient reasons constituting extraordinary circumstances, which do not exist in this matter.

 Reversed

PA & NJ – CASE SUMMARIES 6/1/2022 to 6/30/2022

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
6/7/2022 – 6/29/2022

EXCLUSIVITY

Samantha Riemenschneider, Admin. of the Estate of David Scott Macleary v. D. Sabatelli, Inc. & Anthony Sabatelli
Superior Court of Pennsylvania – Published Opinion
Decided June 7, 2022

Issue:

Whether the trial court erred as a matter of law in granting Employer’s Preliminary Objections as to the Exclusivity Provision of the Workers’ Compensation Act?

Background:

David Scott Macleary sustained fatal injuries when the brakes failed on a dump truck he was operating, and it began to roll.  Macleary was acting at the time within the course and scope of his employment with the Employer and received workers’ compensation benefits through his employer on the day he died.  Samantha Riemenschneider, as the administrator of the Estate of David Scott Macleary, instituted this suit asserting counts for negligence and wrongful death, naming employer as a defendant. Riemenschneider argued that her wrongful death suit was permissible, notwithstanding the Workers’ Compensation Act’s exclusivity provision, because she was not within the class of individuals entitled to bring a claim under the Act.  She pointed out that children of decedents are eligible for workers’ compensation benefits only if they are “less than 18 years of age, are disabled until the period of disability ends, or, if the child is in school, until the child reaches the age of 23,” and none of those conditions applied here. The trial court determined that the exclusivity provision barred this suit and sustained the preliminary objections.

Holding:

The Court engaged in statutory interpretation to determine the applicability of the exclusivity provision. Riemenschneider did not allege that any language of the Act is ambiguous and should be construed in her favor, much less that the plain language of the Act permits her suit.   The Act plainly states that it provides compensation to children of deceased employees, albeit only if they meet certain requirements.  Riemenschneider’s claim, as the child of a deceased employee, falls squarely within the purview of the Act. However, the exclusivity provision bars the instant suit.  The employee received benefits under the Act on the day of his death. In contrast, Riemenschneider is not an employee, and does not belong to a “class of employees,” but to a potential class, whom the Act purposefully excludes from recovery.   The limitation on beneficiaries is one of the tradeoffs embodied in the Act.

Affirmed

IMPAIRMENT RATING EVALUATIONS

Vincent Sicilia v. API Roofers Advantage Program (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Published Opinion
June 7, 2022

Issue: 

Whether the WCJ erred as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of Claimant’s work injuries?

Background:

Claimant sustained work-related injuries in 1999, when he fell from a ladder on a worksite. Employer accepted Claimant’s work injuries as a lumbar strain and a left knee contusion. The work-related injury was later expanded to include additional physical and psychological diagnoses.  The work injury was again expanded on additional occasions thereafter.  In October 2019, Employer filed a petition seeking a modification of Claimant’s indemnity benefits from total to partial as of August 1, 2019, based upon an Impairment Rating Evaluation (IRE), which considered the accepted work-related injuries.  The result was 25% total impairment.  However, the clinical summary portion of the IRE report included diagnoses secondary to the accident beyond those described in the prior decisions of the assigned WCJs.  Employer asked the IRE reviewer for an addendum to the report including the whole person impairment rating based upon the diagnoses listed in the clinical summary. The IRE addendum assigned a whole person impairment rating of 45%, putting claimant past the 35% threshold for modification.  The WCJ found that the later injuries, that had not been subject to review in court could not be considered.

Holding:

The majority, in a 2-1 split Commonwealth Court decision, determined that a workers’ compensation judge’s review of a claimant’s impairment rating evaluation should have considered work injury-related diagnoses that the claimant received after his initial injury determination. The decision reinstated claimant’s total disability benefits, reversing the Board which affirmed the WCJ’s modification of his compensation status to partial disability.  Under the majority’s interpretation, the Pennsylvania Supreme Court’s decision in Duffey II grants physician-evaluators a large amount of discretion in establishing what diagnoses stem from work-related injuries and therefore supports their reversal of the WCAB decision.  Claimant argued this precedent disputes the WCJ’s determination that the prior injury descriptions in previous WCJ decisions dictate what may be considered in the IRE.  The Commonwealth Court majority agreed, holding that the WCJ’s analysis did not grant the evaluating physician adequate discretion. The Court held that there is no authority supporting the argument that such adjudications have preclusive effect on the IRE physician-evaluator.  The only reason proffered for discrediting the additional diagnoses was that they had not been previously found by other WCJs. The WCJ erred as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of Claimant’s work injuries.

The dissenting judge argued that the WCJ had been correct to discount later diagnoses since impairment evaluations hinge on an adjudicated injury being static.  Further, the dissent disagreed with the idea that the judge improperly discounted parts of the doctor’s findings, arguing that the judge decided that the doctor’s testimony regarding the later injuries was not credible at that the WCJ’s express discrediting of the IRE physician’s testimony supports her ultimate decision to grant employer’s modification petition.

Reversed and remanded by a 2-1 Majority
Angela DiPaolo v. UPMC Magee Women’s Hospital (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided June 13, 2022

Issue:

Whether Act 111’s provisions allowing employers to credit previously paid benefit weeks violate either due process or due course of law principles contained in the Pennsylvania Constitution?

Background:

Claimant sustained a work-related injury in 2008. Employer issued a Notice of Compensation Payable and began paying Claimant temporary total disability (TTD) benefits.  In 2011, Claimant underwent an IRE which returned a 6% impairment rating based on the Sixth Edition of the AMA Guides. Employer filed a Notice of Change in Benefit Status based on the 2011 IRE, and Claimant’s benefit status was changed to temporary partial disability (TPD) as of the date of the 2011 IRE.  Based on the Protz cases, Claimant sought reinstatement of her TTD status, which was granted as of February 19, 2016.  Thereafter, the General Assembly enacted Act 111 of 2018.  Based on Act 111, Employer requested that Claimant undergo another IRE, which she ultimately did in 2019. After the 2019 IRE returned an impairment rating of 23% Employer filed a modification petition seeking to change Claimant’s status to TPD.

Holding:

The due process requirement with respect to both prospective and retroactive aspects of legislation is a legitimate legislative purpose furthered by rational means. A vested right in this context is something more than a mere expectation based upon an anticipated continuance of existing law. It must have become a title legal or equitable to the present or future enforcement of a demand, or a legal exemption from a demand made by another.  Due course of law protections arise from Article I, Section 11 of the Pennsylvania Constitution and has a distinct meaning in the Remedies Clause and provides an independent guarantee of legal remedies for private wrongs by one person against another, through the state’s judicial system.  The Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing TTD status.  The claimant is not without recourse, because Act 111 specifically provides that a claimant placed in partial disability status based on an IRE may challenge the change in his or her status by either presenting a subsequent IRE reflecting a 35% or more impairment rating or establishing through litigation that his or her earning power has decreased.   Act 111’s credit provisions clearly express an intent to apply to prior-injured claimants.  An accrued cause of action and an award of workers’ compensation benefits are not equivalent; workers’ compensation benefits, even once awarded, have always been subject to modification. Moreover, the Court explained that the amendment did not violate due process principles because after balancing the interests of claimants and employers, the amendment amounted to a rational means of implementing a legitimate legislative purpose.  Claimant has not established a vested right in her post-Protz-pre-Act 111 TTD status. She therefore has not met the requirement for relief under either due process or due course of law principles.  Further, Act 111’s restoration of the IRE process does not violate the “reasonable compensation” aspect of Article III, Section 18 of the Pennsylvania Constitution.

Affirmed

Martin Harold v. Abate Irwin, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 13, 2022

Issue:

Whether Act 111 violated Claimant’s Due Process rights or the “reasonable compensation” requirement under the Pennsylvania Constitution?

Background:

Claimant sustained a work-related injury. Claimant underwent an IRE on November 12, 2019 (2019 IRE), which returned a 10% impairment rating based on the Sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Employer filed a modification petition seeking to change Claimant’s benefit status from TTD to TPD as of the date of the IRE. Claimant raised and preserved constitutional challenges to Act 111. The WCJ granted Employer’s petition and modified Claimant’s status to TPD as of the date of the 2019 IRE. The Board affirmed.

Holding:

A vested right in this context is something more than a mere expectation based upon an anticipated continuance of existing law. Claimants did not automatically lose anything by the enactment of Act 111, which simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence. The claimants’ interest in having his claims adjudicated based on the state of the law before the amendment was enacted was not a vested right, but rather a mere expectation based upon an anticipated continuance of existing law. The Courts have never held that any IRE preceding the Protz cases was automatically erased in its entirety, including the weeks of benefits paid by employers for claims arising prior to Act 111.  Claimant has not established a vested right in his post-Protz-pre-Act 111 TTD status. He therefore has not met the requirement for relief under either due process or due course of law principles.  Further, IREs are generally viewed as a more cost-efficient method of modifying a claimant’s benefits compared to alternatives.  The Court has not found IREs to be inherently unreasonable as an alternative means for employers to modify a claimant’s status from TTD to TPD, and the Courts have previously rejected arguments that IREs are inherently unreasonable because they do not depend on a showing by an employer of a claimant’s resumed earning power. Act 111’s provisions granting employers credit for previously paid benefit weeks does not violate either due process or due course of law principles. Further, by reenacting the IRE process, Act 111 does not violate the “reasonable compensation” aspect Article III, Section 18 of the Pennsylvania Constitution.

Affirmed

MODIFICATION/TERMINATION OF BENEFITS
Franklin MONTANO v. ADVANCE STORES COMPANY, INC (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided June 27, 2022

Issue:

Whether the work injury has again affected claimant’s earning ability, or was he terminated for “bad Faith” willful misconduct?

Background:

Claimant sustained injuries to his back and right shoulder when boxes of windshield washer fluid fell on him while in the course and scope of his employment as a general laborer in the warehouse of Employer. Claimant returned to work in a modified-duty position as a trainer with Employer. Employer issued a medical-only Notice of Compensation Payable (NCP) for a work-related injury of an upper back area strain/tear with noted right shoulder pain. Claimant was later discharged from his employment with Employer based on his job performance as a trainer. Claimant filed the Reinstatement Petition seeking the reinstatement of temporary total disability (TTD) benefits for his work-related injuries because he was terminated while on modified duty because of work injury related medical restrictions.  Both Claimant and the employer’s witness confirmed that claimant would have continued to work had he not been fired.  The Employer’s witness testimony and an HR Report outlined the bases for Claimant’s termination, i.e., that he continued to submit incomplete paperwork and signed off that they were done, and after several conversations, thereby falsifying information.  The WCJ found the Report to be credible evidence and it constitutes substantial competent evidence supporting the WCJ’s finding of bad faith on Claimant’s part underlying the termination of his employment with Employer.   The WCJ found that Claimant was totally disabled for a period of time, due to his work-related back surgery after which he was capable of performing the light-duty job for Employer from which he was legitimately discharged.

Holding:

A claimant who has established a partial disability due to a work-related injury should generally continue to receive partial disability benefits by virtue of his loss in earnings capacity, even though subsequently discharged from employment, because the loss in earnings capacity remains extant. Whether the same claimant may receive total disability benefits depends upon whether the employer can demonstrate that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant’s lack of good faith.  Employer’s purported failure to follow its progressive discipline policy does not compel the award of TTD benefits because it in no way affects the WCJ’s finding of bad faith on Claimant’s part.  The unemployment concept of “willful misconduct” is not the standard in workers’ compensation, which goes by the lesser “lack of good faith” standard, which Employer was able to meet in this case.   Claimant may not collaterally attack the WCJ’s determination of his bad faith precluding the award of workers’ compensation benefits under the Act by injecting standards applicable to the award of unemployment compensation benefits under the Unemployment Compensation Law.   Employer’s purported failure to follow its progressive discipline policy does not affect the WCJ’s determination, supported by substantial competent evidence, that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant’s lack of good faith.

Affirmed

Overbrook Golf Club v. Mark Scott (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 17, 2022

Issue:

Whether the WCJ and the Board erred in determining that Claimant’s TTD benefits should be reinstated effective the date of the claimant involuntary discharge from employment?

Background:

The WCJ modified Claimant’s benefits to temporary partial disability benefits based on available light duty work from July 25, 2017, through November 18, 2017. The WCJ found that the modified duty job ceased to be available on and after November 19, 2017, when Employer terminated Claimant’s employment. Accordingly, the WCJ reinstated Claimant’s TTD benefits as of that date. Importantly, the WCJ found that claimant’s expert credibly testified that as of November 13, 2017, Claimant was not physically able to perform any type of work, including the position offered by Employer on July 25, 2017. That position ceased to be available when Employer terminated Claimant’s employment on November 19, 2017.

Holding

The WCJ and the Board did not misapply the burden of proof on the petitions and did not err in reinstating Claimant’s benefits effective November 19, 2017. Once a claimant has refused an available job in bad faith, the employer’s obligation to show job availability ends and the claimant must show a worsening of his medical condition to be granted a reinstatement to total disability.  In the present case, the WCJ did not base Claimant’s reinstatement on claimant’s expert’s credited opinion. Rather, the WCJ based the reinstatement on the lack of availability of the position, which, in and of itself, does not support a restoration of Claimant’s TTD benefits. Therefore, the WCJ applied the wrong burden of proof in the reinstatement of Claimant’s TTD benefits.  However, the WCJ had a basis for reinstating Claimant’s TTD benefits on the basis of claimant’s expert’s credited testimony that Claimant was unable to perform any work. Thus, even though the wrong burden of proof was applied, the court affirmed the reinstatement of Claimant’s TTD benefits because Claimant proved a worsening of his condition.  Further, the WCJ’s finding that claimant’s expert was credible was not inconsistent with the WCJ’s reinstatement of benefits as of November 19, 2017, rather than November 13, 2017, the date claimant’s expert took Claimant off work. There is no dispute that the WCJ reinstated Claimant’s benefits on the basis of claimant’s expert’s credited testimony. As of November 13, 2017, Claimant was not able to work at any job.  This credited opinion established that Claimant’s condition worsened and that he could no longer work in any position as of November 13, 2017.

Affirmed

Mary Ellen Borrell v. Faith Christian School Assoc. of Monroe Co., Inc. & Brotherhood Mutual Insurance Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided June 24, 2022

Issues:

Whether substantial competent evidence supported the WCJ’s finding that Claimant’s continuing symptoms are attributable to arthritis that existed prior to Claimant’s work injury?  Whether the employer’s expert failed to address the accepted injury?

Background:

Claimant sustained a work-related injury when she stepped on a ball and twisted her left knee.  Employer issued a medical-only notice of temporary compensation payable, accepting Claimant’s injury as “a left knee strain.”  Employer subsequently filed a Termination Petition, contending that Claimant had fully recovered from her work-related injury as of the date of its independent medical examination (IME).  Employer’s expert concluded that the work-related injury caused a left-knee medial meniscal tear, and thus, the arthroscopic surgery was a work-related surgery. He pointed out that, at the time of her surgery, Claimant had fairly substantial arthritic change in the knee, but that the work injury did not cause any exacerbation of arthritis of a material nature, and that any future treatments that Claimant receives to her left knee would not be attributable to her work-related injury.  The WCJ determined that Employer sustained its burden of proving that Claimant had fully recovered from her work injury.

Holding:

Employer’s Termination Petition was based on its expert’s opinion that Claimant had fully recovered from a left knee medial meniscal tear. The termination of Claimant’s benefits was not based on the grounds that Claimant had a continuing disability that was no longer work related, but on the basis that Claimant’s work-related injury had ceased and, therefore, that she was no longer disabled for purposes of the Act.  The record contains substantial competent evidence to support the WCJ’s finding that Claimant’s continuing left knee pain is attributable to arthritis that existed prior to Claimant’s work injury.   Because the WCJ found that Claimant’s left knee pain was not related to her work injury based on the credited medical evidence, termination of benefits was proper.  The employer’s expert’s opinion that Claimant had fully recovered from a left knee medial meniscal tear sufficiently encompassed the accepted injury, a left knee strain, because it is much more severe, medically speaking, than the accepted injury. Therefore, it was not improper to grant the termination.

Affirmed

JUDICIAL DISCRETION

Kurtis Stover v. Don’s Performance Corner, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 27, 2022

Background:

Claimant was allegedly injured on his first day of work with the employer when, while lowering a transmission, the jack gave out, causing the transmission to fall and momentarily pin his head against the frame of the Jeep. He was able to extricate himself, sustaining a laceration and other injuries.  Claimant went to lunch after this incident and upon his return, employer fired him. Employer’s witness testified that Claimant did not mention any workplace injury until 8 days later, when he called to report a possible concussion and back injury.   Claimant’s expert opined that Claimant’s alleged work injury resulted in an aggravation of a pre-existing lower back condition, although he admitted that he had no knowledge of Claimant’s medical history or any past treatment he had received for chronic back problems; his sole basis for his opinion was Claimant’s self-described medical history and account of the work injury. He conceded that, if Claimant misrepresented the mechanism of injury, he would be compelled to change his opinion on causation.   Employer’s expert conducted a comprehensive review of Claimant’s medical history, as expressed in various hospital records and notes of treatment. He also physically examined Claimant and concluded he possessed normal strength and range of motion for his age, with the exception of some limitation to his back extension.   He opinioned Claimant did not suffer any work injury.  The WCJ concluded that no compensable work injury was sustained.  The claimant filed the appeal pro se.

Issues:

Whether the WCJ’s credibility determinations were reasoned within the meaning of Section 422(a) of the Act?

Holding:

Claimant devoted a substantial portion of his brief to asserting new evidence and an array of new causes of action against Employer.   The Court could not consider new theories of relief or evidence not presented in the proceedings below.  The WCJ’s decision was a reasoned one.  The WCJ explained why he found Claimant incredible. These observations suffice to support the WCJ’s rejection of Claimant’s testimony.   Further, when a witness testifies live before a WCJ, the WCJ may deem that witness credible or incredible based on observations of the witness’s in-person demeanor.

Affirmed

HEARING LOSS
Dennis Carlson v. General Electric Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 28, 2022

Issue:

Whether the WCJ erred in crediting employer’s expert’s opinion that Claimant’s hearing loss was not occupationally induced because it developed in the latter part of his 40-year career with Employer?

Background:

Claimant filed a claim petition alleging that he suffered a compensable hearing loss because of exposure to hazardous occupational noise that caused a binaural hearing loss of more than 10%.   Employer denied that Claimant’s hearing loss was work related, alleging that Claimant had not been exposed to noise levels in excess of 90 decibels, at least 3 days a week, for 40 weeks in a 12-month period.   By decision dated July 27, 2020, the WCJ found that Claimant did not suffer occupationally induced hearing loss. The WCJ credited employer’s expert’s testimony that Claimant’s hearing loss was not occupationally induced because it developed in the latter part of his 40-year career with Employer.

Holding:

The WCJ did not allow an age-related deduction from Claimant’s binaural hearing loss, in contravention of the law.  There is no presumption that Claimant’s binaural hearing loss in excess of 10% was due to his exposure to occupational noise. Claimant had the burden to establish a causal relationship between his hearing loss and his occupational noise exposure. Here, the WCJ accepted Employer’s medical evidence, and rejected Claimant’s medical evidence, and the WCJ is the arbiter of fact and witness credibility.  To meet his burden, a claimant must prove that his hearing loss was caused by his employment. Claimant’s hearing loss did not appear until 27 years after Claimant was exposed to the most hazardous occupational noise while working in Building.   Further, Claimant’s hearing loss accelerated in the last 3 to 5 years of employment when his occupational noise exposure was reduced. The WCJ concluded that Claimant’s hearing loss was not caused by noise exposure at work but did not find an age-related hearing loss.  While Claimant did establish that he had binaural hearing loss, the WCJ rejected Claimant’s causation theory, thereby precluding Claimant from meeting his burden.  The WCJ’s credibility determination was not arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.    The WCJ has exclusive power over questions of credibility and weight to assign the evidence. Substantial evidence in the record supports the WCJ’s findings of fact.

Affirmed

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
6/1/2022-6/30/2022
COVERAGE

Garden State Equity 1 LLC, et al v. United States Liability Insurance Co.
Superior Court of New Jersey, Appellate Division
No. A-1824-20; 2022 WL 1816245
Decided: 6/03/2022

Background:

Plaintiffs, Garden State Equity 1 LLC (Garden State) and New Town Investments, LLC (New Town) appeal from two February 1, 2021 orders which granted defendant, United States Liability Insurance Co. summary judgment.

An employee of one of New Town’s contractors was severely injured while working on one of plaintiff’s properties. The employee filed a demand for workers’ compensation benefits against New Town, which was forwarded to the defendant, and then denied. Defendant cited a policy exclusion (L-500) which applied to all claims and suits by any person or organization for damages because of bodily injury, including damages for loss of services and care, and “any claim under which insured may be held liable under any Workers’ Compensation Law.” The injured employee sued plaintiffs and sought damages for his injuries. Defendant continued to deny coverage. The parties both filed summary judgment motions following discovery.

Plaintiffs argues that L-500 did not apply because there were two more specific exclusions, L-278 and L-532, which they argue were controlling and restored coverage excluded under L-500. Plaintiffs argued that the court should read the policy holistically and that a lay person reading the policy would not know there was no coverage for the worker’s injury. Judge Beacham rejected plaintiff’s arguments and found that L-500 was the more specific exclusion, and dismissed plaintiff’s waiver and estoppel arguments.

Holding:

The court stated that pursuant to the Cypress Point case, courts examine insurance policies to determine whether it provides an initial grant of coverage, and if so, whether any of the exclusions precludes coverage. If an exclusion applies, the court then determines whether an exception to an exclusion applies to restore coverage. The court stated that “[a]n insurance policy will not be deemed ambiguous merely because the parties offer conflicting interpretations.”

The court held that the L-500 exclusion clearly applied to the claims asserted by the injured employee and that the policy was not ambiguous. Therefore, the court held that summary judgment was properly granted in favor of the defendants.

Affirmed

CREDIBILITY DETERMINATIONS

Lindell v. W.H. Industries, Inc.
Superior Court of New Jersey, Appellate Division
No. A-1815-20; 2022 WL 1763624
Decided: 06/01/2022

Background:

Laurie Lindell (petitioner) appeals a decision dismissing her workers’ compensation claim petitions with prejudice. Petitioner worked for W.H. Industries beginning in 1999. She worked in an office with duties related to accounts payable, HR, workers’ compensation, imports and exports, and purchasing. These tasks required use of a calculator, computer, and making notes on paper.

In 2001, petitioner was hit by a car, causing her right hand to go through the windshield. She was diagnosed with right hand reflex sympathetic dystrophy (RSD). In 2009, petitioner filed two claim petitions alleging she had injured her right hand at work in accidents on June 27, 2007 and September 14, 2007. She then filed another claim petition, alleging she injured her right hand at work on August 12, 2009. She stopped working after this incident and alleged the incident aggravated her RSD. Each workplace incident involved the steel door that separated petitioner’s office from “the floor” being opened onto her right hand. Respondent admitted all three accidents arose out of the course of employment and paid all authorized medical bills.

On September 15, 2015, petitioner was hit by a car while riding her bicycle. Despite having an appointment with her doctor, Dr. Freedman, 8 days later, she did not tell him about the bike accident. In 2016, petitioner had a cervical fusion and a lumbar surgery. Again, she did not tell Dr. Freedman about these surgeries even though she saw him 8 days after the neck surgery and the day before the lumbar surgery. Dr. Freedman concluded that petitioner on numerous occasions had filled prescriptions for controlled substances from other providers while he was treating her, and had he known about the other prescriptions, he would have reduced or eliminated the medications that he prescribed.

Dr. Freedman was called as a witness, as well as petitioner’s expert, neurologist Stephen Dane. Dr. Dane testified that when he saw the petitioner in 2017, she did not tell him about the surgeries she had after the bike accident, and many of her complaints could have been a result of the cervical fusion. Respondent used a neurologist, Charles Effron, as its expert. Dr. Effron concluded that petitioner did not have RSD and there was no permanent disability as a result of the 2009 work injury.

The compensation judge dismissed all three claim petitions, finding the petitioner not credible, and going into great detail about her reasons for that determination. The judge found petitioner’s failure to disclose the bike accident to Drs. Freedman, Dane, and Effron, coupled with lying on the stand about never having prescriptions filled by doctors other than Dr. Freedman irreparably damaged petitioner’s credibility.

The judge dismissed the claim petitions regarding the 2007 work incidents because the entirety of petitioner’s testimony was about her functional status after the 2009 accident, and all of the permanency evaluations took place after the 2009 accident. The judge dismissed the claim petition regarding the 2009 accident, stating that not one doctor opined petitioner was totally disabled, and she presented no expert testimony that she was incapable of working. Petitioner appealed.

Holding:

The court held that because the judge’s decision was supported by sufficient credible evidence present in the record, it affirmed. The court stated it would not disregard the judge’s assessment of petitioner’s credibility, especially in a case in which the treating doctor and expert witness relied extensively on petitioner’s subjective complaints.

The court stated that petitioner was really arguing that because respondent paid her medical bills in connection with the work accidents and made temporary disability payments after the 2009 work accident, the judge had to determine that she was partially permanently disabled as a result of those accidents. The court held that all medical treatment provided under the statute is without prejudice and does not mean there is a partial permanent disability.

Affirmed

ABUSE OF DISCRETION

Ripp v. County of Hudson
Superior Court of New Jersey, Appellate Division
No. A-2972-20; 2022 WL 1815296
Decided: 6/03/2022

Background:

Louis Ripp injured his back in a work accident on February 11, 2013 while he worked for the County of Hudson as an assistant chief engineer/boiler operator. Ripp applied for workers’ compensation benefits, and received temporary disability benefits and medical benefits, before he was declared permanently disabled in 2016.

On January 26, 2021, the judge of workers’ compensation (JWC) entered an order approving a settlement of $365,100. It is undisputed that the County was to pay him $173,480 within 60 days of the entry of the Order. Ripp filed a motion to enforce the Order, as the County had not made the required payments. Ripp did receive the full payment amount due to him on April 12, 2021, sixteen days late. Ripp requested simple interest on the payment and an additional 25% assessment for unreasonable payment delay. The JWC ordered the County to pay an additional $43,370 within 60 days finding that the delay was unreasonable. The County now argues that the JWC abused her discretion in imposing an excessive assessment under the circumstances.

Holding:

The court held that the legislature in N.J.S.A. 34:15-28.2 chose not to specify what is a presumptively unreasonable delay in payment of settlement proceeds under an order entered by a JWC. The court then stated that the legislature intended to leave to the JWC’s discretion what constituted an unreasonable payment delay by leaving it undefined in the statute.

The court held that it was legal error for the JWC to consider litigation delays in deciding an appropriate remedy under the statute as no payments were due to Ripp until the JWC entered the order. The County did not dispute that it failed to pay Ripp in a timely fashion, but gave various excuses for that delay, which the JWC considered, and to some degree accepted as reasonable. Nevertheless, the JWC imposed the maximum statutory penalty for a delay of 16 days.

The court therefore concluded that the JWC mistakenly exercised her discretion in this matter, and they vacated the order and remanded it for reconsideration of an appropriate additional assessment for the minimal delay.

Reversed and remanded

PA & NJ – CASE SUMMARIES 5/18/2022 to 6/1/2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES
5/18/2022 – 6/06/2022
 JUDICIAL DISCRETION

 

Judith Carbonell-Caban v. Elwyn, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 18, 2022

Issues:

Whether the WCJ erred in finding the Claimant fully recovered from her work injury, in not awarding Claimant wage loss benefits beyond the date of Employer’s IME, in not dismissing the suspension petition as moot, and in not imposing penalties?

Background:

Claimant sustained a work injury as the result of a motor vehicle accident (MVA) that occurred in the course of Claimant’s employment as a service coordinator for Employer. Employer initially accepted liability for the work injury through issuance of a medical-only Notice of Temporary Compensation Payable (NTCP), which described Claimant’s work injury as a strain to her right wrist, low back, and neck.  A second NTCP filed on May 13, 2015, indicated that Claimant would receive total disability benefits.  Thereafter, Employer denied liability for Claimant’s work injury through a Notice Stopping Temporary Compensation (NSTC) and a Notice of Compensation Denial (NCD).  The NCD described Claimant’s injury solely as a right wrist strain and contested the extent of Employer’s liability for Claimant’s work injury and asserted that she had not suffered any wage loss due to the work injury; however, Employer would continue to pay the cost of any reasonable and necessary medical treatment related to the work injury.  Claimant filed a petition seeking reinstatement of benefits under the Act, an amendment to the description of her work injury, and the imposition of penalties for Employer’s alleged violations of the Act.  Employer filed a petition to terminate Claimant’s benefits, based on the opinion that Claimant had fully recovered from her work injury.  Employer also filed a separate petition requesting an immediate suspension of Claimant’s benefits following her receipt of a third-party recovery from the other driver involved in the MVA.

Holding:

Claimant essentially argues that her medical expert was more credible than Employer’s. It is not for Claimant to determine which expert is credible; that function is performed by the WCJ in her role as the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight. Claimant provided no legitimate basis to overturn the WCJ’s credibility determinations.  A medical expert’s testimony is unequivocal if, after providing a foundation, he testifies that he believes or thinks the facts exist, and the result in question came from the assigned cause. The law does not require every utterance from a medical expert to be certain, positive, and without reservation or exception. Employer’s expert’s opinions were not incompetent.  His recitation of the mechanism of injury is entirely consistent with Claimant’s testimony that she was injured when she was hit from behind.  As to the discrepancy between Claimant’s pain symptoms and the IME findings, the IME doctor testified that the Claimant’s presentation was “out of proportion” to those findings. He was unable to correlate Claimant’s subjective complaints with his objective findings. While the expert agreed that he did not discuss the particulars of Claimant’s pre-injury job beyond the driving aspect of her duties, he unequivocally opined that Claimant required no further care or treatment for her work injury, which consisted of strains to Claimant’s lumbar and cervical spine and her right wrist.  Employer’s Expert was only required to recognize the accepted work injury, not any and all injuries Claimant alleged she sustained. While Employer’s motivation for seeking a suspension of Claimant’s benefits was satisfied upon receipt of the proceeds from her third-party settlement, we agree with the Board that the WCJ’s decision to grant the suspension petition amounted to harmless error, in light of the simultaneous termination of Claimant’s benefits. There would be no benefit in pursuing a remand, which will only serve to unnecessarily prolong the instant litigation.   As to its alleged failure to pay Claimant’s wage loss benefits, Employer explicitly contested the extent of its liability and the extent of Claimant’s disability. The additional periods for which the WCJ found Employer liable for the payment of wage loss benefits occurred several months after Employer contested the existence of any work injury beyond a right wrist strain.   In light of the above, the WCJ did not abuse her discretion in denying Claimant’s request for penalties.

Affirmed 

Ken Walton General Contractor v. Patrick Donahue (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 23, 2022

Issues:

Whether Claimant was the employer’s employee suffered a work-related injury? Whether the Interlocutory Order was a reasoned decision?  Whether the WCJ erred in awarding a penalty and counsel fees for an unreasonable contest?

Background:

According to Claimant, August 8, 2017 was his first day of work with Employer. Before WCJ McCormick, Claimant testified that Ken Walton, owner of Employer (Walton), hired him in a phone conversation the day before. Claimant maintained Walton committed to hiring him “full time,” with 40 hours of work per week at a rate of $15.00 per hour. Claimant was to report to Walton’s home the following day, and he and Walton’s other employees would then travel to a job site for work on a demolition project.  Walton flatly contradicted Claimant’s account of the August 7, 2017 phone call, stressing that, while he did ask Claimant to visit his home on the 8th, this was only to allow Claimant to fill out a job application and work one or two days on a trial basis. Walton testified his policy is to have potential employees accompany him to a job site so he can assess their “skill level” and whether they will “fit” with his team. In Walton’s view, Claimant was injured before that assessment could take place, so he was never employed by Employer. Shortly after Claimant arrived at Walton’s home, he injured himself while unloading a children’s playhouse from Walton’s truck. The parties dispute why Claimant was unloading the playhouse. Claimant maintains Walton ordered him to unload the playhouse to make room for other work-related items in the truck bed. Conversely, Walton testified that Claimant volunteered to unload the playhouse without any direction to do so.  Claimant filed the Claim Petition, seeking full disability benefits under the Act.  Claimant filed a penalty petition based on Employer’s alleged failure to file initial paperwork disputing or acquiescing to the Claim Petition within 21 days.  WCJ Beck issued a final decision granting the Claim and Penalty Petitions. WCJ Beck simply “deferred” to WCJ McCormick’s conclusions as to Claimant’s employment status and the work-related injury, as Judge McCormick had the opportunity to view Walton’s testimony live and evaluate his demeanor and deportment.  However, WCJ Beck found Claimant could only reasonably expect to work 28.37 hours per week, based on Employer’s wage records. Additionally, the WCJ found Claimant was totally disabled until he returned to work part-time. After that, Claimant was partially disabled until September 6, 2018, the date of employer’s IME, by which time he was fully recovered and WCJ Beck terminated all benefits as of this date.  The WCJ ordered Employer to pay 20% of all indemnity benefits, plus interest as a penalty for not filing a Notice of Compensation Denial within 21 days of Claimant’s injury. WCJ Beck also awarded unreasonable contest attorney’s fees to Claimant as Employer’s contest was unreasonable until the date of the IME. Prior to that, in WCJ Beck’s view, Employer defended the claim for benefits based upon the asserted lack of an employment relationship.

Holding:

WCJ Beck and the Board erred in deferring to WCJ McCormick’s Interlocutory Order, as it was not a reasoned decision.  WCJ McCormick’s Interlocutory Order fails to make crucial findings of fact on all essential issues necessary for review and does not provide a reasonable explanation for determinations of witness credibility. Finally, this order fails to include an explanation of the rationale for the decision.  The Interlocutory Order is not a reasoned decision because it offers nothing more than bald conclusions on the legal issues of employment relationship and work-related injury.  The Board erroneously affirmed the WCJ’s decision to assess penalties and unreasonable contest attorney’s fees against Employer.  The imposition of penalties and fixing the amount thereof are matters committed to the discretion of the WCJ. That discretion, however, is not without limits. Where the WCJ “reaches a manifestly unreasonable result,” we need not defer to his discretionary determination. WCJ Beck’s penalty award is manifestly unreasonable. Employer had until August 29, 2017 to send a Notice of Compensation Denial to Claimant and the Bureau. While the Employer filed its Notice of Compensation Denial 38 days past the deadline, Employer filed an Answer to the Claim Petition on September 26, 2017, which presented the basis for Employer’s denial of compensation in essentially the same manner as a Notice of Compensation Denial.   Furthermore, Employer’s Answer indicated its “first notice” of Claimant’s view that he had suffered a compensable injury was the filing of the Claim Petition on September 6, 2017. Under these circumstances, no discernible prejudice to Claimant resulted from Employer’s delay in filing the Notice of Compensation Denial. Employer’s untimely filing, therefore, is at worst a technical violation of the Act. A penalty is not required every time a violation is established. This penalty is grossly disproportionate to Employer’s violation, which caused no prejudice to Claimant, who had already filed the Claim Petition by the time he received the Notice of Compensation Denial. As such, WCJ Beck’s penalty award was “manifestly unreasonable” and thus an abuse of discretion.  WCJ Beck’s basis for awarding attorney’s fees to Claimant fails on multiple levels. Employer legitimately contested issues other than the existence of an employment relationship between Claimant and Employer. WCJ Beck actually ruled in Employer’s favor on the disputed fact issues of Claimant’s average weekly wage and whether he is permanently disabled.  Furthermore, even if Employer’s contest had been exclusively focused on the issue of employment relationship, WCJ Beck told the parties at the November 16, 2018 hearing that he would entertain additional argument on this issue and any other issue that was previously determined via the Interlocutory Order. In taking up this invitation, Employer cannot have presented an “unreasonable contest” justifying the award of attorney’s fees.

Reversed in part, vacated, and remanded
Edward J. Stanis v. WCAB (Brand Energy Services, Inc., Superior Scaffold, Stone & Webster, And A.T. Chadwick Services)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 23, 2022

Issue:

Whether the Claimant met his burden of proving that he sustained a disabling work-related injury?

Background:

Claimant filed a claim petition against his purported employer, Brand Energy, alleging he sustained injuries during the course and scope of employment as a union carpenter.  Claimant thereafter filed a penalty petition, averring that Brand Energy violated the Act, by failing to issue the proper Bureau of Workers’ Compensation notice either accepting or denying liability for the alleged work injury.  Brand Energy filed joinder petitions, against three other employers.   The WCJ determined that Claimant’s alleged work incident did not occur and, therefore, he did not sustain any work-related injuries. The WCJ also determined that Claimant failed to establish that Brand Energy violated the Act.

Holding:

It is the Claimant who bears the burden of proving all elements necessary to support an award of workers’ compensation benefits. Where the causal relationship between the work incident and the injury is not obvious, unequivocal medical evidence is necessary to establish that relationship. Moreover, the WCJ, as factfinder, has complete authority over questions of witness credibility and evidentiary weight and is empowered to resolve conflicts in the evidence. As there was nothing to indicate that the WCJ’s credibility determinations were made arbitrarily or capriciously, and the Claimant failed to adduce credible evidence to establish his entitlement to workers’ compensation benefits the WCJ’s determination must be upheld.   The Court also reviewed the standard for a “reasoned decision” noting that for witnesses testifying before the WCJ, it is appropriate for the WCJ to base his determination solely upon the demeanor of the witnesses, and a mere conclusion as to which witnesses were credible is sufficient for a reasoned decision. When witnesses testify only by deposition, the WCJ must articulate an actual objective basis for the credibility determination.

Affirmed

Ricko A. Callender v. David Elliot Poultry Farm Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 24, 2022

Issue:

Whether the Board committed reversible error by refusing to consider Claimant’s Social Security Disability Decision? Whether the Board erred by refusing to accept that the facts of this case establish the existence of a work injury?

Background:

Claimant worked as a truck driver, which entailed loading, unloading, and delivering boxes of chicken weighing between 80 to 90 pounds. Claimant filed a claim petition alleging he sustained injuries while making a delivery for Employer. The WCJ denied the claim petition. The Board affirmed.

Holding:

The Claimant’s appeal is without merit.  The SSA’s decision declaring Claimant disabled was not made part of the certified record before the WCJ, the Court could not consider it. Also, a determination of disability by the SSA is not relevant to prove whether a Claimant’s disability resulted from an alleged work-related injury.  It is the Claimant who bears the burden of establishing his right to compensation. Here, the WCJ concluded that Claimant failed to meet his burden of proving a work injury occurred at all.  The WCJ did not find Claimant to be credible. Moreover, the WCJ found no unequivocal medical testimony that Claimant’s medical impairments resulted from his work. The WCJ deemed the testimony of Claimant’s expert credible but not persuasive, in light of his reliance upon the inconsistent history provided by Claimant, and because this expert had not reviewed Claimant’s medical records from several other doctors with whom Claimant had treated.   WCJ, as the ultimate fact finder, is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part.

Affirmed

 Michelle Nestman v. Gold Key Country Club, Inc. & Cincinnati Ins. Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 27, 2022

Issue:

Whether the WCJ’s decision was based on incompetent testimony from Employer’s medical expert, allegedly because he did not accept and employ the WCJ’s 2018 amended description of Claimant’s work injury, and did not opine that Claimant had fully recovered from the injury as described in the WCJ’s 2018 decision?

Background:

Claimant sustained a work injury to her right index finger in 2014, which was accepted as a right index finger laceration. In 2018, a WCJ granted Claimant’s petition to amend her work injury description to include neuralgia secondary to a crush injury to her right index finger. In 2019, Claimant filed a petition for specific loss benefits, alleging that she had effectively lost the use of her right index finger. Employer filed a termination petition contending that Claimant had fully recovered from her work injury.  Employer had their expert from the previous litigation reexamine Claimant in October 2019.  In forming his opinion following the October 2019 examination and records review, employer’s expert now assumed that Claimant’s work injury included neuralgia as described in the amendment granted in the 2018 WCJ opinion. (In previous litigation this expert rejected the presence of neuralgia).  He then opined that Claimant had fully recovered from her work injury, found no evidence of any neuralgia pattern, and posited that Claimant had recovered from her injury.  The WCJ found employer’s expert testimony more credible than that of Claimant and her medical expert. The WCJ dismissed Claimant’s petition for specific loss benefits and granted Employer’s termination petition.

Holding:

Employer’s expert credibly testified that he was willing to accept the work injury description found in the WCJ’s 2018 Decision and Order, and that there was no sign of it when he examined Claimant in October 2019.  He reviewed the WCJ’s 2018 decision amending the description of Claimant’s work injury to include neuralgia. Further, the expert was directed to assume, in giving his medical opinion, that the WCJ’s 2018 decision concluded Claimant’s original work injury in 2014 included “severe neuralgia of the right hand and index finger.” The expert’s testimony constituted substantial evidence in support of the WCJ’s decision to grant Employer’s termination petition.

Affirmed

Jennifer WEARY-IRVIN v. U.S. FOODS (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 27, 2022

Issues:

Whether the injuries to “multiple body parts” accepted by Employer in the NCP should include post-concussive syndrome?   Whether the evidence supports the granting of the Termination Petition and the failure to include hearing loss as related to her work injury?

Background:

Claimant was injured in a motor vehicle accident while delivering product to a customer. Employer issued a Notice of Temporary Compensation Payable (NTCP) accepting unspecified injuries to multiple body parts. The NTCP converted to a Notice of Compensation Payable (NCP) by operation of law.   Based on the results of an independent medical examination (IME), Employer filed a Termination Petition, alleging that Claimant was able to return to work. Claimant filed a Review Petition, seeking to amend the description of her accepted work injury to include traumatic monaural hearing loss.  The WCJ granted the Termination Petition.  Regarding the Review Petition, the WCJ found no substantial evidence that Claimant’s hearing loss was related to her motor vehicle accident and concluded that she had failed to demonstrate entitlement to amend the description of her accepted work injuries.

Holding:

There was no indication that the WCJ narrowed the scope of accepted injuries to Claimant. Rather, the WCJ appropriately considered evidence of Claimant’s concussion and post-concussive syndrome within the framework of injuries acknowledged (in broad terms) by the NCP. The WCJ recognized that Claimant’s initial diagnoses included “concussion” accompanied by “headaches, fogginess, light sensitivity, dizziness, nausea, cognitive difficulties and emotional lability.” Thus, the WCJ viewed this injury as within the scope of injuries acknowledged by the NCP.   However, the WCJ specifically credited the medical opinion of employer’s expert over that of Claimant’s expert, finding that Claimant was fully recovered from all issues associated with concussion and post-concussive syndrome.  Further, the WCJ’s findings are neither arbitrary nor capricious and cannot be reweighed on appeal. As for the Claimant’s Review Petition, there is no assertion by Claimant that the initial NCP was inaccurate or in need of correction.  Because Claimant did not seek to correct a material defect in the original NCP but rather sought to amend the description of her injuries to reflect a subsequently arising medical condition, and because there was no obvious relationship between Claimant’s hearing loss and her accident, the WCJ properly placed the burden on Claimant to prove that her hearing loss was related to her motor vehicle accident.

Affirmed

Bruce Sephes v. Nationwide Housing Management and UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 1, 2022

Issue:

Whether the WCJ’s decision to terminate his benefits is supported by substantial and competent evidence and whether the WCJ’s decision issued a reasoned decision?

Background:

Claimant filed a claim petition stating that he sustained a gunshot wound while working for Employer as a maintenance technician. Claimant also filed a penalty petition claiming that Employer was notified of his injuries and failed to accept or deny his claim within 21 days in accordance with the Act.  Following receipt of documentation that Employer did not have workers’ compensation coverage, Claimant filed a notice of claim against the UEGF raising the identical allegations made against Employer in the claim petition.   The WCJ concluded that Claimant met his burden of proving that he sustained a totally disabling work injury while working for Employer, and that Claimant had fully recovered from all of his injuries as of September 19, 2019.  The WCJ further determined that Employer was primarily liable to Claimant and that based on Employer’s uninsured status, the UEGF was secondarily liable to Claimant for all payments should Employer default on its obligations. The WCJ then terminated Claimant’s benefits effective September 19, 2019.

Holding:

Viewing the evidence in the light most favorable to Employer, as the party that prevailed before the WCJ, particularly the testimony of Dr. Snyder, the WCJ’s decision was based on substantial and competent evidence of record. The WCJ, as the ultimate factfinder, is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Further, determinations of credibility and evidentiary weight are within the WCJ’s exclusive province.  The WCJ fully explained her reasons for accepting the testimony of employer’s expert over that of Claimant and, employer’s expert explained that Claimant’s symptoms were no longer work related.

Affirmed

IMPAIRMENT RATING EVALUATIONS

Christopher Fischer v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 25, 2022

Issue:

Whether Act 111 is unconstitutional and violates the injured workers’ vested rights by crediting Employer with any weeks of total disability paid before Act 111 was enacted?

Background:

Claimant suffered a work-related injury in the course and scope of his employment with Employer. Employer issued a Notice of Compensation Payable accepting the work injury. On June 18, 2020, Employer filed the Modification Petition seeking to have Claimant’s benefits changed from temporary total disability to temporary partial disability based upon an IRE performed on June 3, 2020. Claimant did not offer any medical evidence to challenge the impairment rating. Instead, Claimant argued the Modification Petition should be denied because Claimant had yet to receive 104 weeks of total disability as required by Act 111.

Holding:

Act 111 plainly provides for credit of weeks of temporary total and partial disability benefits previously paid and that the General Assembly explicitly provided the credit provisions were to be given retroactive effect. Claimant’s vested rights’ have not been abrogated by Act 111 because there are reasonable expectations under the Act that benefits may change. Act 111 did not automatically strip a Claimant of any rights; rather, Act 111 provided employers with a mechanism to modify a Claimant’s disability status from total to partial.

Affirmed

Joanne Sobol v. Select Medical Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 18, 2022

Issue:

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

Background:

Claimant sustained a work injury.  Employer acknowledged liability for the work injury.  Following a January 22, 2020 IRE performed in accordance with the 6th Edition (second printing) of the AMA Guides, Employer filed a petition to modify Claimant’s total disability benefits, pursuant to Section 306(a.3) of the Act.

Holding:

It was clear that the General Assembly intended for the 104-week and credit weeks provisions of Act 111 to be given retroactive effect.  Also, the Claimant’s vested rights were not affected by the legislation, because there are reasonable expectations under the Act that benefits may change.

Affirmed

 

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
5/12/2022 – 5/31/2022
 DISABILITY – SPECIFIC V. GENERAL JOB DUTIES

Giles v. Board of Trustees, Teachers’ Pension and Annuity Fund
Superior Court of New Jersey, Appellate Division
No. A-0640-20; 2022 WL 1580869
Decided: 5/19/2022

Background:

Appellant, Sharon Giles, appealed from an October 6, 2020 final agency decision by the Board of Trustees (Board) of the Teachers’ Pension and Annuity Fund denying her application for ordinary disability retirement benefits.

Giles was a public-school teacher for ten years in East Orange. On October 27, 2014, Giles fell off a chair while attempting to hang materials in her classroom, injuring her back. On February 4, 2015, Giles applied for ordinary disability retirement benefits. She resigned her teaching position on July 1, 2015. On August 6, 2015, the Board denied Giles’s request for ordinary disability retirement benefits, concluding that she was not totally and permanently disabled from performing her regular and assigned duty as a teacher. Giles appealed, and the matter was referred to an administrative law judge (ALJ).

At the hearing, Giles testified, as did her medical expert, Dr. David Weiss, and the Board’s medical expert, Dr. Arnold Berman. Giles testified she taught a course on the second floor of the school, requiring her to climb stairs several times per day to perform her job assignments. She also had to stand for 5-6 hours and bend while teaching. Dr. Weiss testified that Giles could not perform her duties as a teacher, Dr. Berman reached the opposite conclusion, and stated her low back pain was due to age-related degenerative changes in her lumbar spine.

The ALJ reversed the denial of Giles’s application for ordinary retirement benefits, holding that the October 2014 fall resulted in her injuring her back, which left her totally and permanently disabled from working as a teacher or in any other capacity. The Board filed exceptions and modified the ALJ’s findings of fact related to Giles’s job duties and rejected the determination that she was permanently and totally disabled from employment as a teacher. On October 6, 2020, the Board determined Giles was not eligible for ordinary disability benefits, and the ALJ confused how she specifically taught with the general requirements of being a teacher. They further determined that the specific problems may have been resolved by accommodations, but Giles did not ask for any accommodations. Additionally, the majority of the specific tasks she stated she could not perform were not in her official job description but particular to her specific assignments, and therefore it cannot be said that she is totally and permanently disabled from her general employment as a teacher. Giles appealed, arguing the Board’s decision lacks fair support in the record, amounts to an abuse of discretion, and is arbitrary and capricious.

Holding:

The court stated that it accords deference to the Board’s interpretation of a statute it is charged with enforcing. The court further found that the record had insufficient fact findings to determine whether Giles is totally and permanently disabled from generally performing her job as a teacher as opposed to performing specific and discrete teaching tasks. The court therefore remanded to the Board to reconcile Giles’s inability to perform certain aspects of her teaching job with responsibilities and general duties of a teacher as described in the District’s job description, which also included a category called “other duties which may be assigned by the administrator.”

Remanded

SUMMARY JUDGMENT

Stonnell v. State of New Jersey, et al.
Superior Court of New Jersey, Appellate Division
No. A-3005-18; 2022 WL 1617122
Decided: 5/23/2022

Background:

Appellant, Michael Stonnell was a New Jersey State Police (NJSP) trooper from 1993 until he retired on January 1, 2018. Mr. Stonnell filed a complaint on January 29, 2015, against the State of New Jersey, NJSP, and several individual State Police officers, alleging that they violated the New Jersey Law Against Discrimination (LAD) by creating a hostile work environment and failing to promote him because of his “disability/handicap and/or age.” He also alleged that they violated the Workers’ Compensation Law (WCL) by failing to promote him in retaliation for him asserting rights under the WCL.

After discovery, defendants moved for, and were granted, summary judgment. The judge concluded that plaintiff failed to establish that defendants’ conduct was related to his disability or that it was extreme enough to amount to a change in the terms and conditions of his employment. With regard to the retaliation claim, the judge found that plaintiff suffered no adverse job actions by defendants. The judge did not analyze the LAD claim that defendants failed to promote plaintiff based on his disability.

Mr. Stonnell appealed, stating that the motion record contained sufficient evidence of material factual disputes foreclosing summary judgment on his employment discrimination, hostile work environment, and retaliation claims.

Plaintiff filed two workers’ compensation claims in March 2011. He eventually returned to work on light duty in early 2012. In 2013, he was diagnosed with skin cancer and underwent chemotherapy. Plaintiff took a 3-week medical leave of absence and his doctor recommended that he no longer work in a “marine environment.” Plaintiff was transferred to a unit in West Trenton, which was far from his home. He acknowledged that he was not subject to a hostile work environment once he was transferred. In July 2014, plaintiff blew out his knee and went on stress leave until his retirement in 2018.

Plaintiff alleged the failure to promote claim began in 2011 when he alleges was not promoted because of his physical ailments. However, plaintiff was recommended for promotion in November 2011. Claimant’s supervisor recommended him for promotion in March 2012, though he expressed dissatisfaction with plaintiff’s absences. In December 2013 and December 2014, plaintiff advanced another level to promotional tier two, but he was ineligible for a promotion because of a pending internal investigation initiated in September 2013 because he did not contact the Medical Services Unit regarding leave for treatment for his skin cancer after being directly ordered to do so.

Holding:

With respect to the failure to promote, plaintiff must show that he was disabled or perceived to be disabled within the meaning of the LAD, that he was qualified for the position or rank, that he was denied promotion, and that another person with “similar or lesser qualifications achieved the rank or position.” In order to prove a hostile work environment, a plaintiff has to show: 1) that he is in a protected class; 2) that he was subjected to conduct that would not have occurred but for that protected status; and 3) it was severe or pervasive enough to alter the conditions of employment. In order to state a prima facie case of retaliation under the LAD, a plaintiff must show that: 1) he was engaged in a protected activity known to defendant; 2) he was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two.

Regarding the “failure to promote” claim, it was limited to a denial of a promotion after January 28, 2013 because of his skin cancer and necessary treatments for that condition. The court held that this claim was properly dismissed. The court held that plaintiff was required to produce some evidence that he was not promoted, but someone of similar or lesser qualifications achieved the rank or position, which he failed to do. The court further held that even if he had met that standard, the defendants clearly articulated a legitimate, nondiscriminatory reason for their actions, that plaintiff was not eligible for promotion while under investigation by internal affairs. The burden then shifts to the employee to prove that the reason articulated by the employer was a pretext for discrimination, which plaintiff was unable to do.

Regarding the “hostile work environment” claim, the court held that this was properly dismissed. The court held that plaintiff’s generalized accusations against several officers, even if corroborated, and of disparate levels of attention directed at him for use of sick time, medical leave, stress leave, or workers’ compensation claims were not severe and pervasive conduct in violation of the law. Further, t

Regarding the “retaliation” claim, plaintiff was required to demonstrate that he engaged in a protected activity under the LAD known to defendants and they retaliated against him between January 29, 2013 and the filing of his complaint. The court held that though plaintiff never made a complaint to the appropriate NJSP personnel about a violation of the LAD, plaintiff did seek leave for treatment of his skin cancer in the summer of 2013 as an accommodation for his disability, so defendants knew of that request at some point because it triggered an internal affairs investigation. The court agreed with the motion judge that plaintiff suffered no adverse employment action in retaliation for his leave request. Plaintiff suffered no reduction in rank or pay after his transfer, and the only adverse consequence of the transfer is that it was farther from his house. Further, the transfer was initiated by plaintiff’s doctor’s recommendation that he no longer work outdoors. Therefore, plaintiff’s claim that the transfer was punishment is not sufficient to establish a material disputed fact demonstrating that defendants’ legitimate reason was merely a pretext for the underlying discriminatory motive.

Affirmed

PA & NJ – CASE SUMMARIES 4/16/2022 to 5/15/2022

CASE SUMMARIES 

4/16/2022 – 5/15/2022

 PENNSYLVANIA WORKERS’ COMPENSATION

 IMPAIRMENT RATING EVALUATIONS

Donna Cutter v. Commonwealth Of Pennsylvania (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 27, 2022

Issue:

Can benefits under the WC Act be modified under an IRE, where the claimant has only been receiving benefits under Act 534 for her work injury?

Background:

Claimant sustained a work injury while in the course of her employment as a youth development aide at the South Mountain Secure Treatment Facility (Facility) operated by DHS (Employer), following an assault by a resident of the Facility. Employer accepted Claimant’s work injury through issuance of a notice of compensation payable (NCP), which acknowledged that Claimant sustained various injuries.  The NCP acknowledged that Claimant would receive Act 534 benefits in lieu of compensation under the WC Act.

Holding:

Act 534 benefits are similar to those provided under what is commonly known as the Heart and Lung Act (HLA), which provides full-salary benefits to police officers, firefighters, and other public safety employees injured on the job. Like Section 1(a) of Act 534, Section 1(a) of the HLA anticipates that an injured employee may seek benefits under both the HLA and the WC Act; however, the Commonwealth is entitled to recoup the amount of disability benefits a claimant receives under the WC Act. 53 P.S. § 637(a). Given the similarities in purpose and construction between the HLA and Act 534, the analysis of one statutory provision may be applied to the other.  When a self-insured employer begins paying benefits under the HLA pursuant to an NCP, two-thirds of the amount paid automatically represents the payment of workers’ compensation benefits under the WC Act.  A self-insured employer paying a claimant’s full salary under the HLA or Act 534 would “hardly reimburse itself for that portion of a claimant’s benefits that represents benefits under the [WC] Act.”   Employer is self-insured and therefore two-thirds of Claimant’s Act 534 benefits represents the payment of total disability benefits under the WC Act. Therefore, Claimant’s receipt of Act 534 benefits for a period exceeding 104 weeks satisfies the prerequisite necessary for Employer to seek an IRE under Section 306(a.3) of the WC Act.

Affirmed

Joseph C. Hazzouri V. Pennsylvania Turnpike Commission (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Filed April 28, 2022

Issue:

Whether the retroactive application of Act 111’s IRE mechanism to injuries occurring before its effective date is unconstitutional?

Background:

Claimant sustained a work-related injury to his back.  Sometime later the Employer filed a Modification Petition based upon an IRE performed on April 22, 2019. By decision and order circulated on November 25, 2020, the WCJ granted Employer’s Modification Petition. The WCJ concluded that Employer had met its burden of proving that Claimant had an impairment rating of less than 35% based upon the IRE.   Claimant challenged the retroactive application of Act 111’s IRE provisions to Claimant’s work injury as unconstitutional

Holding:

Act 111 did not affect the claimant’s vested rights because it did not impose new legal burdens on a past transaction or occurrence or otherwise change the status of a claimant’s workers’ compensation benefits. Rather, it merely established a means for an employer to seek a modification of a claimant’s benefits going forward.   Act 111 did not automatically change claimant’s disability status or otherwise deprive him of vested rights under the Act. Rather, Act 111 simply provided a mechanism for Employer to pursue a change in Claimant’s disability status by requiring medical evidence that Claimant’s whole-body impairment was less than 35%. Because Claimant’s IRE occurred after the enactment of Act 111, it did not constitute a retroactive application of the law. Because Claimant already received 104 weeks of total disability benefits, Employer was permitted, under Section 306(a.3)(1), to seek a new IRE, a modification based on its results, and a credit for disability benefits paid.

Affirmed

 Kelly Gooden v. School District of Philadelphia (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

Issue:

Whether it was an error of law to grant the Modification Petition when Section 306(a.3) of the Workers’ Compensation Act (Act) requires that IREs be performed pursuant to the “6th edition (second printing April 2009)” of the Guides and there was no evidence as to which 6th edition was utilized?

Background:

The WCJ and Board found Claimant’s benefits should be modified from temporary total disability to temporary partial disability based upon an impairment rating evaluation (IRE) performed using the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides).

Holding:

Because the plain language of the Act specifies the “6th edition (second printing April 2009)” of the Guides be utilized, the court was constrained to vacate the Board’s Order and remand with instructions for the Board to further remand to the WCJ for evidence as to which version of the 6th edition of the Guides was used by the physician.  The only evidence of record is the IRE physician’s testimony and report that shows the 6th edition was used. Because there is no evidence that the “second printing April 2009” version was used by Dr. Walsh, the court vacated the Board’s Order and remand this matter for further evidence as to which version of the 6th edition of the Guides was utilized.

Remanded

John LYNCH v. COMMONWEALTH of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Reported opinion

Decided April 29, 2022

 Issue:

Whether Claimant’s receipt of full salary benefits under Act 534 constitutes receipt of “total disability compensation” under Section 306(a) of the WC Act for purposes of triggering Act 111’s IRE mechanism?

Background:

Claimant sustained the first work-related injury in 2012.  Claimant sustained a second work-related injury in 2014. In 2020 the Employer filed two Modification Petitions under Act 111 — one regarding the 2012 Injury and the other regarding the 2014 Injury — seeking to change Claimant’s disability status from total to partial based on the results of an IRE performed on June 2, 2020, which yielded a whole-body impairment rating of less than 35%.    The Claimant receives an amount equal to his full salary under Act 534, the Insurer pays workers’ compensation [TTD] benefits to Employer, which then adds sufficient amounts to the workers’ compensation benefits to bring the sum up to the level of the Act 534 benefits, and the total is then paid to Claimant. Accordingly, Claimant receives workers’ compensation [TTD] benefits plus additional amounts added to equal his Act 534 rate.

 Holding:

Act 534 was passed by the General Assembly to assure that state workers in positions at institutions considered more dangerous than normal would receive full salary during periods of work-related disability. Pursuant to Act 534, the Commonwealth employer pays a “full salary” to any employee “injured during the course of his employment” by a person confined in one of the above-mentioned facilities “until the disability arising therefrom no longer prevents his return as an employee of such department, board or institution at a salary equal to that earned by him at the time of his injury.”  Act 534 benefits are “intended to supplement, not replace, workers’ compensation and occupational disease benefits.”   Employer here is self-insured, and, Employer accepted Claimant’s 2014 Injury and agreed to reinstate Claimant’s TTD benefits effective January 27, 2016, for which it paid Claimant Act 534 benefits. The claimant received Act 534 benefits for more than 104 weeks prior to the June 2, 2020 IRE. As with HLA benefits, two-thirds of the Act 534 payments that Claimant received represents total disability benefits under the WC Act as a matter of law. Because Employer made payments as mandated by the WC Act, Employer is afforded all rights thereunder, including the right to seek modification of Claimant’s workers’ compensation benefits under Section 306(a.3) of the Act. To conclude otherwise and deny the Employer the ability to seek a modification of benefits under Act 111 simply because Claimant was entitled to additional benefits under a separate statutory provision would be contrary to the law.

Affirmed

George White v. City of Philadelphia (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

Issue:

Where a Claimant does not challenge a 2010, IRE until after Protz II was decided, is his right to reinstatement of total disability limited to the date on which he filed his reinstatement petition?

Background:

Claimant petitioned for review of an adjudication of the Workers’ Compensation Appeal Board (Board) reinstating his total disability benefits as of February 21, 2019, the date on which he petitioned for reinstatement. Claimant argued that the Board erred and should have reinstated his benefits as of October 7, 2010, the date that his disability status was modified from total to partial based upon an unconstitutional impairment rating evaluation (IRE) conducted under former Section 306(a.2) of the Workers’ Compensation Act (Act).

 Holding: 

Claimant did not file his petition seeking reinstatement of benefits until February 21, 2019, after the Supreme Court’s decision in Protz II was issued. The WCJ credited Claimant’s testimony and granted his reinstatement petition as of the date he petitioned for reinstatement. The WCJ’s decision is consistent with Whitfield and its progeny.  The claimant was not deprived of a vested right to workers’ compensation benefits as to be vested, these rights must be more than an expectation, based upon an anticipated continuance of existing law. It must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from a demand made by another.  A WCJ may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its WCJ, upon petition filed by either party.  As such, there are no vested rights in workers’ compensation benefits.  Because Claimant did not challenge the 2010, IRE until after Protz II was decided, he is only entitled to a reinstatement of total disability benefits as of the date on which he filed his reinstatement petition.

Affirmed

Brian Temme Tree Service And SWIF v. Jerry Ecott (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Filed May 10, 2022

Issue:

Whether the WCJ’s denial of the Employer’s Modification Petition, based upon an IRE, was supported by substantial, competent evidence?

Background:

On March 27, 2019, Employer required Claimant to undergo an IRE pursuant to Section 306(a.3) of the Act. Based on the results of the IRE, Employer filed its Modification Petition on April 18, 2019. Here, Employer presented the written IRE report in support of its Modification Petition. Claimant did not submit any evidence addressing the IRE.  Instead, he submitted a series of “evaluation reports” from another physician.  These reports did not apply the Guides or address Claimant’s impairment rating in any other fashion. Furthermore, Claimant’s counsel admitted on the record that the reports were offered for “historical” purposes only, while the WCJ expressly found the reports did not address impairment rating.   Neither party presented live testimony, and Claimant’s counsel was not able to cross-examine the IRE doctor.   The WCJ rejected the IRE as not credible or persuasive to support a modification of benefits.   The WCJ supported this conclusion by finding that the IRE report did not adequately address Claimant’s documented chronic pain issues and its effect on Claimant’s ability to function.  Also she took issue with the IRE doctor’s application of the Guides, finding that although the percentage assigned for each condition is 5%, which mathematically adds up to 15%, she was not convinced that the aggregate effect of the pain associated with these conditions may not be significantly more. Finally the WCJ pointed to various testing and questioning which was not performed as part of the IRE.

Holding:

After an injured worker has received total disability benefits under the Act for 104 weeks or more, Section 306(a.3) of the Act authorizes employers to conduct an IRE.  The worker may then contest the results of the IRE through submission of contrary evidence or by cross-examining the employer’s witnesses.  The WCJ’s findings are not supported by substantial evidence of record.  A WCJ cannot support her conclusions by simply interjecting her own lay opinion on medical subjects. Here, the WCJ rejected the IRE impairment rating based solely on her personal opinion of how an IRE addressing Claimant’s particular condition should be conducted. Given that the IRE report was the sole evidentiary support for Employer’s Modification Petition, these erroneous findings of fact were clearly central to the WCJ’s decision. Accordingly, because these findings are not supported by substantial evidence, the WCJ erred in denying Employer’s Modification Petition and the Board erred in affirming that determination.

Reversed

Republic Services of Pennsylvania, LLC v. Robert Schaffer, Jr. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 12, 2022

Issue:

Did the WCJ err in failing to grant Employer a credit for previously paid weeks of partial disability pursuant to the retroactivity clause of Act 111, where a crucial document, not part of the record in the matter, was used by the WCJ to justify treating those previous weeks as total disability payments?

Background:

Prior to 2012, the Employer filed a modification petition seeking to change Claimant’s disability status based upon an IRE. In 2012, Claimant signed a supplemental agreement that reflected that Claimant’s benefits are to be modified to partial disability as of August 22, 2011.   However, there was a stipulation in 2018, as a result of Protz, in which Employer agreed that Claimant’s disability was a total disability and not a partial disability as part of the litigation of a Reinstatement Petition.  The parties agreed that the petition should be granted reinstating Claimant’s benefits to total as of August 22, 2011.   On March 4, 2019, Claimant underwent a second IRE by Dr. Michael Weiss, who found that Claimant’s impairment rating was 28% based on the AMA Guides, Sixth Edition (Second IRE). Employer filed a Modification Petition in April 2019 based on the Second IRE, requesting the benefit status be modified to partial disability. The WCJ granted the Modification Petition as of the date of the Second IRE.  He concluded that Employer was not entitled to credit for the weeks it paid partial disability benefits since those provisions of the Act were found unconstitutional.   The WCJ modified the wage loss benefits to temporary partial disability pursuant to the 28% rating in the Second IRE in regard to Claimant’s work-related injuries. The WCJ found the benefits prior to the date of the Second IRE (March 4, 2019), should be classified as temporary total disability benefits and not partial disability benefits, based, in part, on the 2012 Agreement.  Further, the WCJ ordered that all wage loss benefits paid before March 3, 2019, “shall be considered temporary total disability benefits.”

Holding:

This matter turns on the 2018 stipulation.  Employer’s agreement to classify Claimant’s disability status as “total,” retroactive to August 2011 was in lieu of litigating the then pending Reinstatement Petition. The 2018 Stipulation was not made an exhibit or submitted formally as evidence during the litigation of the Modification Petition before WCJ.  Nevertheless, based on the circumstances, exclusion of the facts agreed upon in the 2018 Stipulation is not appropriate. This situation is more akin to recognition of adjudicated facts than to judicial notice. Employer improperly seeks to disclaim the application of the adjudicated facts of the prior proceeding related to reinstatement.    This Court does not construe Protz to have compelled all employers to agree to classify all claimants as having a total disability. Employer elected not to litigate the Reinstatement Petition, pure and simple.  In lieu of litigating whether Claimant was entitled to reinstatement at the total disability level, Employer agreed to classify Claimant’s benefits as total disability benefits. Because the 2018 Stipulation set forth facts that were the basis for a subsequent adjudication, and made a part of that decision, it was not improper for the Board to consider it. Employer was properly bound by its agreements.

Affirmed

Sandra Tufano v. Tammy L. Clause, P.C. (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 13, 2022

Issues:

Is the Board’s order, which affirmed the WCJ’s finding that Claimant had reached MMI supported by substantial, competent evidence?   Does Section 306(a.3) of the Act, 77 P.S. 511.3, deprive Claimant of a vested statutory right in violation of the Remedies Clause of the Pennsylvania Constitution?

Background:

Claimant sustained a work-related soft tissue neck strain.   In April 2017, Claimant underwent an IRE per former Section 306(a.2) of the Act.   Claimant’s IRE resulted in a whole-body impairment rating of less than 50%. As a result, Employer converted Claimant’s disability status from temporary total disability (TTD) to partial disability. On June 20, 2017, however, the Supreme Court issued its decision in Protz II.  In response to the Protz II decision and to reestablish the IRE process, on October 24, 2018, the General Assembly enacted Act 111, which took immediate effect.  Subsequent to its enactment, on September 11, 2019, Claimant underwent another IRE.  Based on this impairment rating, Employer filed a Modification Petition seeking to change Claimant’s disability status from TTD to partial disability.

Holding:

There was substantial evidence to support the WCJ’s findings and the Board’s conclusions as to MMI. Further, Employer was not required to wait 104 weeks from the effective date of Section 306(a.3) of the Act before obtaining an IRE.  There are reasonable expectations under the Act that benefits may change.  The enactment of Section 306(a.3) of the Act did not change Claimant’s status, deprive her of any vested rights, or change the status of her workers’ compensation benefits. Section 306(a.3) of the Act merely established a mechanism for Employer to seek modification of Claimant’s disability benefits in the future. Accordingly, the court rejected Claimant’s constitutional challenge to Section 306(a.3) of the Act.

Affirmed

BUREAU FORMS

The School District of Philadelphia v. Carleton Holman (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 19, 2022

Issues:

Did the Board err in reversing the WCJ’s decision denying and dismissing Claimant’s Penalty Petition, where it is argued the Employer followed the Act and the regulations by correctly utilizing a form prescribed by the Department, and otherwise acting in accordance with the law?

Background:

Employer issued an NTCP recognizing various injuries.  Pursuant to the NTCP, Employer agreed to pay Claimant medical benefits and wages in lieu of compensation. Shortly thereafter Employer issued a Medical-Only NCP for the injuries and stopped paying wage benefits. Claimant filed a Penalty Petition alleging that Employer violated the Act and regulations by unilaterally stopping payment of wage compensation. Claimant sought penalties and a reinstatement of compensation benefits. Claimant testified that he never received a Notice Stopping Temporary Compensation (NSTC).   Employer argued that by issuing a Medical-Only NCP within 90 days of issuing the NTCP, it complied with Bureau regulation 34 Pa. Code § 127.17 and did not otherwise violate the Act.

Holding:

Section 406.1(c) of the Act generally provides that if an insurer controverts the right to compensation, it shall promptly notify the employee or his dependent, on a form prescribed by the Department, stating the grounds upon which the right to compensation is controverted and shall forthwith furnish a copy or copies to the Department.   Section 406.1(d) of the Act specifically addresses NTCPs. NTCPs are to be used in situations where, as here, an employer is uncertain whether a claim is compensable under the Act or the extent of its liability. Under 34 Pa. Code § 121.17(d)(1)-(3), when an employer seeks to stop paying temporary compensation under an NTCP, an employer may file: (1) an NSTC and NCD within a prescribed timeframe; or (2) an NCP; or (3) an Agreement for Compensation for Disability or Permanent Injury.  Requiring an employer to issue an NSTC and NCD when it chooses to accept medical liability would essentially require an employer to misinform a claimant as to the status of his or her claim and demand that a claimant expend the time and resources needed to file an unnecessary claim petition in order to vindicate his or her rights and would defeat the humanitarian purposes of the Act. The filing of a Medical-Only NCP to stop compensation payments under an NTCP comported with both the Act and its regulations.  As such, the WCJ did not err in determining that Employer did not violate the Act or regulations and by denying and dismissing Claimant’s Penalty Petition.

Reversed

JUDICIAL DISCRETION

Nicholas Conner V. Ram Forest Products, Inc. And Todd Smith Logging, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 28, 2022

Issue:

Is the WCJ’s determination that the claimant was an independent contractor, and not an employee, supported by substantial evidence?

Background:

The tax forms completed by Claimant revealed his status as an independent contractor. Claimant completed a W-9 form, acknowledging that he was a sole proprietor and not an employee. Furthermore, the Employer issued 1099 Forms in 2017, 2018, and 2019 indicating that it considered Claimant as an independent contractor and not an employee.  Claimant completed tax forms in 2017, 2018, and 2019, noting his self-employment as a logger. Furthermore, there is no dispute that Claimant was not paid based on his hours of work, or at a weekly rate, but instead was paid on the basis of his production. Finally, logging was not part of the regular business of Employer.  Rather, Employer is a high volume hardware lumbar sawmill which does not employ any loggers. While it is obvious that Employer, as a sawmill, needs lumber, it was not part of its regular business to perform the logging work. To the contrary, Employer hired independent contractors to perform the logging.  On November 13, 2020, the WCJ held that Claimant failed to establish he was Employer’s employee when he was injured on August 16, 2019. Claimant appealed to the Board. On September 1, 2021, the Board affirmed the WCJ’s decision.

Holding:

Section 104 of the Act defines an employee. There is no bright line rule for determining whether a particular relationship is that of an employer-employee or owner-independent contractor.  Nevertheless, our Supreme Court has established the following factors that must be considered when making such determination:  Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer; and also the right to terminate the employment at any time.   Since this Court may not reweigh the evidence or the WCJ’s credibility determinations, and because the record evidence supports the WCJ’s findings of fact and conclusions of law, this Court holds that the Board properly affirmed the WCJ’s determination.

Affirmed

Josephine Hinchey v. Mercy Catholic Medical Center (WCAB)

Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion

Decided April 28, 2022

Issue:

Did the WCJ fail to issue a reasoned decision based on the evidence as a whole?

Background:

The WCJ found Claimant’s medical evidence incompetent because it did not address how the work injuries were causally connected to her new diagnoses. Only one of her doctors, Dr. Murphy, even acknowledged that the accepted work injury was a lumbar strain and he failed to address that Claimant had fully recovered from that injury in 2015 and was claiming a recurrence of the injury. Thus, none of her medical experts explained how the lumbar strain recurred and caused new injuries and/or aggravated preexisting injuries. Accordingly, none of the medical experts based their diagnoses on the factual record of the case, rendering their opinions incompetent.

Holding:

Whether medical evidence is competent is a conclusion of law reviewable on appeal.  A medical expert’s opinion is not rendered incompetent unless it is solely based on inaccurate or false information.  The opinion of a medical expert must be viewed as a whole, and inaccurate information will not defeat that opinion unless it is dependent on those inaccuracies.   Claimant has the burden of proving a causal connection between the previously accepted work injury and her current disability. Her first expert made no attempt to address a causal connection.  Her second expert described the 2014 work injury as causing neck and back pain even though her claim of neck injuries was rejected by a prior WCJ.  The third expert diagnosed Claimant with numerous neck and back injuries along with anxiety, depression and facial twitching and claimed that all the diagnoses are related to the work incident.  However, he did not identify the work injury as a lumbar strain nor did he acknowledge a prior WCJ’s decision that found that Claimant had fully recovered from her lumbar strain and which rejected Claimant’s attempt to include neck injuries, anxiety, and depression as work-related injuries.  Thus, claimant’s medical evidence was incompetent.   Section 422(a) of the Act, 77 P.S. § 834, requires a WCJ to make the findings of fact and credibility that are necessary for meaningful appellate review. Here, it was not necessary to address Claimant’s credibility. Her medical evidence was deemed incompetent and without it she could not prevail. Thus, the WCJ properly complied with Section 422(a) of the Act, and his decision was reasoned.

Affirmed

 Accurate Engineering Solution v. John Anderson and Williams Form Engineering (WCAB) 

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

 Issue:

Whether the WCJ erred or abused her discretion when she granted Claimant’s request to withdraw his claim petition over Accurate’s objection, when the withdrawal prejudiced Accurate’s ability to seek reimbursement from Williams for a medical bill Accurate mistakenly paid?

Background:

Claimant responded to an unsolicited email from Accurate, a technical staffing agency, about an opening for a plant manager at Williams. Williams’ representatives interviewed and hired Claimant for the position. Williams directed Claimant’s work activities on site, but at least for the first 90-day probationary period, Claimant was employed and paid by Accurate under Accurate’s agreement with Williams.  Claimant filed a claim petition alleging that he was injured in the course of his employment with and on the premises of Accurate when he slipped and fell 15 feet, sustaining multiple injuries. Accurate issued an NCD on the basis that the injury was not in the scope of Claimant’s employment.  The following day Accurate paid $44,065.71 to Main Line Health for surgical services rendered to Claimant from December 7, 2018, to December 12, 2019.   The payment was inadvertent according to Accurate’s counsel. Accurate filed a joinder petition against Williams on the basis that Claimant was a borrowed employee.  There was no agreement as to Claimant’s employer.

Holding:

The WCJ’s failure to consider Accurate’s joinder petition, and to determine whether Accurate or Williams is the responsible employer, is the precise source of her error here. Accurate’s joinder petition was pending before the WCJ when she received Claimant’s request to withdraw. Accurate was prejudiced when the WCJ granted Claimant’s withdrawal, over Accurate’s objection, before she admitted evidence and determined Claimant’s responsible employer. The timing of the WCJ’s granting Claimant’s withdrawal before considering Accurate’s pending joinder petition was in error because it failed to “promote, consistent with fairness and due process, the orderly and expeditious determination of proceedings” before the WCJ under the Act. 34 Pa. Code § 131.1(a). The WCJ’s decision denied Accurate the opportunity to be heard on the issue of Claimant’s employer, without which it lacks a forum to seek reimbursement for the medical bill it mistakenly paid. The WCJ erred when she, in effect, closed the record prematurely, before Accurate had the opportunity to submit “all of [its] evidence and rest[ ],” as required by the Department’s regulation.   The dispute which must be resolved on remand is whether Accurate or Williams is Claimant’s employer, and which employer or insurer is responsible for the medical bill that Accurate paid to Main Line Health for Claimant’s surgery.

Reversed and Remanded

WAIVER, FORFEITURE, UTILIZATION REVIEW

 Joan M. Rotegliano v. Clinton Hospital Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 12, 2022

Issues:

Should Employer’s appeal be quashed because Employer failed to properly preserve its issues in its appeal?  Did the claimant provide a reasonable excuse for her failure to attend the IME? May the WCJ find palliative treatment unreasonable and unnecessary where it is shown to be of little value due to the passage of time or other considerations?

Background:

The Claimant sustained a work-related injury which was accepted as a Herniated Nucleus Pulposus (HNP) at C5-6. Sometime later, a WCJ issued a decision expanding the description of Claimant’s injury.  That decision also upheld a UR report finding Claimant’s prescriptions for opioids to be reasonable and necessary.  Thereafter, in a later proceeding, a WCJ granted Employer’s petition for physical examination and ordered Claimant to undergo an IME at a specified address.   Subsequently, Employer filed a suspension petition based on Claimant’s failure to attend the scheduled IME.

Holding:

Merely listing conclusion of law by number is insufficient to preserve legal issue for appeal.  While an appeal to the Board that enumerates a WCJ’s challenged findings of fact and asserts that they are not supported by substantial evidence will be sufficient to preserve those issues, to the extent a party seeks to raise legal issues to the Board but only lists the challenged conclusions of law without also specifying the legal basis for appeal in its documentation, those claims will be deemed waived.

Claimant did not provide a reasonable excuse for her failure to attend the IME. Claimant’s affidavit stated that her attorney’s office gave her an address in Lemoyne and her caregiver-driver Shannon Fields printed directions to that address. They arrived on time for the scheduled IME but were told they were not in the system for an appointment. They were given another address in Mechanicsburg, which was also incorrect. They were finally given the correct address in Harrisburg, but by the time they arrived, nearly three hours after the appointment time, the IME doctor had left for the day. They tried calling Claimant’s counsel several times but were unsuccessful. An affidavit from Employer’s IME vendor stating that an appointment letter with the correct Harrisburg address was sent to Claimant and her counsel and the address was confirmed with counsel’s office prior to the IME date; the affidavit adds that the vendor does not conduct IMEs in Lemoyne or Mechanicsburg.  Further, the WCJ’s IME order and IMX’s letter advised both her and her counsel of the correct address or that she had the opportunity for Employer to transport her to the IME but chose instead to be personally responsible for her attendance.

Treatment may be reasonable and necessary even if it provides solely palliative relief and does not cure the underlying injury. However, the WCJ may find palliative treatment unreasonable and unnecessary where it is shown to be of little value due to the passage of time or other considerations.  Given the change in the way these medications are being used in the medical community, it is not unreasonable for an employer to question the ongoing, long term prescription of opioids to claimants.

Affirmed

RES JUDICATA AND COLLATERAL ESTOPPEL

 Pocono Mountain School District v. Jeffrey Kojeszewski (WCAB)

Commonwealth Court of Pennsylvania

Decided April 21, 2022; Published July 7, 2022

 Issues:

Whether the Board erred in affirming the decision and order of WCJ because the opinion of Dr. Talsania was contrary to facts previously found by prior WCJ and the medical evidence established that Claimant was fully recovered from those injuries?

Background:

Claimant sustained a work-related injury when he slipped and fell while applying polyurethane to a gymnasium floor. Claim petition granted and recognized various work-related injuries.  The Claimant’s benefits were suspended when Claimant returned to his pre-injury position with no loss of wages.   In 2019, Claimant filed a review petition seeking to add left brachial plexopathy to the description of his injuries, as well as a reinstatement petition seeking wage loss benefits as of June 26, 2018.  Employer filed a termination petition alleging that Claimant had fully recovered from his work injuries as of September 12, 2019.

Holding:

Here, there was not an identity of issues between the claim and review petitions. In the claim petition, Claimant alleged different injuries from those he sought to add by means of the review petition filed in light of subsequent medical developments. Therefore, res judicata does not apply.   Here, ulnar nerve subluxation was not raised as an issue in the claim petition. Accordingly, it cannot be said that Claimant had a full and fair opportunity to litigate that issue, and similarly, it was not essential to the judgment. Therefore, collateral estoppel is inapplicable.  Further, the uncontradicted evidence indicated that Claimant had fully recovered from the injuries recognized in the earlier decision. However, a partial grant of a termination petition is improper, as a termination requires that all disability has ceased. Accordingly, in light of Claimant’s ongoing disability relating to left brachial plexopathy, this Court affirms the denial of Employer’s termination petition based on Claimant’s purported recovery from his previously recognized injuries.

Affirmed

PENALTIES

Theresa Skay v. Borjeson & Maizel Llc (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania

Decision May 10, 2022; Published July 26, 2022

Issue:

Whether the WCJ erred as a matter of law by denying a Penalty Petition because the Employer unilaterally refused to pay for medical treatment that had been subjected to an unchallenged UR Determination that found the treatment reasonable and necessary?

Background:

Claimant fell in a crosswalk while in the course of her employment. Claimant’s work injury had been established as “status post L5-S1 fusion, bilateral SI joint disease with SI joint mediated pain,” and “reflex sympathetic dystrophy of the lower left extremity.” A WCJ denied Claimant’s Review Petition, which sought to add mood disorder and major depressive episodes to the work injury. That WCJ also found that Claimant did not suffer from postural orthostatic tachycardia syndrome.   During Claimant’s receipt of workers’ compensation benefits, UR Determinations were completed on August 17, 2015, and December 11, 2017.  Both UR Determinations found that every medication prescribed to Claimant by provider was reasonable and necessary.   On November 12, 2019, Claimant filed a Penalty Petition, alleging that Employer violated the Workers’ Compensation Act (Act) by failing to pay for some of Claimant’s prescription medications. Many of the medications for which Employer ceased payment had been approved as reasonable and necessary as part of the 2015 and 2017 UR Determinations.  Employer unilaterally refused to pay for some of Claimant’s prescription medications, because Employer believed that those prescription medications were not causally related to Claimant’s work injury. Employer was legally permitted to do this, but Employer would have been liable for penalties if a WCJ determined that the prescription medications at issue were causally related to Claimant’s work injury.  Claimant did not present any other challenges to Employer’s evidence that the prescription medications at issue in this matter were unrelated to the work injury. Claimant relied solely on the prior, unchallenged UR Determinations, which Claimant believes established that the prescription medications at issue in this matter were determined to be reasonable and necessary for treatment of Claimant’s work injuries.

Holding:

If an employer believes that a claimant’s medical expenses are not causally related to the claimant’s work injuries, the employer may unilaterally stop paying for those medical expenses. If an employer does so, however, the employer “assumes the risk of exposure to possible penalty liability contingent upon a WCJ’s ruling concerning the causal relation of the medical costs.   An employer, who questions ‘causation’ and the subsequent medical bills, may escape penalty provision liability for unilaterally ceasing to pay for these medical bills, if a WCJ later determines that the medical bills were indeed not causally related to the work-related injury.”  The only evidence Claimant presented or referenced to establish a causal relationship between the prescription drugs at issue and the work injury was the prior UR Determinations. UR Determinations do not decide the causal relationship between treatments and the work injury. Thus, Claimant did not present any evidence establishing that the prescription medications were causally related to the work injury. Accordingly, the WCJ’s findings and the Board’s conclusions, that Claimant failed to establish that the prescription medications at issue in this matter were causally related to Claimant’s work injury, are free of legal error.

Affirmed

 VOLUNTARY REMOVAL

 Cargill Meat Solutions v. Kathleen Johnson (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 4, 2022

Issue:

Whether the WCJ erred when he determined that Employer had failed to establish that Claimant had retired or voluntarily left the workforce?

Background:

Claimant worked for Employer for 12 years. Claimant suffered a work-related injury. Claimant continued to work but was eventually terminated by Employer. A WCJ awarded Claimant total disability benefits as of the day after the termination from employment.  Thereafter, Employer sought to suspend Claimant’s benefits, asserting that she had voluntarily withdrawn from the workforce.  According to Employer, Claimant testified that she has not looked for work since 2017; that she is currently on SSDI; and that she did not plan on returning to work.  The WCJ credited Claimant’s testimony in its entirety but specifically credited her testimony that she would have continued working but-for the work related injury and subsequent involuntary discharge.

Holding:

Disability benefits must be suspended when a claimant voluntarily leaves the labor market upon retirement.  Only after the employer has met this initial burden does the claimant incur any evidentiary burden of proof. Whether a claimant has elected to receive a pension is probative but not conclusive of a claimant’s desire to leave the workforce.   Further, the receipt of SSDI could be evidence that a claimant’s work injury forced him or her out of the labor market.  Employer offered no evidence to meet its burden other than Claimant’s testimony. The WCJ considered Claimant’s lengthy service with Employer; that she had continued to work after her injury, even beyond her physical limitations; that she had not resigned but was terminated by Employer; that her disability was permanent; that she had nonetheless sought employment within her functional limitations; and that she had qualified for SSDI based on her disability and not due to her age. Based on this substantial evidence, the WCJ reasonably concluded that Employer failed in its initial burden to prove that Claimant had voluntarily left the workforce.

Affirmed

YELLOW FREIGHT

 Joanne Desue v. Bank of America (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 21, 2022

 Issues:

Whether Claimant was entitled to a presumption that her disability continued and the burden was on Employer to overcome that presumption, based upon the late answer?  Whether the Employer offered competent evidence to rebut the presumption of ongoing disability or the onset of psychological injuries?

Background:

Claim Petition alleging that she sustained a work-related injury while in the course of her employment as a paralegal. Employer filed an untimely Answer to the Claim Petition denying the material allegations contained therein.  Claimant’s counsel, citing Yellow Freight, moved to have all facts alleged in the Claim Petition deemed admitted because of Employer’s failure to file a timely answer.  Thereafter, Claimant filed a Review Petition alleging that she is also suffering from psychological symptoms and disability as a result of her work injury, and she sought to amend her claim to include a psychological condition.

Holding:

Under Yellow Freight, because every factual allegation asserted in the claim petition is admitted as true, the employer is barred from presenting any affirmative defenses or evidence to rebut the facts deemed admitted.  However, an employer is not precluded from offering evidence in rebuttal to facts that a claimant did not specifically allege in a claim petition.  Further, an unexcused late answer admits facts, but not legal conclusions. Pursuant to Yellow Freight, the admitted allegations are that Claimant sustained the listed injuries and that she was entitled to the presumption of an ongoing disability as a result of her work-related injury. It was Employer’s burden to rebut this presumption. In this regard, the WCJ erred.  Although the WCJ erred by placing the burden on Claimant to prove an ongoing disability, the WCJ’s misplacement of the burden was harmless under the circumstances here because Employer had otherwise presented rebuttal evidence that Claimant had fully recovered from her work injury.

Employer’s expert did not accept that Claimant had sustained an aggravation of a preexisting condition even though that allegation was set forth in the Claim Petition and was deemed admitted by Employer.  By refusing to accept that Claimant sustained an aggravation of a preexisting degenerative condition, it was not possible for Employer’s expert to give an opinion that Claimant had fully recovered from that injury. The WCJ erred by finding that Claimant had fully recovered from her work injury, limiting the award of compensation to a closed period, and terminating Claimant’s benefits.

Although both doctors opined that Claimant has a psychological impairment as a result of her ongoing physical symptoms, the WCJ did not make specific credibility determinations regarding their testimony or findings regarding the nature of her mental impairment and relation to the work injury. The matter is remanded to the WCJ to render necessary findings of fact and conclusions of law regarding Claimant’s Review Petition.

Reversed In Part, Vacated In Part, And Remanded For Further Proceedings.

 Tashneen Webb v. Prime Healthcare Services, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

Issue:

Whether the WCJ erred in holding that Employer presented an adequate excuse for its late answer?

Background:

Employer filed its answer three days after the deadline set forth in the Workers’ Compensation Act (Act).  The WCJ denied Claimant’s Yellow Freight motion, attributing Employer’s untimely answer to the confusion as to the addresses of Employer.

Holding:

The grant of Claimant’s Yellow Freight motion would not change the outcome. An employer’s admission covers allegations up to the answer deadline. However, the employer may rebut the presumption with evidence. Employer presented the deposition testimony of Dr. Sachs, who testified that as of the date of the IME, November 30, 2018, Claimant had fully recovered from her July 21, 2018, work injury; required no further medical treatment; and could return to work without restriction. In short, even if Claimant’s Yellow Freight motion had been granted and the allegations in the claim petition were accepted as true, Dr. Sachs’ testimony satisfied Employer’s burden of proving that Claimant had fully recovered from her work-related injuries as of November 30, 2018, the date of the IME.  An expert need not believe the claimant has sustained a certain injury so long as the expert opines on whether the accepted injury continues to disable the claimant. Accordingly, the court affirmed the Board’s adjudication.

Affirmed

 

NEW JERSEY WORKERS’ COMPENSATION

BURDEN OF PROOF – TRAUMATIC EVENT

L.P. v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-3280-19; 2022 WL 1164876

Decided: 4/20/2022

Background:

L.P. appeals from the March 18, 2020 decision of the Public Employees’ Retirement System (PERS) Board of Trustees, which adopted the decision of an Administrative Law Judge (ALJ) denying her application for accidental disability retirement (ADR) benefits.

L.P. was employed as a Rutgers University police officer. On June 9, 2008, L.P. responded to a call that a young boy had entered a pond on campus and disappeared. She entered the pond and commenced the search. She testified that she was not concerned for her safety during the search. L.P. never found the boy. About 20 minutes into her search, the New Brunswick Fire Department arrived and directed her to exit the pond. The NBFD eventually recovered the child’s body, which L.P. never saw since a sheet was used to cover the boat when they recovered the remains.

L.P. continued to work with no issues until three months later, when she reported changes in her behavior like trouble sleeping and eating, and nightmares. L.P. had been in treatment since 2003 for anxiety and depression. L.P. started feeling overwhelmed at work in 2011, which continued through 2012 and 2013, when she suffered a panic attack at work, causing her to go on sick leave for three months. She had a psychiatric evaluation in May 2013, and was found to be unfit for duty. She applied for ADR benefits on June 30, 2013, which was denied, leading to an appeal in front of an ALJ.

Two psychologists testified at her trial, with L.P’s expert stating she had PTSD as a direct result of the event in 2008. The State’s expert testified that he did not see evidence to support a PTSD diagnosis and L.P. did have prior diagnoses of major depressive disorder, generalized anxiety disorder, and alcohol and cannabis abuse. He opined that those diagnoses caused her to be unable to perform her job duties, not the 2008 event.

The ALJ found that the Board correctly denied her application for ADR benefits. The ALJ further stated that to qualify for ADR benefits for a “mental-mental” claim, the member must meet the Richardson criteria as well as the criteria in Patterson v. Board of Trustees, State Police Retirement System. The ALJ found the event did not meet the Patterson standard. The ALJ also found that the June 2008 event was not undesigned and unexpected. The Board adopted the ALJ’s decision, and this appeal followed.

 Holding:

In Richardson v. Board of Trustees, Police, and Firemen’s Retirement System the court set forth a 5-prong test, requiring a member seeking accidental disability benefits to prove, in relevant part that he is totally and permanently disabled “as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member.” Further case law established that what is required is a “traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.”

In Patterson, the Court clarified that a person who develops a permanent mental disability from a work-related traumatic event may qualify for ADR benefits even if it did not involve “physical impact.” In addition to satisfying the Richardson factors, someone with a mental-mental claim must show that the disability 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.” The Court cited numerous examples in case law of the types of events that met the “traumatic event threshold,” which they state demonstrate that to satisfy the Patterson standard, the situations involving the actual or threatened death or serious injury of another person requires the member to have had a sensory experience of the person harmed or in peril.

The Court held that the credible evidence supports the Board’s determination that L.P. did not experience a traumatic event that satisfies the Patterson threshold requirement, as L.P. testified that she did not see or hear the boy during the rescue attempt, and did not see the body after the remains were located. Additionally, L.P. testified that she was not in distress during the search, supporting the Board’s determination that she was never at risk of serious harm.

Affirmed.

NOTICE

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

Superior Court of New Jersey, Appellate Division

No. A-2930-20; 2022 WL 1406361

Decided: 5/04/2022

Background:

Marilyn Holloway appeals from a May 12, 2021 final agency decision by the Board of Trustees (Board) of the Teachers’ Pension and Annuity fund (TPAF), which denied her application for ordinary disability retirement benefits. The Board adopted the findings of fact of an Administrative Law Judge (ALJ), including that she was not totally and permanently disabled from her job duties.

Holloway worked as a teacher starting in 1995. In January 2006, she slipped, injuring both of her knees, which required surgery. She returned to work for the 2007-2008 school year, and worked for another 7 years, until the 2013-2014 school year, when she receive da change in assignment. She then contended she was not able to do her job duties due to shortness of breath and an inability to stand for a significant amount of time.

On February 18, 2016, Holloway filed an application for accidental disability (AD) retirement benefits, alleging she was totally and permanently disabled. The Board denied this application, after which she requested an administrative hearing. Holloway then abandoned her application for AD retirement and requested ordinary retirement benefits. She also sought to include alleged non-orthopedic conditions in support of her disability claim, but did not file a new application.

The ALJ found that Holloway was not permanently and totally disabled from performing her job. Holloway claimed the Board did not consider her non-orthopedic injuries, but the ALJ found they were never presented to the Board and declined to consider them. The Board adopted the ALJ’s decision denying her ordinary disability retirement benefits. Holloway appealed.

Holding:

Holloway contended that the Board should have considered her non-orthopedic disability. The Court found that her argument failed because 1) the regulation does not allow for consideration of conditions not explicitly pled in the application; and 2) she did not indicate non-orthopedic conditions in her application. The N.J.A.C. establishes the requirements for retirement disability applications. The Court stated that they generally defer to an agency’s interpretation of its own regulations. Therefore, the Court held it is obvious that the applicable regulation requires an applicant who asserts medical conditions other than what was alleged in the initial application to withdraw it and resubmit. Based on that conclusion, the Court held that Holloway needed to identify both the orthopedic and non-orthopedic conditions that caused her alleged disability in her initial application, which she failed to do.

Holloway alleged that her application gave notice of non-orthopedic issues when it stated “I am unable to stand for any significant period of time because of severe injuries to both knees…I also cannot walk through hallways… and need to take pain medicine daily which clouds my thinking process[.]”. The Board viewed this application as alleging only orthopedic injuries. The Court concluded that Holloway failed to allege non-orthopedic conditions in her initial application, and the Board’s refusal to consider non-orthopedic conditions was reasonable.

The Court addressed the applicability of the substantial compliance doctrine, which “operates to prevent barring legitimate claims due to technical defects.” The Court found that there as no need to apply the doctrine as her application can be refiled with the inclusion of her non-orthopedic conditions. The Court further held that the Board’s notice of non-orthopedic conditions came after the initial application, and while filing a new application would be a procedural hurdle, Holloway provides no reason besides inconvenience why she did not comply with the regulation. Holloway could still submit a new application indicating her non-orthopedic conditions.

Finally, the Court found that the Board’s determination was adequately supported by the record and Holloway failed to meet her showing to challenge the determination.

Affirmed.