xxxx, pornsam, xpornplease, joyporn, pornpk, foxporn, porncuze, porn110, porn120, oiporn, pornthx, blueporn, roxporn, silverporn, porn700, porn10, porn40, porn900

CASE SUMMARIES 3/1/2023 – 3/29/2023

ANTHONY J. BILOTTI & ASSOCIATES, LLC

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
3/1/2023 – 3/29/2023

MEDICAL MARIJUANA

Teresa L. Fegley, as Exec. of the Est. of Paul Sheetz v. Firestone Tire & Rubber (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023

Issues:

(1) Whether Section 2102 of the MMA applies to WC carriers and overrides the requirements of the WC Act and the Board’s Regulations that mandate insurers pay for/reimburse the cost of medical treatment that is reasonable, necessary, and related to an accepted work injury? (2) Whether the Board erred by concluding that Section 2102 of the MMA precludes reimbursement for medical marijuana to a claimant using medical marijuana to treat an accepted work injury when it has been determined that such treatment is related to the work injury and is reasonable and necessary? (3) Whether reimbursement of Claimant’s medical marijuana treatment would cause the WC carrier to violate federal law?

Background:

Claimant sustained an injury during the course and scope of his employment with Employer. As a result, thereof, Claimant received medical treatment which included two back surgeries. Due to the severe pain in his back and legs, Claimant’s doctor prescribed opiates and narcotics, including OxyContin. Decades later, at the recommendation of his doctor, Claimant began taking medical marijuana in 2019, with the hope of eliminating the need for the opiates and narcotics he had been taking. Medical marijuana afforded Claimant pain relief and reduced his need for the opiates and narcotics. As a result of taking medical marijuana, Claimant weaned himself off Diazepam and OxyContin. In 2019, a UR determination declared that Claimant’s medical marijuana use was reasonable and necessary. Subsequently, Claimant filed a Penalty Petition, alleging that Employer violated the WC Act by failing to pay for his medical marijuana treatment, despite that the UR Determination declared that such treatment was reasonable and necessary. The WCJ denied the Penalty Petition, concluding that Claimant failed to prove that Employer’s refusal to pay for the medical marijuana treatment violated the WC Act.
Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.

Holding:

The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court also examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within this Commonwealth. Further, the MMA contains an immunity provision protecting patients from government sanctions. Moreover, the Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. As a preliminary matter, the Court held that the Employer did not waive Section 2102 of the MMA as a defense because Employers had raised such matters as a defense below. The Court also noted that, consistent with the rules of statutory interpretation, given that Worker’s Compensation carriers are insurers under the Insurance Law, they must also be held to be insurers for purposes of the MMA, and that the provisions of the MMA apply to WC carriers. Further, the plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” While the MMA mandates that nothing in the MMA shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law, “reimbursement” would not cause the WC carrier to violate federal law, or be at risk of facing federal prosecution, because, section 841(a) of the Federal Drug Act only provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Reimbursing Claimant for his out-of-pocket expenses for his lawful use of medical marijuana as a reasonable and necessary treatment for his work injury would not require Employer’s WC carrier to do any of the above prohibited acts.
Therefore, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. In support of this holding, the Court also noted that the MMA specifically mandates that no medical marijuana patients shall be denied any rights for lawful use of medical marijuana and that the WC Act provides employees a statutory right to WC medical expenses that are reasonable and necessary to treat a work injury.

Reversed and Remanded.

CONCURRING AND DISSENTING OPINION BY JUDGE FIZZANO CANNON

In a dissenting opinion, Judge Cannon, joined by Judge McCullough, concurred in the majority’s conclusion that Employer did not waive its ability to assert a defense of illegality. However, the dissent asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA, relating to insurers, provides that nothing in the act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.
Therefore, the plain language of the MMA does not require reimbursement for medical marijuana prescribed to a claimant to treat a work injury. The MMA does not expressly address “reimbursement” of medical marijuana costs, but rather, provides that the MMA cannot be construed to require an insurer to provide “coverage” of such costs. “Coverage” and “reimbursement” are two sides of the same coin and it makes no sense for Claimant to argue that reimbursement may be required where coverage may not. As for the federal Controlled Substances Act’s provision that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, an insurer reimbursing for medical marijuana costs under state law could be subject to federal prosecution, as either an aider/abettor or an accessory after the fact. The provider distributes and/or dispenses medical marijuana and necessarily violates federal criminal law by doing so. Further, the Court has previously held that, where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.

Edward Appel v. GWC Warranty Corp. (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023

Issue:

Whether the Board erred by concluding that, based on the plain language of the Medical Marijuana Act (MMA), an insurer or employer cannot be required to pay for medical marijuana?

Background:

Claimant sustained a work-related herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease. Employer accepted Claimant’s injury via a Stipulation of Facts approved in a 2015 WCJ Decision. Claimant received extensive treatment for his work injury, including two lower back surgeries. Claimant continued to experience chronic low back pain and symptoms in his legs for which his doctor prescribed opioids. Claimant received a medical marijuana card and used medical marijuana while he was weaning himself off the opioids. The Claimant filed the Review Medical Petition seeking a determination that his use of medical marijuana was causally related to his work injury and an order directing Employer to reimburse him for the cost thereof. The WCJ partially denied the Review Medical Petition. The WCJ concluded that Claimant met his burden of proving that his use of medical marijuana was related to the accepted work injury, but that Claimant failed to prove that Employer must reimburse him for his out-of-pocket medical marijuana expenses pursuant to Section 2102 of the MMA, which does not require an insurer or health plan to provide coverage for medical marijuana. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.

Holding:

The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides, that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court then examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within Pennsylvania. Further, the MMA contains an immunity provision protecting patients from government sanctions. The Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. The MMA provides that nothing in the MMA shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. While a plain reading of the statute does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either. Specifically, Section 2102 of the MMA does not prohibit an insurer or health plan from reimbursing payment for medical marijuana. The plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” Thus, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. The General Assembly intended that covered patients have access to the latest medical treatments. Any other interpretation would lead to an unintended, absurd result. Thus, because Section 2102 of the MMA does not prohibit insurers from covering medical marijuana, the WC Act mandates employers to reimburse claimants for out-of-pocket costs of medical treatment which has been found to be reasonable and necessary for their work-related injury. The WCJ concluded that the medical marijuana use was causally related to the work injury, therefore, the Employer was required to reimburse Claimant for his out-of-pocket costs under the WC Act.
Finally, since Employer is not prescribing marijuana, but only reimbursing Claimant for his lawful use thereof, Employer is not in violation of the Federal Drug Act.

Reversed.

DISSENTING OPINION BY JUDGE FIZZANO CANNON

In a dissenting opinion, Judge Cannon, joined by Judge McCullough, asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA legalized medical marijuana for the first time and in a limited manner; in doing so, it made clear that it was not to be construed to require insurance coverage of medical marijuana. This makes sense, since medical marijuana has not yet been approved by the FDA as safe and effective for use in medical treatment, and its use is not legal under federal law. The legislature, not the courts, must effect any change in the MMA’s stated policy and the balance struck regarding insurance coverage. Therefore, this Court must affirm the Board’s holding that the MMA cannot be read to mandate reimbursement for prescribed medical marijuana provided to WC claimants. The provider necessarily violates federal criminal law by distributing or dispensing medical marijuana. Where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.

IMPAIRMENT RATING EVALUATIONS

Charles McCloud v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum
Opinion Decided: March 29, 2023

Issue:

Whether the Claimant’s TTD should have been reinstated as of the date of the original impairment rating evaluation (IRE) in 2012?

Background:

In 2003, Claimant suffered a work-related injury in the course and scope of his employment with the City of Philadelphia (Employer). Employer issued an amended Notice of Compensation Payable accepting the work injury. In 2012, Claimant underwent an IRE that found Claimant had a whole-body impairment of three percent. Thereafter, Employer filed a Petition to Modify Compensation Benefits, seeking to modify Claimant’s TTD status to partial disability status based upon the IRE. In 2014, the WCJ granted Employer’s petition pursuant to an agreement of the parties. Following Protz II, in which the Pennsylvania Supreme Court declared the IRE provision found in Section 306(a.2) of the Workers’ Compensation Act (Act) was an unconstitutional delegation of legislative power, Claimant filed a Reinstatement Petition seeking reinstatement to TTD status as of August 27, 2012, the date of the IRE. The WCJ granted Claimant’s Reinstatement Petition but, consistent with this Court’s decision in Whitfield, reinstated Claimant to TTD status as of November 26, 2019, the date Claimant filed his Reinstatement Petition. The Claimant appealed to the Board, and the Board affirmed.

Holding:

In Whitfield, the Court held that claimants who file a reinstatement petition to have their disability status reinstated to TTD following Protz are only entitled to reinstatement as of the date of filing the reinstatement petition. Claimant falls into this category and his date of reinstatement is controlled by Whitfield. Claimant’s numerous arguments as to why he should be reinstated as of the date of the IRE are not novel and have been previously rejected by the Court. The Court has repeatedly declined to give full retroactive effect to Protz in circumstances, such as this, where the claimant was not actively litigating the change in their disability status at the time Protz was decided. Claimant’s disability status was properly reinstated to TTD as of the date he filed his Reinstatement Petition.
Affirmed.

Deborah Reber v. R.E. Shenker/Little Lexington Farms (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 3, 2023

Issues:

Whether Claimant is entitled to reinstatement of her total disability benefits retroactive to the date of her IRE? Whether the WCJ erred in applying Whitfield rather than the stricter evidentiary burden required by this Court in Rawlins?

Background:

Claimant sustained a work-related head injury and was awarded TTD benefits. In May 2010, Claimant underwent an Impairment Rating Evaluation (IRE). The IRE yielded a 36% impairment rating which fell below the statutory threshold under former Section 306(a.2) of the Act. Thereafter, Employer filed a notice of change to disability status (Notice of Change), which documented a change in Claimant’s disability status from “total” to temporary “partial” disability (TPD) based on the IRE results. Claimant did not directly challenge the IRE’s validity or the change to her disability status. Several years after Claimant’s change to TPD status, this Court issued its decision in Protz I, which did not strike former Section 306(a.2) in its entirety but remanded the matter to the Board with instructions that any IRE must adhere to the Fourth Edition of the Guides, which was in effect at the time the General Assembly enacted former Section 306(a.2). In March 2016, prior to the expiration of her 500 weeks of TPD benefits, Claimant filed a petition challenging her IRE as unconstitutional, because it had been conducted pursuant to the Sixth Edition of the Guides and sought reinstatement of TTD benefits as of her IRE date. While Claimant’s petition was pending, the Pa. Supreme Court issued its decision in Protz II, which struck former Section 306(a.2) from the Act in its entirety. In February 2018, the WCJ granted Claimant’s petition, reinstating her TTD benefits as of the date she filed for reinstatement. The WCJ concluded that because Claimant did not challenge the constitutionality of her IRE until after the decision in Protz I, she was only eligible for reinstatement as of the date she filed her petition, not the date of her IRE. In February 2019, the Board remanded to the WCJ to allow the parties an opportunity to present evidence and argument. The WCJ granted Claimant’s reinstatement petition as of the date that she filed for reinstatement. The WCJ found that Claimant satisfied her burden of proof under Whitfield through her own credible testimony that the previous work-related head injury was serious and created ongoing issues for daily living which prevented return to her pre-injury position.

Holding:

The retroactive effect of the Protz decisions is settled. Here, Claimant did not challenge the constitutionality of her IRE initially, nor did she commence this litigation until after Protz I was decided. Thus, the WCJ correctly reinstated Claimant’s benefits as of the date she filed for reinstatement. Following an unconstitutional IRE, a claimant may establish that she is entitled to reinstatement to total disability status through credible testimony of her ongoing injury. In Rawlins, this Court distinguished Whitfield based on a stipulation entered between the parties. The claimant specifically agreed to a modification of his benefit status. The Rawlins distinction is inapplicable here because the Notice of Change does not constitute a stipulation. Claimant did not consent to the change in her disability status but, at most, simply declined to pursue a legal challenge to the modification, a perfectly reasonable decision considering the prevailing law at the time. Accordingly, the WCJ properly applied the Whitfield evidentiary burden. The WCJ properly reinstated Claimant’s benefits as of the date that she petitioned for reinstatement. Further, Claimant did not agree to the modification of her disability status; therefore, the WCJ properly required Claimant to establish her entitlement to reinstatement of her benefit status by introducing credible testimony of her ongoing injury.

Affirmed.

David Smuck v. Dana Holding Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 22, 2023

Issue:

Whether the Board erred as a matter of law in holding that Act 111 is to be applied retroactively to cases wherein the cause of action accrued/work injury occurred prior to the enactment of Act 111?

Background:

Claimant sustained a work-related injury in 2000. Employer issued a Notice of Compensation Payable and began paying Claimant temporary total disability (TTD) benefits. In 2020, Claimant underwent an IRE, which demonstrated a 10% impairment rating based on the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (6th edition AMA Guides). Employer filed its Modification Petition on June 4, 2020, requesting Claimant’s disability status be changed from TTD to temporary partial disability (TPD) benefits as of the IRE date. The WCJ concluded Employer met its burden of proof under Act 111 and granted Employer’s Modification Petition, modifying Claimant’s benefits from TTD to TPD effective the IRE date. The Board affirmed.

Holding:

In response to our Supreme Court’s decision in Protz, in which the Court held the IRE provisions contained in Section 306(a.2) of the Act violated the nondelegation doctrine of the Pennsylvania Constitution, the General Assembly enacted Act 111 on October 14, 2018. While the IRE process remains substantially the same as it was before, Act 111 requires a physician use the 6th edition AMA Guides when performing an IRE and permits modification to partial disability status if a claimant has a whole-body impairment of less than 35%. The Court has previously considered and rejected arguments like Claimant’s regarding the retroactive application of Act 111. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial. The application of Act 111 did not automatically change Claimant’s disability status or otherwise deprive him of vested rights under the Act. Claimant had no vested right in his benefits as calculated at the time of his injury because there are reasonable expectations under the Act that benefits may change over time. Thus, Claimant’s argument that Act 111 is not applicable to his case because his injury occurred before Act 111’s enactment lacks merit.

Affirmed.

MODIFICATION OF BENEFITS
Salvatore Taibi v. Borough of Slatington & Emp. Mut. Cas. Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided March 3, 2023

Issue:

Whether the WCJ erred in modifying claimant’s wage loss benefits, as the market research associate position failed to consider Claimant’s need for a cane, and as the position was only available for a short period of time?

Background:

Claimant suffered a work injury to his right knee and lower back in 2012, while working as a police sergeant for the Borough of Slatington (Employer), which Employer accepted through issuance of a Notice of Compensation Payable (NCP). Based on the opinions from independent medical examinations (IME) of Claimant in 2018 and 2019, that Claimant could return to work in a sedentary capacity, Employer issued a Notice of Ability to Return to Work. Thereafter, Employer filed a petition to modify Claimant’s wage loss benefits (Modification Petition), based on the availability of work within Claimant’s physical restrictions. The WCJ modified Claimant’s workers’ compensation wage loss benefits based on Claimant’s ability to return to work and the availability of a position within Claimant’s physical restrictions. The Board affirmed.

Holding:

The court was only concerned with whether the market research associate position with Solomon was not actually available, given Claimant’s need to walk or stand with the aid of a cane, as Claimant did not otherwise argue that he could not perform the duties of that position. At no point did employer’s witnesses, who were found to be credible, testify that the duties of market research associate could not be performed while using a cane.
The WCJ may not have explicitly found that Claimant could perform the duties of a market research associate while using his cane. However, based on the sedentary nature of the job and Claimant’s ability to perform those duties while sitting, such a finding was implicit. Further, there was evidence presented that the job with Solomon was available beyond the initial training period during which his wages would be funded by Employer’s workers’ compensation insurer. The Employer witnesses credibly testified that Solomon would pay Claimant’s wages after the training period, Claimant’s employment would be ongoing, and the market research associate position was a permanent one. Therefore, Employer presented substantial evidence to sustain its burden of demonstrating that Claimant’s earning power had increased, based on the availability of a job within Claimant’s physical, intellectual, and vocational abilities.

Affirmed.

TIMELINESS OF NOTICE OF AN UNINSURED CLAIM
Walter Swierbinski v. Scranton Restaurant Supply and UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion.
Decided: March 20, 2023

Issue:

Whether the Board erred in concluding that the UEGF was not liable for Claimant’s benefits because Claimant failed to timely notify the UEGF of his work injury, where Employer paid Claimant wages in lieu of workers’ compensation?

Background:

On October 10, 2017, Claimant suffered a work injury to his left wrist, right elbow, and right shoulder after falling down a flight of stairs while in the course and scope of his work as a restaurant equipment repairman. Claimant notified Employer of his work injury that day. He returned to work in a light duty capacity for a few weeks in January or February of 2018. Employer paid Claimant’s regular wages through June 2018, even though he wasn’t working. Claimant first became aware that Employer did not have workers’ compensation insurance in November 2017. Claimant filed a claim petition against Employer in 2019, seeking total disability benefits from October 10, 2017, and ongoing. On July 24, 2019, Claimant filed a Notice of Claim Against Uninsured Employer (Notice). Thereafter, on August 28, 2019, Claimant filed a claim petition against the Fund. The Fund filed an answer denying liability for Claimant’s work injury on the basis that Claimant failed to timely notify the Fund of his work injury. Counsel for the Fund acknowledged that Employer paid Claimant wages in lieu of compensation but asserted that Employer’s actions did not bind the Fund with respect to paying Claimant’s workers’ compensation benefits. Employer went out of business in early 2019 and had filed for bankruptcy. The WCJ granted the claim petition filed against the Fund. The WCJ found that, because Employer paid Claimant wages in lieu of compensation, the Fund was estopped from denying liability for Claimant’s work injury. The Fund appealed to the Board. The Board reversed, noting that Section 1603(b) of the Act barred the payment of compensation by the Fund if notice was not provided within 45 days. The Board held that amended Section 1603(b) applied retroactively unless a claimant had been paid compensation “under the Act or an award by the WCJ.” The Board reasoned that Employer’s payment of wages in lieu of workers’ compensation did not constitute compensation paid under the Act or pursuant to an award by a WCJ, in part because Employer had not formally accepted liability for Claimant’s work injury. Accordingly, the Board held that Claimant was required to notify the Fund within 45 days of the date he knew that Employer was uninsured, which occurred in November 2017. The Board reversed the decision of the WCJ to the extent it imposed liability upon the UEGF for the payment of Claimant’s workers’ compensation benefits. The Board’s order otherwise modified the WCJ’s decision to reflect that Employer was solely liable for payment of Claimant’s workers’ compensation benefits.

Holding:

Per Section 4(2) of Act 132, the amendment to Section 1603(b) applies “retroactively to claims existing as of October 24, 2018, for which compensation has not been paid or awarded.” An employer voluntarily paying an injured employee wages in lieu of workers’ compensation benefits, and who failed to file a Notice of Compensation Denial, could not later deny that the employee’s injury was work related. Payments in lieu of compensation qualify as compensation paid or awarded under Section 4(2) of Act 132.
An employer effectively admits liability under the Act by paying wages in lieu of compensation. Further, payments made in lieu of compensation act to toll the statutory period for filing a claim petition under Section 315 of the Act, provided payments are not made for services rendered, but to compensate a claimant’s lack of earning power, “just as if they had been formal payments rendered under the Act.” The informality by which Employer tendered its payments in lieu of compensation is irrelevant under the applicable statutory provisions and case law. Employer continued to pay Claimant’s wages until June 2018, including periods during which Claimant suffered wage loss due to his work injury. These payments constitute compensation “paid or awarded” under Section 4(2) of Act 132. Claimant’s receipt of payments in lieu of compensation constitutes compensation “paid or awarded” under Section 4(2) of Act 132. The Board erred in concluding otherwise, and the Court reversed the Board’s order to the extent it concluded that Claimant’s claim petition against the Fund was barred by retroactive application of the amendment to Section 1603(b) of the Act and, based on that conclusion, reversed the WCJ’s decision to grant Claimant’s claim petition against the Fund. The Court affirmed that part of the Board’s order that granted the claim petition filed by Claimant against Scranton Restaurant Supply (Employer). Employer is primarily liable for payment of Claimant’s workers’ compensation benefits, including any reasonable and necessary medical expenses that are causally related to Claimant’s October 10, 2017 work injury.
The Fund is secondarily liable for payment of Claimant’s workers’ compensation benefits, including any reasonable and necessary medical expenses that are causally related to Claimant’s work injury, pursuant to the applicable provisions of the Workers’ Compensation Act.

Reversed in part and affirmed in part.

COURSE AND SCOPE OF EMPLOYMENT
William Broomall v. Alpha Sintered Metals, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 3, 2023

Issue:

Whether Claimant’s left shoulder injury, which occurred at home, upon returning from therapy for his accepted right shoulder work injury, was causally related to that accepted injury?

Background:

Claimant injured his right shoulder while pulling on a wrench. Employer issued a Notice of Compensation Payable (NCP) for medical treatment only. As the result of the incident Claimant attended physical therapy. While Claimant was returning home from physical therapy, as he was getting out of his car, he slipped and fell on his icy driveway, sustaining an injury to his left shoulder. Claimant underwent surgery on his left shoulder. Claimant filed a review petition, seeking to have the left shoulder injury included as part of the original work injury. The WCJ denied and dismissed Claimant’s review petition on the ground that Claimant’s fall at home, following a physical therapy appointment, was not causally related to Claimant’s acknowledged right shoulder work injury. Claimant appealed to the Board, which affirmed the decision of the WCJ.

Holding:

When an injured employee develops further physical or psychological difficulties, an employer is responsible not only for the direct and immediate consequences of a work- related injury, but also for injuries that are causally related to the accepted work injury. A claimant who seeks to amend a notice of compensation payable to include a new and different injury has the burden of proving that the original work injury caused the additional injury. A “but for” test has been used in certain instances to establish causation, in relation to the original injury, when a claimant sustains separate injuries from a subsequent dissociated event that he otherwise would not have sustained if it was not for a previously incurred work injury. Here, the Claimant did not sustain his left shoulder injury while driving directly to his physical therapy session. Travel to the appointment is necessary to attend an appointment. However, this Claimant was not furthering Employer’s interests at the time he fell because he was home. Claimant’s injuries occurred after Claimant had finished his physical therapy appointment, left the
facility, completed his return trip, and was standing outside of his house on his own snow and ice-covered driveway. All activity related to his therapy appointment had ended. The injury Claimant sustained at home was not causally related to the accepted work injury

Affirmed.

PENALTIES

Medical Revenue Associates v. Sue Ellen Kanefsky (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 22, 2023

Issue:

Whether the WCJ abused its discretion on awarding a penalty as Claimant’s most recent penalty petition, should have been dismissed?

Background:

Claimant, a medical biller, sustained a disabling work-related injury when she fell on black ice in Employer’s parking lot in 2015. She filed a claim petition in 2017, which Employer contested. A WCJ granted her claim petition in 2019. The WCJ also granted Claimant’s penalty petition based on Employer’s failure to timely file responsive documents with the Bureau of Workers’ Compensation (Bureau) when it had actual notice that Claimant had been injured. Shortly thereafter, in 2019, Employer’s insurer drafted a third-party settlement agreement relating to Claimant’s $650,000 resolution of a third-party claim arising from the 2015 incident. The agreement, which was never finalized because Claimant did not sign it, did not include an accrued lien amount based on wage benefit payments already made by Employer. The agreement indicated that after deduction of attorneys’ fees and litigation expenses from the third-party recovery, $370,988.66 would remain against which Employer could secure a subrogation interest. Employer’s calculations indicated that it would be responsible for 42% of Claimant’s future benefits until its subrogation lien, the amount of which was unspecified in the document, was fully recovered. The parties agreed that Employer could refrain from payment of benefits based on the 2019 WCJ decision until after a voluntary mediation concluded. The mediation in early March 2019 was not successful and Claimant filed a second penalty petition on alleging that Employer failed to pay benefits in accordance with the 2019 WCJ decision. Employer began making payments to Claimant but unilaterally deducted amounts representing its subrogation interest. Employer subsequently filed petitions formally asserting its subrogation interest without indicating a specific amount that it had expended or sought to recover. In 2019, the WCJ issued an interlocutory order which directed Employer to pay Claimant’s due and outstanding benefits, but deferred payment of the penalty until the pending petitions were resolved. Claimant subsequently filed a third penalty petition, alleging that Employer still had not paid Claimant all the past benefits due and had wrongly reduced Claimant’s ongoing benefits unilaterally. In 2020, the WCJ issued a decision resolving Employer’s subrogation petitions and Claimant’s first and second penalty petitions for nonpayment. The WCJ denied Employer’s subrogation petitions, ordered Employer to pay past due benefits as well as ongoing benefits, both without a subrogation deduction, and granted Claimant’s first and second penalty petitions for nonpayment. Employer appealed this decision to the Board and requested supersedeas. The Board issued a supersedeas order in 2020 stating that Employer could defer payment of any outstanding penalties pending the Board’s merits decision but denying Employer’s request in all other respects.
Employer began paying Claimant’s benefits without subrogation deductions but did not pay Claimant any of the amounts it previously deducted. While Employer’s appeal was pending before the Board, Claimant filed another penalty petition. Employer argued that Claimant’s most recent 2020 penalty petition was precluded because there was no “new” misconduct alleged against Employer. In a 2021 decision, which underlies this appeal, the WCJ concluded that Claimant had successfully asserted new misconduct and imposed a 50% penalty against Employer. On June 3, 2021, just after the 2021 WCJ decision was issued, the Board issued its decision on Employer’s appeal of the WCJ’s 2020 decision.
The Board concluded that the WCJ had no basis to deny Employer’s petitions asserting subrogation rights and reversed the WCJ in that respect and remanded to the WCJ to determine the amount of Employer’s subrogation lien. The Board also vacated the 2020 WCJ’s award of penalties, directing the WCJ on remand to recalculate any outstanding penalties. On November 17, 2021, the Board issued its decision resolving Employer’s appeal of the 2021 WCJ decision, concerning Claimant’s most recent 2020 penalty petition. The Board affirmed, agreeing that Employer failed to comply with the Board’s 2020 supersedeas order.

Holding:

There is no exception for subrogation in the law requiring employers to pay benefits in the absence of an agreement or order allowing them to evade that obligation. As such, an employer generally may not engage in “self-help” to reduce or withhold benefits payments. Noncompliance in this regard may, or may not, warrant a penalty, depending upon the facts. An employer’s decision to unilaterally reduce a claimant’s benefit payments to satisfy its subrogation lien technically violates the Act and may be subject to a penalty. The Courts have consistently treated the employer’s subrogation calculations as at least relevant to evaluating its overall conduct. An employer may be able to avoid a penalty, or have a penalty reversed, if a WCJ ultimately comes to the same conclusion as the employer in terms of the amount and terms of recoupment. However, where an employer unilaterally reduces payments and makes the correct calculations but commits additional misconduct, such as failing to properly assert subrogation rights so that the WCJ may properly calculate amounts due to the claimant, a penalty is more likely to be upheld. The matter is fact-sensitive and within the WCJ’s discretion. The WCJ, in the decision here under review, granted Claimant’s third penalty petition for nonpayment.
While, correct indemnity payments had resumed, the Employer did not pay Claimant the amounts it had previously deducted from her benefits payments, in the apparent belief that its subrogation claim and right to reduce payments would ultimately be vindicated. This was contrary to the Board’s 2020 supersedeas order. At the time the Board issued its 2020 supersedeas order, Employer had been ordered by the WCJ, in three previous decisions, to pay Claimant the full amount due without subrogation deductions. Rather than paying upfront and seeking reimbursement from the Supersedeas Fund after the fact, Employer assumed the risk that if it did not pay Claimant back for its previous deductions, it would be subject to a penalty. The imposition of a penalty is always within the WCJ’s discretion, and in the context of an employer’s unilateral subrogation deductions, the Court has upheld penalties where the WCJ determined some additional misconduct on the employer’s part, even if the employer’s calculations were ultimately correct. Here, the most recent WCJ order found that Employer violated the Board’s 2020 supersedeas order by failing to pay Claimant the back due amounts Employer had deducted from Claimant’s benefits, which had also been ordered in the previous WCJ opinions. Employer’s conduct here was egregious considering its disobeying repeated orders specifically directing it to repay the deducted amounts. The WCJ therefore did not abuse discretion by imposing the penalty.

Affirmed.

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES

03/01/2023 – 03/29/2023

TERMINATION’S EFFECT ON ELIGIBILITY FOR BENEFITS

Judy Thorpe v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-0689-20; 2023 WL 2395067
Decided: 03/08/2023

Background:

Thorpe began working for the Juvenile Justice Commission (JJC) in April 2005. Following some incidents, in January 2008 the JJC directed Thorpe to undergo a fitness for duty evaluation. She refused to participate, and she was removed from employment for that reason in August 2008. Thorpe then pursued a series of legal actions following her removal, including her union filing a grievance, and an action in the Law Division for discrimination and unlawful retaliation, both of which upheld her termination. In 2018, Thorpe filed an application with the Board for ordinary disability benefits. The Board determined that her alleged disability was not the reason she stopped working in August 2008, and instead the record shows that she was not permitted to apply for disability retirement because she had been involuntarily removed from her employment. The Board determined that Thorpe was not eligible to apply for ordinary disability retirement benefits. She appealed, and an August 2020 decision concluded that because the JJC removed Thorpe from employment on disciplinary grounds, she was not eligible to apply for pension benefits. Thorpe appealed. Thorpe argues that the JJC should not have been permitted to require her to submit to a fitness for duty exam, and alternatively that she left her position because of an alleged disability.

Holding:

The court stated that Thorpe’s arguments on appeal lack sufficient merit to warrant a written opinion. The court affirms for the reasons stated in the Board’s August 20, 2020 decision. The court held that there was no basis for disturbing the Board’s well-reasoned determination that Thorpe was not eligible for ordinary disability benefits. They stated that the record established that the JJC removed Thorpe from employment, and she was not successful in her challenges to that decision. The court also held that Thorpe did not leave her employment because of an alleged disability.

Affirmed.

EXPERT OPINIONS

Faye Brown v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-0021-21; 2023 WL 2618718
Decided: 03/24/2023

Background:

Brown worked as a Family Services Specialist II for the New Jersey Department of Children and Families in the Division of Child Protection and Permanency (DCPP). While serving as a DCPP family specialist, petitioner had five accidents resulting in injury; a knee injury in 2013 requiring surgery, a subsequent shoulder injury, another knee injury in 2014, a back injury in 2017, and a fall in 2018 when she injured her knees, hips, and shoulder. Her job duties included trips to the office and court, carrying large client files, transportation of children to appointments, making home visits to client families, supervision of visits, carrying out child removals, finding placement homes for children, physical removal of children’s belongings, transportation of children for evaluation, and transportation of parents to treatment facilities. Petitioner applied for accidental disability retirement benefits. The Board denied her application and petitioner appealed, now seeking ordinary disability benefits. An Administrative Law Judge (ALJ) heard the matter on September 1, 2020. Petitioner testified, as did Dr. David Weiss as an expert on her behalf, and Dr. Arnold Berman as an expert on behalf of the Board. The ALJ’s opinion found Dr. Berman presented a more persuasive opinion as to Petitioner’s permanency and disability and opined that petitioner’s subjective complaints did not cause her to be permanently and totally unable to perform her job duties. The Board adopted this decision as final. Petitioner appealed, arguing that the Board’s final decision was arbitrary, capricious, and unreasonable, and she met her burden of proving she is totally and permanently disabled.

Holding:

The court stated that they would consider two issues: “[c]ould the Board’s finding that petitioner was not totally and permanently disabled have been reached in sufficient credible evidence in the record? If not, did petitioner show by a preponderance of the credible evidence that she was totally and permanently disabled?” The court stated that in reaching its conclusions, the Board gave greater weight to Dr. Berman’s opinions than Dr. Weiss’s opinion, however, neither physician treated the petitioner, and instead relied on her voluminous medical history and her subjective complaints. Dr. Berman also premised his opinion that petitioner could work on the premise that her job was sedentary. The court states that the record is full of evidence that shows petitioner’s job was anything but sedentary. The court holds that based on the fact that Dr. Berman’s opinion that petitioner could work was based on a flawed assumption, there was insufficient credible evidence in the record to support the Board’s final decision. The court further concluded that the Board was arbitrary, capricious, and unreasonable in denying ordinary disability benefits. The court stated that the record shows there are no further issues of fact to be developed on remand that could shed further light on petitioner’s disability, and therefore the decision of the Board is reversed, and the court directs it to enter a finding of ordinary disability benefits for the petitioner.

Reversed.

IRREVOCABLE RESIGNATION’S EFFECT ON ELIGIBILITY FOR BENEFITS

Christopher Slimm v. Board of Trustees, Police and Firemen’s Retirement System
Superior Court of New Jersey, Appellate Division No. A-3183-20; 2023 WL 2604113
Decided: 03/23/2023

Background:

Slimm worked as a police officer for Winslow Township. In October 2018, he applied for accidental disability retirement benefits, alleging he suffered from PTSD following an incident where a suspect opened fire during a vehicle pursuit. Slimm refused to return to work after being ordered to in December 2018, and a disciplinary action was served on Slimm charging him with several offenses including failure to return to work. On January 29, 2019, Slimm and the Township entered into a written settlement, wherein the Township would dismiss the disciplinary action in return for Slimm’s resignation and agreement to not seek re-hire or reinstatement. The Board advised Slimm that it would not process his application for accidental disability retirement benefits, stating because he left his employment based on the voluntary settlement agreement, he was not eligible for a disability pension. Slimm appealed, and the Board sent the matter to an Administrative Law Judge (ALJ) for consideration. The Board filed a motion for summary decision because the facts were not in dispute and the question presented was solely one of law. The ALJ granted the Board’s motion, and the Board adopted the ALJ’s decision. Slimm followed with this appeal, arguing that the Board erred by failing to consider his application for accidental disability retirement benefits.

Holding:

The court analogizes the instant case to the case of Cardinale. In Cardinale, the appellant voluntarily and irrevocably resigned from his position as a police officer after being suspended for a positive drug test. This court held that when a PFRS member voluntarily and irrevocably resigns from active service, they are ineligible for disability retirement benefits and his claimed disability was irrelevant because an officer who irrevocably resigns cannot legally be returned to that position if he ever recovers from his disability, and thus is not eligible to apply for benefits. In this case, it is undisputed that Slimm irrevocably resigned from his position as a police officer, which automatically made him ineligible for disability retirement benefits. The court held that Slimm’s argument that he resigned due to his disability does not require a different result for two reasons. First, an irrevocable resignation automatically made him ineligible for retirement benefits. Second, even assuming a resignation based on a disability would make him eligible to apply for benefits, he did not sustain his burden of proving his resignation was based on his alleged disability, and the evidence including the settlement document he signed, establish it was to avoid litigating the pending disciplinary charges. Finally, the court held that there is no statutory basis for Slimm’s argument that he could satisfy NJSA 43:16A-8(2) by agreeing to waive his right to disability pension benefits if he were to recover from his disability, and the court rejects that argument.

Affirmed.

DISCRIMINATION CLAIMS

Ralph Nunez v. Middlesex County College
Superior Court of New Jersey, Appellate Division No. A-0484-21; 2023 WL 2592906
Decided: 03/22/2023

Background:

Plaintiff began worked at Middlesex County College (College) beginning in 1996. On September 1, 2017, plaintiff reported a work-related injury to his left shoulder and was on leave until April 11, 2018. On April 19, the College lodged a disciplinary complaint against him for working elsewhere while on workers’ compensation, theft, falsification of records, possession of a controlled dangerous substance, and violations of the public trust. A hearing was held, and plaintiff was ultimately terminated. Plaintiff answered no on his employment application in 1996 where it asked if he had ever been convicted of a crime. He was convicted of conspiracy to possess CDS in 1997, however, nothing in the College’s policies or the CNA required an employee to self- report a criminal conviction. Surveillance was conducted of plaintiff for seventeen days in September 2017 after his work injury. Sixteen of those days showed no involvement in work-related activity, but on the seventeenth day, plaintiff was observed arriving at a private residence that appeared to be under renovation, retrieving something from his car, and entering the residence. Plaintiff filed a complaint alleging that the College violated New Jersey’s Law Against Discrimination (LAD) and the anti-retaliation provision of the Workers’ Compensation Act (WCA). The Law Division judge found that the termination was not motivated by retaliation, instead it was motivated by a finding by the College that their employee engaged in fraud. He granted the College’s motion for summary judgment and dismissed plaintiff’s complaint. Plaintiff appealed and argues that the judge failed to conduct any analysis and substituted his own opinion for that of the trier of fact. Plaintiff contends that applying proper summary judgment standards and relevant precedent, he did establish a prima facie case of discrimination under the LAD and WCA.

Holding:

This court outlines the requirements to establish prima facia cases of discriminatory discharge, disability discrimination, and retaliation, and held that the motion record contains sufficient evidence of a prima facie claim under all three LAD causes of action, though his failure to accommodate claim is limited. For the purposes of defeating summary judgment, the court held that plaintiff produced sufficient evidence on the failure to accommodate claim limited to the period between when he was able to return to light duty, and when he did return to work without restrictions. The College’s argument is that plaintiff was terminated for legitimate non-discriminatory reasons namely that he falsified his employment applications and worked elsewhere while on medical leave. The court held that providing plaintiff with the favorable evidence and inferences in the motion record, he carried his burden for purposes of defeating summary judgment.The court held that plaintiff had not been convicted of a crime when he applied for a position at the College in 1996, so his answer on the application was truthful, and the College has not demonstrated that plaintiff was obligated to notify it of his later convictions. Additionally, the court held that there are disputed material facts as to whether plaintiff was working at another location while on leave.The court reversed the order granting the College summary judgment on plaintiff’s LAD claims and remanded the matter for trial on plaintiff’s allegations of disability discrimination, failure to accommodate, and retaliation. The court affirmed the dismissal of plaintiff’s LAD discrimination claim based on perceived disability.

Affirmed in part, Reversed in part.

Assembly Bill No. 1474/S5ll

New Jersey governor Phil Murphy signed Assembly Bill A1474/S511 into law on February 6, 2023. This bill addresses temporary workers and establishes employment protections for those workers.

Definitions
This bill defines temporary laborers as a person who contracts for employment in a designated classification placement with a temporary help service firm.
Designated classification placement means an assignment of a temporary laborer by a temporary help service firm to perform work in any of the following occupational categories as designated by the Bureau of Labor statistics of the United States Department of Labor:

• Other Protective Service Workers
• Food Preparation and Serving related Occupations
• Building and Grounds Cleaning and Maintenance Occupations
• Personal Care and Service Occupations
• Construction Laborers
• Helpers, Construction Trades
• Installation, Maintenance, and Repair Occupations
• Production Occupations
• Transportation and Material Moving Occupations
• Any successor categories as the Bureau of Labor Statistics may designate

Temporary help service firm is defined as any person or entity that operates a business which consists of employing individuals directly or indirectly for the purpose of assigning the employed individuals to assist the firm’s customers in handling temporary, excess, or special workloads, and who, in addition to the payment of wages or salaries to the employed individuals, pays federal social security taxes and State and federal unemployment insurance; carries workers’ compensation insurance as required by State law; and sustains responsibility for the actions of the employed individuals while they render services to the firm’s customers.

Requirements for Records
This bill requires a temporary help service firm to provide the temporary laborer a statement in English and in the language identified by the employee as their primary language containing the following information:

• the name of the temporary laborer
• the name, address, and phone number of the temporary help service firm, or the contact information of the agent facilitating the placement; its workers’ compensation carrier; the worksite employer or third party client; and the Department of Labor and Workforce Development
• the name and nature of the work to be performed
• the wages offered
• the name and address of the assigned worksite of each temporary laborer
• the terms of transportation offered to the temporary laborer (if applicable)
• a description of the position and whether it requires any special clothing, protective equipment or training
• whether a meal or equipment is provided
• the schedule and length of the assignment
• the amount of sick leave to which temporary laborers are entitled and the terms of use

The temporary help service firm is also required to keep records relating to sending one or more persons to work as temporary laborers, including:

• the name, address, and phone number of the third party client, including each worksite
• for each laborer: the name and address, specific location sent to work, type of work performed, number of hours worked, hourly rate of pay, and the date sent
• the name and title of the individual(s) at each third party client’s place of business responsible for the transaction
• any specific qualification of a temporary laborer
• copies of all contracts with the third part client and copies of all invoices
• copies of all employment notices
• the amount of any deductions taken from the temporary laborer’s compensation for food, equipment, withheld income tax, withheld Social Security deductions, and all other deductions
• verification of the actual cost of any equipment or meal charged to the temporary laborer
• the race, ethnicity, and gender of each temporary laborer or applicant
• any additional information required by the commissioner

The temporary help services firm also must provide temporary laborers with a detailed itemized statement on their paycheck stub or a form approved by the Commissioner listing the contact information for each third party client where the laborer worked, the number of hours worked at each third-party client, the rate of pay including overtime or bonuses, the total earnings for the pay period, the amount of each deduction, and any additional information required by the commissioner.

Rules Regarding Pay and Transportation
A temporary help service firm or third-party client, or contractor or agents of either, are prohibited from charging a fee to a temporary laborer to transport them to or from the designated work site.

A temporary staffing firm must hold the daily wages of the temporary laborer and make weekly, bi-weekly, or semi-monthly payments at the request of the temporary laborer.

A temporary services firm cannot charge a temporary laborer for cashing a check issued by the temporary help service form. Additionally, the total amount deducted for meals and equipment cannot reduce the temporary laborer’s earnings to fall below the state or federal minimum wage, whichever is greater. A temporary laborer ego is contracted by a temporary help services firm to work at a third-party worksite who is not utilized by the third-party client shall be paid as minimum of 4 hours of pay at the agreed upon rate.

A temporary help service firm cannot restrict the right of a temporary laborer to accept a permanent position with a third party client, restrict the right of the third party client to offer employment to a temporary laborer, or restrict the right of a temporary laborer to accept a permanent position. For any other employment.

This bill requires temporary staffing firms to pay temporary laborers assigned to work for a third-party client the same average rate of pay and equivalent benefits as a permanent employee performing the same or similar work of the third-party client, the performance of which requires equal skill, effort, and responsibility, and performed under the same working conditions.

Penalties
It is a violation for a temporary help services firm to retaliate against a temporary laborer for exercising any rights granted under this bill. The termination or disciplinary action by a temporary help services firm against a temporary laborer within 90 days of the person’s protected rights under this bill shall raise a rebuttable presumption of having done so in retaliation for the exercise of their rights, and such a retaliation will subject the temporary help services firm to civil penalties.

A temporary laborer alleging retaliation the relief afforded under this bill is the greater of all legal or equitable relief available, or liquidated damages equal to $20,000 per incident of retaliation, as well as reinstatement, attorney’s fees and costs.

This bill also provides to individuals a right of civil action in Superior Court if they are aggrieved by a violation of these rights.

The right of an aggrieved person to bring an action under this section terminates upon the passing of six years from the final date of employment by the temporary help service firm or the third party client or upon the passing of six years from the date of termination of the contract between the temporary help service firm and the third party client.

4866-4952-3546, v. 1

PA Pot Reimbursement Summary 2

ANTHONY J. BILOTTI & ASSOCIATES, LLC

 

Edward Appel v. GWC Warranty Corp. (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023

Issue:

Whether the Board erred by concluding that, based on the plain language of the Medical Marijuana Act (MMA), an insurer or employer cannot be required to pay for medical marijuana?

Background:

Claimant sustained a work-related herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease. Employer accepted Claimant’s injury via a Stipulation of Facts approved in a 2015 WCJ Decision. Claimant received extensive treatment for his work injury, including two lower back surgeries. Claimant continued to experience chronic low back pain and symptoms in his legs for which his doctor prescribed opioids. Claimant received a medical marijuana card and used medical marijuana while he was weaning himself off the opioids. The Claimant filed the Review Medical Petition seeking a determination that his use of medical marijuana was causally related to his work injury and an order directing Employer to reimburse him for the cost thereof. The WCJ partially denied the Review Medical Petition. The WCJ concluded that Claimant met his burden of proving that his use of medical marijuana was related to the accepted work injury, but that Claimant failed to prove that Employer must reimburse him for his out-of-pocket medical marijuana expenses pursuant to Section 2102 of the MMA, which does not require an insurer or health plan to provide coverage for medical marijuana. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.

Holding:

The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides, that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court then examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within Pennsylvania. Further, the MMA contains an immunity provision protecting patients from government sanctions. The Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. The MMA provides that nothing in the MMA shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. While a plain reading of the statute does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either. Specifically, Section 2102 of the MMA does not prohibit an insurer or health plan from reimbursing payment for medical marijuana. The plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” Thus, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. The General Assembly intended that covered patients have access to the latest medical treatments. Any other interpretation would lead to an unintended, absurd result. Thus, because Section 2102 of the MMA does not prohibit insurers from covering medical marijuana, the WC Act mandates employers to reimburse claimants for out-of-pocket costs of medical treatment which has been found to be reasonable and necessary for their work-related injury. The WCJ concluded that the medical marijuana use was causally related to the work injury, therefore, the Employer was required to reimburse Claimant for his out-of-pocket costs under the WC Act. Finally, since Employer is not prescribing marijuana, but only reimbursing Claimant for his lawful use thereof, Employer is not in violation of the Federal Drug Act.

Reversed.

DISSENTING OPINION BY JUDGE FIZZANO CANNON

In a dissenting opinion, Judge Cannon, joined by Judge McCullough, asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA legalized medical marijuana for the first time and in a limited manner; in doing so, it made clear that it was not to be construed to require insurance coverage of medical marijuana. This makes sense, since medical marijuana has not yet been approved by the FDA as safe and effective for use in medical treatment, and its use is not legal under federal law. The legislature, not the courts, must effect any change in the MMA’s stated policy and the balance struck regarding insurance coverage. Therefore, this Court must affirm the Board’s holding that the MMA cannot be read to mandate reimbursement for prescribed medical marijuana provided to WC claimants. The provider necessarily violates federal criminal law by distributing or dispensing medical marijuana. Where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.

©Bilotti Law Associates 2023

4879-1352-6360, v. 1

PA Pot Reimbursement Summary

ANTHONY J. BILOTTI & ASSOCIATES, LLC

 

Teresa L. Fegley, as Exec. of the Est. of Paul Sheetz v. Firestone Tire & Rubber (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023

Issues:

(1) Whether Section 2102 of the MMA applies to WC carriers and overrides the requirements of the WC Act and the Board’s Regulations that mandate insurers pay for/reimburse the cost of medical treatment that is reasonable, necessary, and related to an accepted work injury? (2) Whether the Board erred by concluding that Section 2102 of the MMA precludes reimbursement for medical marijuana to a claimant using medical marijuana to treat an accepted work injury when it has been determined that such treatment is related to the work injury and is reasonable and necessary? (3) Whether reimbursement of Claimant’s medical marijuana treatment would cause the WC carrier to violate federal law?

Background:

Claimant sustained an injury during the course and scope of his employment with Employer. As a result, thereof, Claimant received medical treatment which included two back surgeries. Due to the severe pain in his back and legs, Claimant’s doctor prescribed opiates and narcotics, including OxyContin. Decades later, at the recommendation of his doctor, Claimant began taking medical marijuana in 2019, with the hope of eliminating the need for the opiates and narcotics he had been taking. Medical marijuana afforded Claimant pain relief and reduced his need for the opiates and narcotics. As a result of taking medical marijuana, Claimant weaned himself off Diazepam and OxyContin. In 2019, a UR determination declared that Claimant’s medical marijuana use was reasonable and necessary. Subsequently, Claimant filed a Penalty Petition, alleging that Employer violated the WC Act by failing to pay for his medical marijuana treatment, despite that the UR Determination declared that such treatment was reasonable and necessary. The WCJ denied the Penalty Petition, concluding that Claimant failed to prove that Employer’s refusal to pay for the medical marijuana treatment violated the WC Act. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.

Holding:

The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court also examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within this Commonwealth. Further, the MMA contains an immunity provision protecting patients from government sanctions. Moreover, the Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. As a preliminary matter, the Court held that the Employer did not waive Section 2102 of the MMA as a defense because Employers had raised such matters as a defense below. The Court also noted that, consistent with the rules of statutory interpretation, given that Worker’s Compensation carriers are insurers under the Insurance Law, they must also be held to be insurers for purposes of the MMA, and that the provisions of the MMA apply to W.C. carriers. Further, the plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” While the MMA mandates that nothing in the MMA shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law, “reimbursement” would not cause the W.C. carrier to violate federal law, or be at risk of facing federal prosecution, because, section 841(a) of the Federal Drug Act only provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Reimbursing Claimant for his out-of-pocket expenses for his lawful use of medical marijuana as a reasonable and necessary treatment for his work injury would not require Employer’s W.C. carrier to do any of the above prohibited acts. Therefore, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. In support of this holding, the Court also noted that the MMA specifically mandates that no medical marijuana patients shall be denied any rights for lawful use of medical marijuana and that the WC Act provides employees a statutory right to WC medical expenses that are reasonable and necessary to treat a work injury.

Reversed and Remanded.

CONCURRING AND DISSENTING OPINION BY JUDGE FIZZANO CANNON

In a dissenting opinion, Judge Cannon, joined by Judge McCullough, concurred in the majority’s conclusion that Employer did not waive its ability to assert a defense of illegality. However, the dissent asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA, relating to insurers, provides that nothing in the act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. Therefore, the plain language of the MMA does not require reimbursement for medical marijuana prescribed to a claimant to treat a work injury. The MMA does not expressly address “reimbursement” of medical marijuana costs, but rather, provides that the MMA cannot be construed to require an insurer to provide “coverage” of such costs. “Coverage” and “reimbursement” are two sides of the same coin and it makes no sense for Claimant to argue that reimbursement may be required where coverage may not. As for the federal Controlled Substances Act’s provision that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, an insurer reimbursing for medical marijuana costs under state law could be subject to federal prosecution, as either an aider/abettor or an accessory after the fact. The provider distributes and/or dispenses medical marijuana and necessarily violates federal criminal law by doing so. Further, the Court has previously held that, where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.

©Bilotti Law Associates 2023

4893-6921-1992, v. 1

CASE SUMMARIES 1/27/2023 – 2/28/2023

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

STATUTORY EMPLOYMENT

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

Issue:

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

Background:

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

Holding:

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

YELLOW FREIGHT MOTIONS

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

Issue:

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

Background:

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

Holding:

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

Reversed.

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

IMPAIRMENT RATING EVALUATIONS

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

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

Issue:

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

Background:

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

Holding:

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

MEDICAL FEE REVIEWS

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

Issue:

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

Background:

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

Holding:

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

Reversed.

SUFFICIENCY OF THE WCJ’S FINDINGS AND CONCLUSIONS

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

Issues:

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

Background:

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

Holding:

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

Vacated and Remanded.

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

JUDICIAL DISCRETION

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

Issues:

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

Background:

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

Holding:

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

Affirmed.

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

SUBROGATION – THE RIGHT TO INTERVENE

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

Issue:

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

Background:

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

Holding:

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

Appeal Quashed.

DISSENTING OPINION

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

EXCLUSIVITY – LATENT OCCUPATIONAL DISEASES

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

Issue:

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

Background:

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

Holding:

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

Affirmed. Case remanded to the trial court.

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

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

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

Issues to be decided:

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

 

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

SUBSTANTIAL CONTRIBUTING FACTOR STANDARD

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

Background:

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

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

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

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

Holding:

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

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

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

Reversed.

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

Background:

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

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

Holding:

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

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

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

Affirmed.

ALLOCATION OF FAULT

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

Background:

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

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

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

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

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

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

Holding:

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

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

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

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

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

Affirmed in part, Reversed in part.

CASE SUMMARIES 12/22/2022 – 1/25/2023

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

IMPAIRMENT RATING EVALUATION

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

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

Issue:

Whether the retroactive application of Act 111 is unconstitutional?

Background:

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

Holding:

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

Affirmed.

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

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

Issue:

Whether Act 111, relating to IREs, is unconstitutional?

Background:

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

Holding:

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

CLAIM PETITION – BURDEN OF PROOF

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

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

Background:

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

Holding:

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

Affirmed.

REINSTATEMENT PETITION – BURDEN OF PROOF

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

OCCUPATIONAL DISEASE

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

Issues:

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

Background:

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

Holding:

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

Affirmed.

JUDICIAL DISCRETION

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

REIMBURSEMENT – OF AN OVERPAYMENT

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

MUNICIPAL LAW – PENSION FUND REIMBURSEMENT

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

Issues:

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

Background:

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

Holding:

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

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

Affirmed.

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

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

BURDEN OF PROOF

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

Background:

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

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

Holding:

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

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

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

Affirmed.

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

PENNSYLVANIA WORKERS’ COMPENSATION CASE SUMMARIES

12/01/2022 – 12/21/2022

MEDICAL FEE REVIEW

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

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 15, 2022

Issue:

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

Background:

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

Holding:

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

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

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

Affirmed.

 

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

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 15, 2022

Issue:

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

Background:

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

Holding:

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

Affirmed.

MODIFICATION BASED UPON JOB AVAILABILITY

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

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

Issues:

Whether the WCJ erred in granting Employer’s modification?

Background:

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

Holding:

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

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

Affirmed.

Lower Moreland Township v. John MacDonald (WCAB)

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

Issues:

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

Background:

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

Holding:

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

Affirmed.

JUDICIAL DISCRETION

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

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

Issues:

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

Background:

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

Holding:

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

Affirmed.

Columbia County Commissioners v. Kristie Rospendowski (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 1, 2022

Issue:

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

Background:

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

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

Holding:

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

Affirmed.

NOTICE AND VOLUNTARY RETIREMENT

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

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 2, 2022

Issues:

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

Background:

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

Holding:

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

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

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

Affirmed.

COURSE AND SCOPE OF EMPLOYMENT

Lemont Blackmon v. Sodexo Global Services (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: December 7, 2022

Issue:

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

Background:

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

Holding:

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

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

Affirmed.

IMPAIRMENT RATING EVALUATIONS

Jeffrey Chamberlin v. Commonwealth of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum

Decision Decided: December 6, 2022

Issues:

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

Background:

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

Holding:

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

Affirmed.

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

Commonwealth Court of Pennsylvania – Unreported Memorandum Decision

Decided: December 9, 2022

Issue:

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

Background:

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

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

Holding:

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

Affirmed.

Wendy Johnston v. Sealed Air Corporation (WCAB)

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

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

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

Donald Stevenson v. City of Philadelphia (WCAB)

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

Issue:

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

Background:

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

Holding:

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

Affirmed.

EMPLOYMENT RELATIONSHIP – INDEPENDENT CONTRACTOR

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

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 1, 2022

Issue:

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

Background:

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

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

Holding:

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

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

Affirmed.

STATUTE OF LIMITATIONS

Sueanne Keim v. PMC Pinnacle Hospitals (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 12, 2022

Issue:

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

Background:

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

Holding:

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

Affirmed.

NEW JERSEY WORKERS’ COMPENSATION CASE SUMMARIES

12/01/2022 – 12/23/2022

BURDEN OF PROOF

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

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

Decided: 12/16/2022

Background:

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

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

Holding:

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

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

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

Affirmed.

CAUSATION & FIDUCIARY DUTY

Holm v. Purdy

Supreme Court of New Jersey 2022 WL 17587788

Decided: 12/13/2022

Background:

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

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

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

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

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

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

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

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

Holding:

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

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

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

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

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

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

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

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

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

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

Remanded.

AWARD OF FEES

Garzon v. Morris County Golf Club

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

Decided: 12/23/2022

Background:

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

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

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

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

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

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

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

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

Holding:

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

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

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

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

Reversed and Remanded.

4859-2012-8584, v. 1