Claimant appeals the WCAB's denial of his claim petition. Claimant, a tractor trailer driver for Employer, was involved in a motor vehicle accident in February 2009 unrelated to his employment. He missed a week of work, but returned to full duty. On February 13, 2011, claimant stopped working, claiming he was no longer able to do his job because of pain. He filed suit against the other driver in the non-work related motor vehicle accident, claimant he was no longer able to work as a result of his injuries in that accident. In October 2011, claimant filed a claim petition, alleging aggravation injuries, and seeking TTD from February 14, 2011 onward. The petition provided an incorrect address for Employer and as a result, the Answer was filed 43 days after the Bureau mailed the petition, apparently, with the Notice of Assignment. No evidence was submitted as to when or how Employer received the claim petition or notice of assignment.
Claimant testified, and submitted testimony of two medical witnesses. At the close of the hearing, the Yellow Freight issue arose. Claimant asserts that the Yellow Freight motion was raised at an earlier hearing, but it does not appear in the record. The WCJ stated on the record that the claim petition which was mailed to Employer was not returned, and the parties stipulated that the address on the claim petition was not Employer's address. The address was off by one number on the correct street. Claimant presented no evidence as to what or who is located at address to where petition mailed. The WCJ permitted the parties to brief the issue, however, there is no evidence that a brief was filed by either party.
Ultimately, the claim petition was denied. Claimant and his medical expert were found credible regarding the claimant's symptoms and injuries from the non-work related accident, but the WCJ rejected that Employer's job contributed to those injuries. The WCJ found Employer's medical expert credible that the claimant's condition was caused solely by the non-work related accident. The WCJ did not discuss or rule on Claimant's Yellow Freight motion.
The Commonwealth Court did not agree: the twenty day period starts to run when the Bureau serves the claim petition on Employer. The Bureau mailed the petition on November 3, 2011, but it was not sent to Employer's correct address. Under the Mailbox Rule and the Workers' Compensation Act, proof of mailing raises the presumption that the mailed item was received only if it is shown that the item was mailed to the party's correct address. The Bureau mailed the claim petition to an incorrect address, and therefore did not constitute service. The Court noted that Claimant attempted to submit evidence to the Appeal Board establishing that other correspondence sent to Employer at the incorrect address was received by Employer since that is the address of Employer's affiliate. The Board disallowed this evidence, and stated that it could have been obtained and submitted prior to the close of the record, but was not. The Commonwealth Court noted that, the additional evidence, even if permitted, would not support a finding that the claim petition was properly served on Employer, or that Employer received it.
Claimant also argued that he was denied an opportunity to submit evidence that Employer's answer was untimely because the WCJ led him to believe that he satisfied his threshold burden of proof. The Commonwealth Courted found no evidence in the record in this regard, and noted that the WCJ permitted both parties to brief the issue, which was not done. The parties stipulated that the claim petition was mailed on November 3, 2011, but the question of whether and when Employer received the mailing was left unresolved. Claimant had notice that he had not proven when Employer was served with the claim petition, and had an opportunity to submit further evidence, which he did not do. Employer was therefore not barred from challenging the facts pleaded in the claim petition, and the denial of the claim was affirmed.
Claimant, a truck driver, filed a May 1996 claim petition alleging disability as a result of brief chemical exposure on February 28, 1996. The WCJ dismissed the claim petition. In October 1997, Claimant filed another petition to review, seeking to recover medical expenses allegedly related to the February 1996 incident. This petition was also dismissed since it was determined that the claimant's complaints were caused by his non-work related hiatal hernia. On appeal, the Board affirmed, and Claimant did not appeal. Claimant continued to file additional petitions over time, seeking to re-litigate the same alleged injury. The Pennsylvania and United States Supreme Court declined to consider Claimant's appeals.
Claimant continued to file petitions, including the two instant petitions. Claimant filed a review petition and penalty petition, alleging that reasonable treatment for the February 28, 1996 injury had been refused, and bills were unreasonably refused payment. Employer, who had defended Claimant's numerous prior petitions, once again filed an Answer, and moved to dismiss the petition on the basis that Claimant's petitions were barred by res judicata and collateral estoppel, and were time barred by Section 315. The WCJ granted Employer's motion to dismiss and denied Claimant's review and penalty petitions, and the Appeal Board affirmed.
The Commonwealth Court, no stranger to Claimant's petitions, noted that in a prior decision it counted that Claimant had filed fifteen petitions based all on the same incident, which was determined in 1997 to not have caused injury or disability to claimant. In its prior decision, the Court found Claimant's actions to be obdurate and vexatious, and unfair and unduly burdensome to Employer. The instant appeal was now the fifth time that the claimant was before the Commonwealth Court on this claim, which brought his petition count to 17.
The Court affirmed the dismissal and, sua sponte, imposed sanctions on claimant and his counsel, awarding reimbursement of Employer's costs and counsel fees incurred to defend the appeal. These costs were to be borne jointly and severally against claimant and his counsel for obdurate and vexatious prosecution of a frivolous appeal.
Claimant appeals the suspension of his indemnity benefits on the basis that his earning power exceeded his average weekly wage. The Commonwealth Court affirmed the determination of weekly earning power but found the WCJ's calculation of the average weekly wage to be incorrect.
Claimant filed a claim petition against his employer, F.O. Transport in February 2008 for an injury occurring on December 27, 2007. A claim petition was later filed against Employer and UEGF for the same injury.
Claimant testified that he applied for a truck driver job in November, 2007. He testified that the owner of the trucking company said that he would be paid 30% of Employer's charges for a load to be delivered, and would earn $1100 to $1200/week. He testified that he was also told that he would be given an additional $100 per run to pay the lumpers (persons unloading the truck). Claimant testified that after the first run, he unloaded the truck himself and kept the $100 lumper fee. On the second run, the claimant paid lumpers with the $100 that he kept from the first run. On the third run, the claimant picked up a load in Philadelphia and proceeded to Massachusetts. In Massachusetts, the claimant started to unload the truck because he did not have enough money to pay a lumper. He was injured unloading the truck. This injury occurred 1.5 to 2 weeks after he was hired.
Employer, on the other hand, testified that the claimant was told in November 2007 that he could have five or six runs per week, earning $900 to $1000 weekly.
Despite claimant's physician's opinion that the claimant could not work, Employer's medical expert found claimant capable of returning to the truck driver position. The WCJ found claimant to be an employee, not an independent contractor, and unable to return to his pre-injury job. The WCJ determined that the claimant had no set work hours or work days, and the most he earned in one run was $270. The WCJ concluded that the average weekly wage could not be calculated under 309(d.2), which provides that if a claimant was employed for less than 13 calendar weeks, the average weekly wage was to be calculated using the hours the claimant was expected to work multiplied by the number of hours worked. The WCJ used an alternative method, and determined that the claimant had an average weekly wage of $405 ($270 x 3 runs) divided by 2 weeks of employment). The WCJ granted the claim petition, and ordered Employer and the Fund to pay $364.50 based on an average weekly wage of $405.
Claimant appealed, challenging the calculation of the average weekly wage. He argued that his average weekly wage should be $1100 to $1200 based on his testimony, or $900 to $1000 based on Employer's testimony. The Fund also appealed, arguing the WCJ erred in directing both Employer and the Fund to jointly pay when the Fund could be only secondarily liable.
The Appeal Board agreed with the WCJ's calculation, but held that the WCJ should have included the $200 lumper fees in his average weekly wage. The WCJ's decision was modified to make the Fund secondarily liable, and the Board remanded the matter back to the WCJ to recalculate the average weekly wage. In the meantime, the Fund filed a petition to modify or suspend benefits as of January 13, 2011, alleging that claimant had an earning power equal to or greater than his pre-injury average weekly wage. The WCJ held hearings on the remand and to address the Fund's petition.
On remand, the WCJ concluded that the $200 lumper fees were not included in the calculation of the average weekly wage.
The WCJ also found that the claimant had a weekly earning capacity of $360 to $440, based on Employer's medical expert testimony and Employer's vocational expert testimony. The WCJ rejected Claimant's vocational expert who opined that the available positions were not vocationally appropriate. With a weekly earning capacity of $440, and an average weekly wage of $405, Claimant's benefits were suspended. Claimant appealed.
The Commonwealth Court has held that the average weekly wage should reasonably reflect the economic reality of a claimant's recent pre-injury earning experience, with some benefit of the doubt to be afforded to the claimant in the assessment. Here, claimant was employed for two weeks. In the first week, there was no work available for the claimant, therefore, it was unfair to base his wages on two weeks of work. The Court concluded that the average weekly wage should be $810, which is the amount earned the second week of his employment. The Court did not disturb the WCJ's determination that the lumper fees were not part of wages because the WCJ did not accept claimant's testimony as credible that he unloaded the truck and kept the fees. Employer testified that the claimant was not supposed to unload the truck himself and could have requested and received expedited payment electronically. The WCJ found that the claimant did not use lumpers as he was instructed because he wanted to keep the money for himself. Accordingly, the lumper fees were not to be included in the wage calculation.
The Court upheld the earning power assessment on the basis of credibility, but remanded back to the WCJ to modify benefits based on an average weekly wage of $810 and weekly earning capacity of $440.
Claimant appeals the grant of her claim petition for a closed period, alleging the WCJ erred in terminating her benefits on the basis that she had an acute chemical exposure which had resolved.
Claimant was employed by the retail liquor store for over thirty years, and on the date of the robbery, worked as a general manager. On that date, claimant was in his office counting money when he saw a masked gunman approaching him with a drawn gun. The gunman showed a second gun and asked where the money was kept. With the gun to his head, claimant was instructed to give the gunman the money in the safe and lock box. Claimant also went onto the floor and took money from the register. Claimant, along with a coworker, was then tied to a chair. When the claimant showed anxiety, the gunman prodded the claimant with the gun to his head and asked if he was impatient. When the gunman left, claimant extricated himself and called the police and his superiors. He told HR that he needed to take time off due to the robbery. During his entire 30 year employment with Employer, claimant had never been robbed at work. He testified that a normal day never involved a masked gunman entering the store, sticking a gun to his head, and tying him up with duct tape.
Claimant was a licensed RN at long term care facility for four years. She began having breathing difficulty in April 2010. After treatment at a hospital with a nebulizer, the claimant improved, and returned to work after a few days. In May 2010, the claimant again experienced sneezing and coughing, and notice that housekeeping was waxing floors at that time. She reported the incident, went to the emergency room and received a nebulizer treatment and IV steroids. She was also referred to a pulmonologist. The claimant returned to work in June 2010. The claimant had a third episode in August 2010. Again, she received treatment in the emergency room, but her symptoms were worse than her previous episodes. She received nebulizer treatment and other medications, but she did not return to work for first employer.
Claimant's employer issued a medical only Notice of Compensation Payable accepting inflammation of the lungs from an allergic reaction to floor wax. In October 2010, the claimant filed a claim petition, seeking wage loss benefits for time missed in May and June, and wage loss benefits following the last day of work in August 2010. In response, Employer issued a Notice of Compensation Denial.
In November 2010, the claimant obtained a part time job with a second employer at lower earnings. At the job interview, the claimant told her employer of her reaction to floor wax. The second employer, which used same floor wax, changed their product. Claimant had no breathing problems with the second employer, but was earning less than her pre-injury employer.
In support of her claim petition, Claimant submitted a report from a toxicologist, who opined that the claimant suffered occupationally-induced asthma from exposure to a certain floor wax containing di-isocyanates. According to the toxicologist, the association between asthma induction and di-isocyanates is well known. The first employer submitted a medical report from a pulmonologist, who agreed with the diagnosis of occupational asthma secondary to di-isocyanate, directly related to work place exposure, however the claimant was fully recovered.
The WCJ found the claimant credible, and accepted the opinion of the toxicologist. The WCJ also accepted that the claimant was fully recovered, and had no pulmonary impairment or disability. In granting the petition, the claimant was awarded wage loss benefits for time missed from her first employer, and from August until November 2010 when the claimant began working for the second employer. Claimant was further awarded partial disability until February 23, 2011 when the IME determined the claimant was fully recovered.
On appeal to the Commonwealth Court, Claimant contends that the WCJ erred in terminating benefits since she is incapable of returning to pre-injury position because of allergic sensitivity to di-isocyanate, which results in continuous loss of earnings based on reduced earnings with the second employer. The Court agreed that since both medical experts opined that claimant's occupational exposure to di-isocyanate directly caused her asthma, and she must avoid contact with that agent in the future, she is precluded from returning to her pre-injury position with the first employer and is therefore not fully recovered. Accordingly, the Court remanded back to the WCJ for award of additional partial disability benefits based on her reduced earnings with second employer.
Claimant appeals the reversal of the decision granting her reinstatement and review petitions, and the holding that Quest did not waive its future subrogation rights under Section 319.
Claimant sustained a cervical strain on January 25, 2007 in a work-related motor vehicle accident, which was accepted by Employer. The third party case concluded, but claimant continued to receive wage loss benefits. In November 2010 the claimant filed a petition to reinstate/review compensation benefits based on the Third Party Settlement Agreement, alleging that Employer was paying benefits at an incorrect rate and taking an improper credit.
Claimant submitted the original Third Party Settlement Agreement, which provided for a current net lien of $18,969.21 following resolution of the third party suit for $100,000.00, and provided for Employer's waiver of its right of subrogation against future and past benefits for $19,500.00. Claimant testified that she misplaced the original Third Party Settlement Agreement, and her attorney sent her an unsigned copy in the mail. A corrected Third Party Settlement was later sent to her, which she understood also provided for waiver of Employer's right of subrogation against future and past benefits. The reason for the corrected Third Party Settlement Agreement was to account for an additional medical bill, as well as additional indemnity benefits not contained in the original Third Party Settlement Agreement. In the corrected Third Party Settlement Agreement, claimant agreed to pay the exact amount of the lien at that time, $19,818.14. The corrected Third Party Settlement Agreement, however, removed the sentence waiving Employer's future subrogation rights. The claimant testified, however, that it was her understanding after speaking with her counsel at that time (the claimant has new counsel) that the future right of subrogation was also waived.
WCJ found claimant's testimony credible to establish that the purpose of executing the corrected Third Party Settlement Agreement was to change the amount of indemnity paid. The WCJ also found that Claimant's payment of $19,818.14 was made in full satisfaction of Employer's right to subrogate against the third party settlement, and demonstrated Employer's intent to waive both past and future subrogation rights. Employer appealed.
The Appeal Board held that Claimant did not establish that Employer waived its future subrogation rights. Claimant's understanding of the corrected Third Party Settlement was not sufficient to support her burden. Additionally, Claimant presented no evidence to support her understanding, despite subpoenaing her former counsel's files. Claimant appealed the ruling.
The Commonwealth Court noted that original Third Party Settlement Agreement paid more than the net lien for waiver of past and future subrogation rights. The corrected Third Party Settlement Agreement, however, paid the precise amount of the lien, and provided no consideration for waiver of future subrogation rights. Furthermore, the express language waiving Employer's future subrogation rights had been deleted. In the absence of additional evidence supporting claimant's “understanding”, the Commonwealth Court held that the evidence supports that Employer did not waive its future subrogation rights, and the denial of claimant's petitions were affirmed.
This appeal involves a fee dispute between Claimant's prior counsel and current counsel. Prior counsel represented claimant for more than twenty years (for which he was receiving a 20% fee). For the majority of that time, between 1989 and 2012, there was no evidence that prior counsel performed any legal work for the claimant until April 2012, when settlement negotiations between prior counsel and Employer started. After unsuccessful negotiation spanning one and a half months, claimant's prior counsel withdrew the settlement demand. In June 2012, Claimant retained new counsel and sent prior counsel a letter terminating his representation.
In June 2012, current counsel filed a petition for review to resolve the dispute between himself and prior counsel as to which attorney was entitled to receive the attorney's fee. At a hearing, claimant testified that current counsel provided more legal services in four months than prior counsel had done in the previous ten years. Claimant's son also testified that there was frustration with prior counsel because claimant and her son were not allowed to see the paper trail of settlement negotiations, but were only permitted to view documents on counsel's computer while looking over his shoulder.
During the litigation of the review petition, claimant settled the claim by way of C&R. The attorney's fee was put into escrow pending the outcome of the review petition.
The WCJ awarded the attorney's fee to prior counsel up to the date of the settlement. The attorney's fee on the settlement was awarded to current counsel. Prior counsel appealed the award, asserting that because he represented the claimant for twenty-six years and was in the process of negotiating a settlement at the time of his discharge, the WCJ erred by awarding current counsel the entire fee derived from the C&R Agreement. The Commonwealth Court affirmed the WCJ's award, finding that the WCJ adequately balanced Claimant's right to select an attorney of her choice with both attorneys' expectations of receiving reasonable legal fees.
Employer appeals the WCJ's order granting the fatal claim of decedent's surviving wife and guardian of their children.
In November 2011, claimant filed fatal claim petition alleging that her husband died in October 2011 as result of injuries sustained in work related motor vehicle accident. Claimant listed herself as decedent's wife, and their daughters as dependents. The parties stipulated that the death was work-related, and that decedent's daughters were entitled to weekly death benefits. The parties did not resolve the issue as to whether the marriage was legal.
Claimant testified that she and decedent entered into a common-law marriage contract on June 12, 2004. Claimant is Native American, as was decedent. Claimant and decedent had a traditional Native American marriage ceremony in a field behind her parent's house, with no witnesses, after telling her parents of their intent to get married. She described the ceremony, which included the exchange of rings. After the private ceremony, both claimant and her husband went back to her parents, who were outside the house waiting for them. The parents took pictures of the couple, which was admitted into evidence, and showed both claimant and decedent wearing rings.
After the marriage ceremony, the claimant and decedent continued to live together, and held themselves out as husband and wife. They had two daughters. The claimant sometimes used a hyphenated last name, and sometimes used her husband's last name. Claimant and decedent did not file a joint tax return because they believed they needed to wait 7 years before their common law marriage was recognized by the IRS.
Claimant presented documentary evidence, including the coroner's report listing claimant as his wife, a rental agreement completed by both claimant and decedent, utility bills with their names, school district parental consent forms signed by claimant and decedent, many documents bearing claimant's "married" name, as well as the May 3, 2012 final decree from the Court of Common Pleas declaring claimant the surviving spouse of decedent, and June 2012 correspondence from the Register of Wills granting claimant letters of administration for the decedent's estate.
The WCJ found claimant's testimony and the documentary evidence credible, and entitled to benefits as surviving spouse.
The Appeal Board affirmed, and Employer appealed.
The Commonwealth Court noted that, effective January 24, 2005, common law marriage was statutorily abolished in Pennsylvania, and common law marriage contracted after January 1, 2005 was declared invalid. Common law marriages that were contracted on or before January 1, 2005 were undisturbed. Claimant was therefore required to prove that she and decedent entered into a common law marriage on or before January 1, 2005 to be entitled to death benefits.
The burden of proof requires the party claiming common law marriage to produce clear and convincing evidence of the exchange of words creating the marriage contract. If the exchange of words cannot be proven, but the party proves constant cohabitation and a reputation of marriage which is broad and general, a rebuttable presumption arises in favor of common law marriage.
Employer argued that the claimant's testimony was not clear and convincing evidence since it was proscribed by the Dead Man's Act, in which a surviving party cannot testify about actions of the dead party in matters where the surviving party may benefit in a way adverse to the decedent's estate. The Court determined that because Employer did not object to her testimony at the time of trial, Employer waived the issue. Even if the issue had been raised, the claimant's testimony was not adverse to the interests of the decedent's estate, and was therefore permitted.
Employer argued that the claimant's testimony was not clear and convincing evidence since it was proscribed by the Dead Man's Act, in which a surviving party cannot testify about actions of the dead party in matters where the surviving party may benefit in a way adverse to the decedent's estate. The Court determined that because Employer did not object to her testimony at the time of trial, Employer waived the issue. Even if the issue had been raised, the claimant's testimony was not adverse to the interests of the decedent's estate, and was therefore permitted.
Claimant's injury was described as traumatic brain injury with organic affective changes and persistent cognitive problems, particularly memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries. The WCJ denied the modification filed by Employer since the IRE, finding an impairment rating of 34%, was based upon the designated physician's diagnosis of traumatic brain injury, cervical herniated disk status post-surgery, and gait dysfunction. In reaching his conclusions, they IRE physician lumped several of claimant's injuries into three categories, which he then used to calculate the impairment rating. The WCJ rejected this "lumping" of diagnoses, and found that the doctor did not address all of the accepted diagnoses. Additionally, the WCJ found that the doctor did not examine the claimant with regard to the traumatic brain injury, but simply reviewed medical records. The physician was a pain management physician, and there was no indication that he was qualified to treat people with traumatic brain injuries on a consistent basis.
Employer appealed to the Appeal Board, which affirmed the WCJ's decision, finding no error in the WCJ's rejection of the IRE physician's testimony.
Employer appealed the award of specific loss of the hand. Claimant appealed the modification of benefits awarding an offset for Social Security (Old age) benefits.
Claimant was injured in January 2010 when he fell on ice. The injury was accepted as left shoulder and lumbosacral sprains. Claimant filed a review petition to include CRPS of the left upper extremity, cubital tunnel syndrome, and loss of use of the left hand. The petition was later amended to include a head injury. The parties stipulated to the additional diagnoses of CRPS and status post ulnar nerve release, but Employer denied that the head injury should be included, and continued to contest the specific loss claim.
In February 2010, the claimant began receiving Social Security benefits. In June 2011, Employer filed a modification petition, asserting that it was entitled to an offset for future benefits, and credit for benefits already received.
The WCJ denied the review petition for the head injury but awarded specific loss benefits. In so doing, the WCJ concluded that the claimant sustained specific loss separate and apart from his other work injuries, and was entitled to 335 weeks once his temporary total disability ends. The WCJ denied and dismissed the modification petition, finding that Employer failed to meet its burden entitling it to credit. On appeal, the Appeal Board reversed the denial of the modification petition, but affirmed in all other respects.
The Commonwealth Court noted that Claimant testified that he keeps his left arm at chest level at all times, and other than putting something between his chest and upper arm to hold it against his body, he cannot use his left arm at all.
Claimant's medical expert testified that claimant's left hand was functionless, his left elbow lacks functional range of motion, he has a stiff shoulder that goes along with the CRPS, and for the most part, the doctor thought claimant's left upper extremity was not functional. Employer's medical expert opined that claimant can use his left elbow and shoulder in an assistive capacity, but his main limitation is in his left hand, which he can use only for gross motor skills. He would have difficulty picking up a pencil, and would not be able to use a fork, knife or toothbrush with that hand without some adaptive device. These restrictions are permanent.
Employer claims that Claimant's medical expert's general references to claimant's “left upper extremity” rather than specifically to claimant's left hand means that there is no medical testimony that claimant has lost the use of his left hand for all practical intents and purposes. Since there is no provision for loss of use of the upper extremity/arm, there can be no award of specific loss. However, the Court noted that Claimant's medical expert testified that the claimant's hand was nonfunctional, and declared that claimant's left hand is functionless. Employer's expert testimony that claimant's restrictions are permanent is sufficient to establish permanency.
The Commonwealth Court looked to the definition of the hand as defined by the Pennsylvania Superior Court, which is defined as the arm up to, but not including, the elbow. Had claimant lost the use of his elbow or upper arm, he would have lost the use of his arm. If not, he has not lost the use of the arm, but lost the use of the hand. The injury was to the shoulder. Claimant's shoulder contusion resulted in CRPS of the left upper extremity, which caused his shoulder to stiffen, which led to decreased range of motion and caused his hand to become progressively atrophied and ultimately dysfunctional. The injury to the hand is therefore separate and distinct. Accordingly, the specific loss award was upheld.
With regard to the modification petition, Claimant argues that Employer is not entitled to a credit for Claimant's Social Security benefits because, although the benefits were received after his work injury, they were approved before the injury date.
Claimant applied for Social Security retirement benefits in 2009 as permitted by the Social Security Administration, which was before he turned 62. The November 2009 award notice approved claimant's application, stating that his entitlement started January 2010. He received his first Social Security Administration check on February 10, 2010. The court analyzed entitlement versus actual receipt. Since claimant applied for Social Security benefits in advance of his eligibility, he was entitled to benefits when he turned 62 on January 2, 2010, which was 18 days before the work injury. Because claimant was entitled to Social Security Retirement benefits prior to the work injury, Employer is not entitled to a credit and/or offset.
This is an unreported opinion from January 26, 2015, which is now designated as a reported opinion.
Claimant appealed the denial of her claim and penalty petition, and granting of Employer's termination petition.
Throughout the incident, claimant alleges that she was held very tightly with the gun to her back, and the gunman would squeeze her tightly as they moved through the office to make sure claimant did not get away. Once they reached the vault, claimant alleged that she was thrown on the ground and hog-tied.
Claimant sustained a work injury on March 7, 2011 as a warehouse worker. A Medical Only Notice of Temporary Compensation Payable accepted liability for medical treatment for left knee, left shoulder and left hand contusions. The Medical Only Notice of Temporary Compensation Payable also indicated that the 90 day investigation period began the day after the injuries (March 8, 2011) and ended on June 5, 2011. A Notice of Conversion was issued on June 13, 2011.
Employer then issued a second Notice of Temporary Compensation Payable on August 4, 2011 for a left labrum and bicep tear, and accepted wage loss. The Commonwealth Court speculated that it was possible that Employer was concerned that the new conditions were related to the work related contusions, and recognized that the converted Notice of Compensation Payable provided only for medical benefits and not for wage loss benefits. Employer, in this second Notice of Temporary Compensation Payable, indicated that the 90 day period began on July 20, 2011 and ended on October 17, 2011. The Notice of Temporary Compensation Payable also indicated it was accepting medical liability only, but it did provide for wage loss benefits. A subsequent corrected Notice of Temporary Compensation Payable indicated that Employer did not mean for the earlier Notice of Temporary Compensation Payable to be “Medical Only”.
Employer presented the testimony of its medical expert for the orthopedic injuries. Since he did not examine claimant until September, 2010, he would not opine that claimant suffered no physical injury, but stated that he would not attribute claimant's ongoing physical complaints to the event. Employer did not present evidence disputing that claimant had suffered a psychological injury, but instead offered testimony regarding Employer's security measures, procedures, and training of claimant, which claimant apparently did not follow.
On September 15, 2011, Employer issued a Notice Stopping Temporary Compensation, indicating that claimant decided not to accept liability. Employer also issued a Notice of Compensation Denial, indicating that Employer declined to pay wage loss based on the determination that the claimant had not suffered a loss of wages as a result of an already accepted injury. The Notice of Compensation Denial, however, identified the injuries as the contusion injuries for which Employer was already liable based on earlier converted May 2011 Notice of Compensation Payable.
In October 2011, Claimant filed a claim petition for a left rotator cuff tear, left knee injury, and left hip injury occurring on March 7, 2011. Claimant also filed a penalty petition, alleging misuse of Bureau documents. Employer, in turn, filed a termination petition.
The WCJ found Employer's expert credible, and found the claimant and his expert not credible. Claimant's injury was determined to be left knee, left shoulder and left hand contusions as reflected in the June 2011 converted Notice of Compensation Payable, but claimant was fully recovered as of January 16, 2012. The WCJ also determined claimant failed to establish that Employer owed any wage loss benefits or that she required any additional medical treatment. Additionally, the WCJ concluded that Employer violated the Act by issuing the second Notice of Temporary Compensation Payable and Notice of Compensation Denial, but awarded no penalties since Employer did not owe Claimant any benefits.
On appeal, Claimant argued that issuance of the second Notice of Temporary Compensation Payable (which Claimant contends converted to a Notice of Compensation Payable since Employer did not correctly identify the injuries listed in the second Notice of Temporary Compensation Payable) estopped Employer from denying liability for those injuries (left labrum and bicep tears for which it began payment of lost wages). Claimant also alleged that the WCJ erred in granting Employer's termination petition.
Claimant argues that, in the absence of statutory authority for an employer to issue more than one Notice of Temporary Compensation Payable, once a second Notice of Temporary Compensation Payable is issued with payment of compensation, such action results in a de facto acceptance of the injuries identified in the second Notice of Temporary Compensation Payable.
Employer argues that it was statutorily required to file the second Notice of Temporary Compensation Payable because Section 406.1(a) of the Act provides that the first installment of compensation shall be paid not later than the 21st day after Employer had knowledge of the claimant's disability – not injury. Pursuant to the Act, if an employer is uncertain whether the claim is compensable or is uncertain of the extent of its liability, the employer can begin compensation without prejudice and without admitting liability pursuant to Notice of Temporary Compensation Payable.
The Commonwealth Court held that the Act does not specifically allow or disallow the filing of a subsequent Notice of Temporary Compensation Payable, and Employer neither violated the Act nor is estopped from denying liability for the left labrum and bicep tear conditions. Once the initial medical only Notice of Temporary Compensation Payable converted to a Notice of Compensation Payable, Employer had accepted liability for medical costs for the left knee, left shoulder and left hand. After Employer received information that the claimant suffered disability as a result of the injury, it issued another Notice of Temporary Compensation Payable indicating that it would make payments for both medical and wage loss for a left labrum and bicep tear. However, Employer was not admitting liability for the second injury, as evidenced by the Notice of Compensation Denial and Notice Stopping within 90 days of issuing the Notice of Temporary Compensation Payable. Since the claimant did not have any lost time until July 19, 2011 and did not have a shoulder diagnosis that required surgery, there was no violation of the Act in issuing a second Notice of Temporary Compensation Payable and in issuing a Notice of Compensation Denial and Notice Stopping. The Act does not allow or disallow for the filing of subsequent temporary acceptance documents, therefore, there was no clear-cut violation nor was Employer estopped from denying liability.
This case is not like Mosgo, which held that payments in lieu of compensation is deemed an admission of liability. Mosgo predated the 1993 amendments which allowed for issuance of a Notice of Temporary Compensation Payable when liability is uncertain. When Mosgo was decided, a Notice of Temporary Compensation Payable was not a tool available for use by Employers. Mosgo, therefore, cannot support a conclusion that once an employer issues a Notice of Temporary Compensation Payable, any subsequently issued Notice of Temporary Compensation Payable results in the de facto acceptance of injuries in the subsequently issued Notice of Temporary Compensation Payable.
Claimant argues since the Notice of Compensation only identified the injuries listed in the May 2011 Notice of Temporary Compensation Payable and not the August 2011 Notice of Temporary Compensation Payable, the August Notice of Temporary Compensation Payable should have converted to a Notice of Compensation Payable for the additional injuries. Because of this, Employer is not permitted to stop paying benefits.
The Commonwealth Court said that Claimant overlooked the nature of injuries for which Employer accepted liability in the May 2011 Notice of Temporary Compensation Payable, which converted, and that Employer only accepted liability for medical payments for those injuries. When the May Notice of Temporary Compensation Payable converted, Employer was only liable for medical treatment related to those contusions. The Court opined that the newly alleged disability from the labrum and bicep tear injuries was unrelated to the contusion injuries. The Court also opined that Employer erroneously stated that it was stopping wage loss payments for the contusion injuries rather than the labrum and bicep tear injuries. Despite this error, Employer never accepted liability for the alleged labrum and bicep tear injuries.
Regarding the termination petition, Claimant alleged Employer's medical expert was not competent since he did not accept all of the injuries identified in the August 2011 Notice of Temporary Compensation Payable. The Court reasoned that since Employer never accepted liability for the additional injuries, Employer's medical expert did not have to testify about those injuries as if they existed. The medical expert's testimony was not incompetent, therefore the termination was upheld.