PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
4/1/2023 – 4/28/2023
SUBROGATION
Lindsay Franczyk v. The Home Depot, Inc, et al.
Supreme Court of Pennsylvania – Published Opinion
Decided: April 19, 2023
Issue:
Whether the employer is immune from civil suit under the Workers’ Compensation Act’s (WCA) exclusivity provision?
Background:
Claimant was working at a Home Depot store when a customer’s dog bit her. Defendants investigated, but they barred claimant from having any further contact or interaction with the dog owner or any witnesses. Defendants located and questioned two individuals who had brought dogs into the store, and spoke to an eyewitness, but ultimately allowed all of them to leave the store without taking any identifying or contact information. Claimant later was diagnosed with cubital tunnel syndrome, which required surgical repair. Claimant claimed and received workers’ compensation benefits. Claimant sued Defendants, asserting that Defendants failed to investigate the incident sufficiently, and that they negligently allowed the dog owner and witnesses to leave without obtaining identifying information. She contends that these acts and omissions denied her the opportunity to file a third-party suit against the dog owner. Defendants filed a motion for summary judgment, claiming immunity under the WCA’s exclusivity provision, notwithstanding Defendants’ failure, if any, to act more diligently in securing the information she needed to bring a third-party claim. The trial court denied summary judgment. The Superior Court affirmed. Like the trial court, the Superior Court embraced claimant’s view that she did not seek to recover from Defendants for the dog bite itself, but rather for the economic harm she suffered when she lost the opportunity to file a third-party claim against the tortfeasor dog owner.
Holding:
When an employee recovers on such a third-party claim, the employer may seek “subrogation,” recouping its workers’ compensation expenses up to the amount recovered from the third party. The WCA’s linchpin is its “exclusivity provision,” and the Pennsylvania courts have recognized only a few narrow exceptions to this exclusivity. The legislature’s goal was not to immunize, but merely to cabin, an employer’s obligation to employees for workplace injuries, in recognition of the fact that injuries are an inevitable incident of the workplace. Claimant’s asserted loss is her third-party claim, but the only principled way to determine the damages would be to make an educated guess as to what a jury might have awarded her in compensatory and non-monetary damages. This would require a trial within a trial, with claimant asking the jury to imagine itself empaneled in a personal injury case. For practical purposes, claimant would sue the absent dog owner for personal injury, and Defendants would be forced to defend against that claim in the dog owner’s stead. Thus, Defendants would litigate precisely the sort of claim that the WCA is supposed to prevent. The architects of the WCA held that the employer need not even indemnify a third party, let alone defend it. The Court reversed the Superior Court’s order denying summary judgment and remanded for the entry of summary judgment in favor of Defendants.
Reversed and remanded
CHIEF JUSTICE TODD, concurring
.
IMPAIRMENT RATING EVALUATIONS
Michelle Grimes v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 26, 2023
Issue:
Whether the provisions of Act 111 are unconstitutional?
Background:
Claimant sustained a work-related injury. Employer accepted Claimant’s injury as a right tibula/fibular fracture and paid her temporary total disability (TTD) benefits. On June 8, 2021, Claimant underwent an IRE which determined that she had a whole-person impairment rating of 8%, based on the 6th Edition of the AMA Guides. Employer filed a Modification Petition seeking to change Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted the Modification Petition. The Board affirmed the WCJ’s decision.
Holding:
Because this Court has previously ruled that a WC claimant does not have a vested right to ongoing TTD benefits that Act 111 violates, Claimant’s argument to the contrary was unfounded. Further, Claimant’s argument that the WCJ erred by not concluding that Act 111 is an unconstitutional delegation of legislative authority also lacks merit. The WCJ properly determined, based on precedent, that Act 111 does not unconstitutionally violate Claimant’s vested rights, can be applied to injuries that occurred before its October 24, 2018 effective date, and is not an unlawful delegation of legislative authority, the Board’s order is affirmed.
Affirmed.
Jose Gonzalez v. Guizzetti Farms, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 18, 2023
Issues:
Whether Act 111 can be applied retroactively and whether the enactment of Act 111 constituted an unlawful delegation of legislative authority? Whether the WCJ erred in merely modifying Claimant’s disability benefits from total to partial, rather than suspending benefits, as Claimant’s 500-week period of partial disability expired on April 6, 2018?
Background:
Claimant sustained a work injury in 2006. In 2008, Employer filed a Notice of Change of Workers’ Compensation Disability Status (Change Notice) modifying Claimant’s benefits from total to partial disability based on the results of an IRE that assigned Claimant a whole body impairment rating of 0%. Claimant did not appeal the modification of his disability status. Following the Supreme Court’s decision in Protz, Claimant filed a modification petition on January 12, 2018, seeking reinstatement of his total disability benefits. The WCJ granted Claimant’s modification petition, thus reinstating his total disability benefits, noting that, at the time Claimant filed his modification petition, he had not exhausted his 500 weeks of partial disability. In 2020, Employer filed a petition to modify Claimant’s total disability benefits following a December 17, 2019 IRE which utilized the 6th Edition, second printing, of the Guides and assigned Claimant a whole body impairment rating of 29%. A 2021 decision of Judge Poorman granted Employer’s modification petition, based on Dr. Yang’s credible testimony and the December 17, 2019 IRE. Claimant appealed Judge Poorman’s decision to the Board. The Board affirmed Judge Poorman’s decision,
Holding:
The court affirmed the Board’s order to the extent it affirmed the WCJ’s decision to grant Employer’s modification petition. However, they reversed the Board’s order to the extent it affirmed the WCJ’s failure to grant Employer a credit for previously paid weeks of partial disability. Claimant’s argument that Act 111 cannot apply retroactively, absent language in the form suggested in Section 15.71 of the Manual. Neither Section 1926 of the SCA nor Section 15.71(b) of the Manual mandates the use of specific language in a retroactive provision. Indeed, Section 15.71(b) only suggests that a retroactivity provision “may” follow a particular format; it does not direct the inclusion of specific terms through use of the word “shall,” which would denote a mandatory duty eliminating the exercise of discretion. Furthermore, our courts have consistently held that Act 111 applies retroactively with respect to the calculation of a claimant’s weeks of total and partial disability paid prior to the effective date of Act 111. Further, the so-called non-delegation doctrine established in article II, section 1 of the Pennsylvania Constitution does not prevent the General Assembly from adopting as its own set of standards which are already in existence at the time of adoption. Accordingly, the Board properly affirmed Judge Poorman’s decision granting Employer’s modification petition. However, the Board erred in holding that Employer was not entitled to a credit for the 500 weeks of partial disability Claimant received. These payments are not “erased” or converted into total disability benefits by virtue of the January 14, 2019 WCJ decision reinstating Claimant’s benefits, effective September 5, 2008. There is no support for the Board’s contrary conclusion, which serves to defeat the purpose of Section 3(2). A remand was ordered for a determination on Employer’s entitlement to a credit under Section 3(2) of Act 111.
Affirmed in part, reversed in part, and remanded for further proceedings.
FORFEITURE – FAILURE TO ATTEND AN IRE
Lloyd Edinger v. Rhodes Salvage/Edward Rhodes (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 25, 2023
Issues:
Whether the Claimant had a reasonable excuse for failing to attend the rescheduled IRE?
Background:
In 2008, Claimant suffered a work injury. In 2019, Employer requested Claimant submit to an IRE pursuant to newly enacted Section 306(a.3) of the Workers’ Compensation Act. An IRE was scheduled, and Claimant was notified of the appointment. Claimant’s counsel notified Employer that Claimant would not attend the scheduled IRE because he believed Act 111 was unconstitutional, similar to the former IRE provision. Employer filed a Petition for Examination seeking an order from the WCJ to compel Claimant to attend an IRE, which the WCJ granted. Thereafter, Employer sent Claimant a letter advising the IRE had been rescheduled to September 9, 2019. On August 15, 2019, Claimant appealed the Decision ordering the IRE to the Board. Employer filed a Motion to Quash Claimant’s Appeal with the Board, alleging the WCJ’s order directing Claimant attend the IRE was an interlocutory order. On September 9, 2019, Claimant did not appear for the rescheduled IRE and the Employer filed a Suspension Petition, alleging Claimant failed to appear for the IRE, as ordered. Claimant requested that the Suspension Petition be dismissed with prejudice and sought an award of counsel fees. Claimant also stated he would attend a rescheduled IRE if it was stipulated that he was not waiving any rights to object to the nature of the exam on constitutional or any other grounds. (In January 2020, the Board issued its order on the first appeal, quashing Claimant’s appeal of the WCJ order directing him to attend the IRE, concluding it lacked jurisdiction over the interlocutory order. This Court affirmed the Board’s order on June 30, 2020, noting that the precedent clearly holds that a WCJ’s order directing a claimant to attend an IRE is interlocutory and unappealable.) The WCJ issued a Decision denying Employer’s Suspension Petition because the Board had yet to act on Claimant’s appeal of the WCJ’s prior order directing Claimant attend the IRE or Employer’s Motion to Quash related thereto. The WCJ further found the appeal provided Claimant with a reasonable excuse for failing to attend the rescheduled IRE. Accordingly, the WCJ denied Employer’s Suspension Petition. Employer appealed to the Board. In July 2021, the Board issued its Opinion and Order, which is the subject of the instant appeal. The Board concluded the WCJ erred in failing to grant the Suspension Petition where Claimant did not comply with a WCJ order directing him to attend an IRE and did not request supersedeas while Claimant’s appeal of that order was pending before the Board. Claimant had no right to appeal the order compelling him to attend because the order from which he appealed was interlocutory and, therefore, not appealable, and even so, an appeal of an order to attend an examination under Section 314 does not operate as an automatic supersedeas. The Board concluded that the WCJ misapplied the law, resulting in an abuse of discretion.
Holding:
It is undisputed that Employer requested Claimant attend an IRE, and that Claimant refused. Employer filed a petition seeking an order from a WCJ to attend that IRE, the WCJ issued such an order, and Claimant did not comply with that order. At issue is whether Claimant was required to comply with the order and attend the IRE when Claimant’s appeal of that order was still pending with the Board, and assuming the Claimant was required to attend the IRE, what the consequence of noncompliance should be. The Board did not err in suspending Claimant’s disability benefits after Claimant failed to attend an IRE as ordered by the WCJ. Although Claimant was in the process of appealing that order, it was an interlocutory order, which did not operate as an automatic supersedeas, and Claimant did not separately seek supersedeas. Furthermore, pursuant to this Court’s precedent, failing to attend the IRE under these circumstances did not serve as reasonable cause or excuse for not attending as directed. Moreover, the Board did not exceed its authority by awarding Employer a dollar-for-dollar credit as Section 314 of the WC Act provides for this exact relief.
Affirmed.
REASONABLE MEDICAL SERVICES – REIMBURSEMENT
Jacqueline Davies v. All My Children (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 26, 2023
Issue:
Whether the WCJ erred as a matter of law in failing to grant reimbursement to Claimant’s parents for the purchase of a new home necessary to accommodate Claimant’s disability?
Background:
Claimant sustained a spinal injury while working for Employer, which resulted in Claimant becoming paraplegic and having bowel and bladder problems. In 2018, Claimant filed a review petition requesting medical benefits for the provision of numerous accommodations. Payment for several of those accommodations was not disputed, other than on grounds of cost, and were granted by the WCJ. However, Claimant sought and was denied reimbursement to her parents for the purchase of a house in Perkasie because their prior house could not be modified to accommodate Claimant’s needs. Claimant also sought the cost of maintenance of her parents’ Souderton house. Prior to her work injury, Claimant lived—and had always lived—with her parents in the three-story Souderton house owned by her parents. After the injury, it was not possible to remodel the Souderton house to accommodate Claimant’s paraplegia. Therefore, Claimant’s parents cashed in their tax-advantaged 401k retirement accounts and purchased a house in Perkasie for approximately $220,000. Claimant did not contribute funds for the purchase of the Perkasie house and has no ownership interest in it. Claimant’s parents then spent $35,000 on renovations to the Perkasie house to make it accessible to her, which amount was awarded by the WCJ. The WCJ denied the portion of the review petition seeking payment for the Perkasie house and the costs associated with maintaining the Souderton house. The WCAB affirmed.
Holding:
Section 306(f.1)(1)(ii) of the Workers’ Compensation Act provides that in addition to work-related medical treatment, the employer shall provide payment for services and supplies and orthopedic appliances, and prostheses in accordance with this section. However, the purchase of a house extends the phrase ‘orthopedic appliances’ beyond a reasonable construction and is thus not reimbursable.
Affirmed.
JUDICIAL DISCRETION
Impress Manufacturing v. Jomar Rosa-Acosta (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 28, 2023
Issue:
Whether the WCAB erred in finding that the WCJ improperly dismissed Claimant’s petition with prejudice?
Background:
Claimant filed a claim petition seeking total disability. After missing a WCJ-ordered deadline for expert evidence, Claimant sought an extension. The WCJ denied the extension, precluded Claimant from introducing expert evidence, and ultimately dismissed this first petition with prejudice. Prior to disposition of the first claim petition, Claimant filed a second petition based on the same facts but further alleging a surgical aggravation of his initial injury. The WCJ dismissed the second petition as premature but did not indicate whether the dismissal was with or without prejudice. Claimant timely appealed both dismissals to the Board. The Board affirmed in part, reasoning that the WCJ properly imposed evidentiary deadlines but erred in dismissing Claimant’s first petition with prejudice. Regarding the second petition, the Board agreed that it was premature but clarified that the WCJ’s dismissal was without prejudice. Employer filed a petition for Review to the Commonwealth Court.
Holding:
The WCJ erred in dismissing Claimant’s first petition with prejudice. The dismissal of a claimant’s petition for lack of prosecution is only appropriate where prejudice is shown. The WCJ must make a specific finding of prejudice in support of his decision to dismiss a petition, otherwise, dismissal without prejudice is appropriate. Mere delay caused by a claimant’s failure to comply with specific deadlines is insufficient. The delay must prejudice the defendant. The dismissal of a petition for lack of prosecution may be set aside for an abuse of discretion. The record did not support a dismissal with prejudice. While Claimant was unable to secure medical testimony in a timely fashion, Employer had no hardship or loss. Any delay caused by Claimant did not hinder Employer’s ability to secure medical evidence. Further, Claimant offered a reasonable explanation for the delay and the WCJ did not grant Claimant multiple continuances over Employer’s objections. The singular warning by the WCJ that there would be no extensions seems arbitrary and unjustified under these circumstances, particularly given the WCJ’s subsequent failure to identify any prejudice to Employer in dismissing Claimant’s first petition. The WCJ abused his discretion in dismissing Claimant’s first petition with prejudice.
Affirmed.
Antonio Mercado v. Antonio Origlio, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 18, 2023
Issue:
Whether the decision of the Board affirming the WCJ’s complete denial of the Claim Petition is supported by substantial competent evidence?
Background:
Claimant filed a Claim Petition alleging he sustained a work injury while bending and lifting as an order picker for Antonio Origlio, Inc. (Employer). He sought partial disability benefits from June 1, 2020, through July 5, 2020, and then ongoing full disability benefits from July 6, 2020, forward. The WCJ denied the Claim Petition. The WCJ found Mercado failed to sustain his burden of proof that he sustained a work injury or that any subsequent disability or medical care and treatment was causally related to the same. The Board affirmed.
Holding:
Claimant questions the WCJ’s credibility determinations. While credibility determinations generally are not subject to review, to offer a reasoned decision in compliance with the Act, the WCJ must issue a decision containing findings of fact and conclusions of law based upon the evidence as a whole, which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. Here, the WCJ considered the medical evidence presented, reports of other employees of Employer, and claimant’s own testimony. Ultimately, the WCJ rejected claimant’s testimony and medical evidence, and as a result, claimant failed to meet his burden of proof in establishing he sustained a work injury. The WCJ set forth substantial evidence, along with rationale for his credibility determinations, to support his decision to deny the Claim Petition. In so doing, the WCJ issued a reasoned decision.
Affirmed.
Kimberly Lyons v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 17, 2023
Issues:
Whether the Board erred in affirming the WCJ’s denial of Claimant’s Review Petition and the granting of Employer’s Termination Petition? Whether the Board erred in denying reimbursement of litigation costs?
Background:
Claimant was injured during the course and scope of her employment as a police officer for Employer. Employer issued a Notice of Compensation Payable (NCP) accepting liability for Claimant’s injury, which initially was described as a left ankle sprain. Approximately one year later, an IME of Claimant opined that she had fully recovered from her injury. Employer filed a Termination Petition. Claimant filed the Review Petition alleging that the injury description in the original NCP was incorrect and should also have included a left knee contusion. Employer issued an amended NCP recognizing Claimant’s work injury as both a left ankle sprain or tear and a left knee contusion. Claimant amended her Review Petition to add causalgia and complex regional pain syndrome (CRPS) as work-related injuries. The WCJ granted Employer’s Termination Petition and denied Claimant’s Review Petition. Claimant appealed to the Board, which affirmed the WCJ.
Holding:
The WCJ’s Decision was supported by substantial evidence and the WCJ did not err in either granting the Termination Petition or denying the Review Petition. The WCJ’s credibility determinations are supported by the record. In the record there is competent, substantial evidence and no capricious disregard of other evidence. Claimant’s arguments suggesting to the contrary are without merit. Although it is true that Employer’s expert did not examine Claimant’s left knee or opine that the left knee injury had ceased, Claimant made no complaints of pain in her left knee during the IME. This expert therefore had no reason to examine it. Moreover, Claimant’s own treating physician, opined that Claimant’s knee injury had improved and did not prevent her from returning to work. There was no competent, unequivocal evidence in the record supporting a compensation award for any injury to Claimant’s left knee, notwithstanding the fact that Employer filed the Amended NCP adding the left knee contusion to the injury description. Any failure of Employer’s medical expert to mention or opine on the knee injury is immaterial. Further, Claimant was not entitled to reimbursement of litigation costs. First, from its plain language, section 440(a) applies only to “contested cases.” Although Employer initially filed an answer to the Review Petition denying all allegations, Employer nevertheless filed the Amended NCP adding the left knee contusion to the injury description, which was the only relief requested. The mere fact that the Amended NCP followed in time the filing of the Review Petition does not mean that Claimant was “successful” on a “contested” claim. Second, even assuming that Claimant was successful in adding her left knee contusion to her injury description, the WCJ nevertheless concluded that Claimant had recovered completely from that injury and terminated her benefits. Claimant therefore was not successful on those claims and is not entitled to any associated litigation costs.
Affirmed.
SUSPENSION – VOLUNTARY REMOVAL FOR WORKFORCE
City of Wilkes-Barre v. Thomas Snyder (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 20, 2023
Issue:
Whether the claimant’s loss in earning power was due to Claimant’s voluntary removal from the workforce?
Background:
Claimant was employed as a firefighter by Employer when he was injured at work. Employer recognized Claimant’s injury by way of an Amended Notice of Compensation Payable and Claimant began receiving temporary total disability benefits (TTD). Claimant’s TTD benefits were suspended when Claimant returned to work in a modified-duty position. Claimant continued working in a modified-duty position until November 26, 2018, when Claimant submitted a resignation letter confirming that he was retiring as of November 26, 2018, due to a work-related injury. Claimant filed a petition to reinstate his TTD benefits, in which he alleged that he retired due to his work-related injury, pursuant to a determination that he would not ever be physically capable of returning to his pre-injury job as a firefighter and that the temporary, light-duty job would no longer be available. The WCJ found that there was no evidence presented that the modified-duty work Claimant was performing was ever taken away or specifically limited in duration. The WCJ concluded that claimant failed to establish that compensation benefits should be reinstated. On appeal, the Board reversed the WCJ’s decision to deny reinstatement, determining that the WCJ erred in concluding that Claimant voluntarily retired.
Holding:
To show that efforts to return a claimant to the workforce would be unavailing because a claimant has retired, an employer must show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce. The WCJ erred when he ignored the parties’ stipulation that Claimant retired once he learned he would not be allowed to return to his firefighting duties. The WCJ erred by ignoring the credited testimony of the HR Director, where she agreed that modified-duty work was temporary in nature and that once a firefighter was permanently disabled from the firefighting duties, modified-duty would no longer be available. The WCJ ignored the letter from Claimant’s treating physician that deemed him unable to return to unrestricted firefighting duties because of his work injury, and the credited testimony from Employer’s expert that also agreed that Claimant was restricted to light-duty work at that time. Based on the credited testimony of Employer’s HR Director, Claimant would no longer be eligible for modified-duty work if he was permanently disabled from his pre-injury position as a firefighter. Claimant was, in fact, deemed permanently disabled by his treating physician, which prompted his retirement. Thus, Employer failed to carry its burden, under the totality of the circumstances, to show that Claimant’s retirement was voluntary. Further, claimant sustained his burden to prove that he was forced into retirement when his temporary, modified-duty work assignment would be eliminated when he was deemed unable to return to work as a firefighter, so claimant was not required to prove that he retired from the entire labor market.
Affirmed.
TERMINATION PETITION
Connor Soles v. Garnet Valley School District (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 14, 2023
Issue:
Whether Employer presented insufficient evidence to show a resolution of the work injury?
Background:
Claimant worked as a paraprofessional for Employer. In October 2019, he sustained a work-related injury when he was hit in the face with a basketball while monitoring students in the gym. Employer accepted the injury via a Notice of Compensation Payable (NCP). In April 2020, Employer filed a termination petition alleging Claimant’s full recovery as of February 2020. In July 2020, Claimant filed a review petition, seeking to expand the NCP injury description to include post-concussion syndrome and cervical and left-shoulder injuries. The WCJ granted Employer’s termination petition, finding that Claimant had fully recovered from the work-related injury. The WCJ also denied Claimant’s review petition. The Board affirmed.
Holding:
Sufficient evidence supported a termination of claimant’s benefits. According to Claimant, Employer had accepted that Claimant suffered multiple head injuries when he was hit by a basketball. Employer’s medical expert’s failure to acknowledge all the injuries accepted by Employer did not render his testimony incompetent and insufficient to establish that Claimant had fully recovered. It is sufficient if the medical expert assumes the presence of the work-related injury and then evaluates whether the claimant remains disabled. Similarly, where a medical expert opines that the claimant has fully recovered from any injury the claimant may have suffered, the expert’s doubts concerning injury causation do not render the opinion invalid. The employer’s expert concluded that claimant was fully recovered from all injuries that he sustained. Thus, not only did he credibly testify that Claimant had fully recovered from his contusion, but he also considered the possibility the Claimant may have suffered other injuries never acknowledged by Employer and based upon his examination and the diagnostic results, concluded that Claimant had fully recovered. Accordingly, this testimony was competent and sufficient to establish that Claimant’s disability had ceased.
Affirmed.
Theresa Lugo Thomas v. Trinity Health Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 20, 2023
Issue:
Whether the Board erred in affirming the WCJ’s termination of benefits where the Employer’s medical expert refused to recognize the accepted injury?
Background:
On November 18, 2019, in the course of her employment, claimant slipped and fell on wet leaves. She went to the hospital and received a diagnosis of a contusion of the right hand, a leg contusion, and a lumbar strain. A February 5, 2020 Notice of Compensation Payable (NCP) accepted a right shoulder, right hand, right upper arm strain or sprain, and a right thigh contusion. After the injury, claimant had surgery on her right rotator cuff, physical therapy for her shoulder, and injections in her hand and elbow. Thereafter, claimant filed a Review Petition that alleged the NCP failed to recognize a right wrist ligament tear status post-surgery, right shoulder rotator cuff tear, and aggravation of underlying cervical degenerative disc disease. Employer subsequently filed the Termination Petition that alleged she had fully recovered as of October 22, 2020. The WCJ partially granted the Review Petition and granted Employer’s Termination Petition. The Board affirmed.
Holding:
The Board found the WCJ accepted “competent testimony” from employer’s medical expert that claimant had fully recovered from her work-related injury. The WCJ accepted employer’s expert’s opinions based on the delayed onset of the thumb and elbow complaints, the prior medical history related to the thumb, as well as claimant’s medical expert’s inability to opine whether another incident was the cause of the ongoing wrist complaints, as well as the multiple normal shoulder examinations, the numerous normal examinations of the cervical spine and the lack of objective findings in the MRI or EMG. It was not material that the employer’s expert did not believe all the injuries occurred. A medical expert need not believe that a particular work injury actually occurred. Rather, a 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 IME. Employer’s expert gave claimant the benefit of the doubt and determined that even if she suffered a shoulder injury, it was minor and had resolved by the time of the IME. The WCJ accepted the “competent testimony” of employer’s expert, which was sufficient to support a finding that claimant had fully recovered from her work-related injury.
Affirmed.
REINSTATMENT PETITION
Janet Thomas v. American Airlines, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 19, 2023
Issue:
Whether Claimant is entitled to reinstatement of disability benefits from February 6, 2020, to October 3, 2020?
Background:
In June 2019, during the course and scope of her employment, Claimant sustained a lumbar sprain injury and was awarded disability benefits. She remained unable to work until December 2019. Upon her return to work, Employer issued a suspension notification, which Claimant did not challenge. In January 2020, Employer filed suspension and termination petitions, alleging Claimant’s full recovery. On February 6, 2020, Claimant again stopped working following a mandatory work training event, which aggravated her injury symptoms. Thereafter, Claimant filed a reinstatement petition and a penalty petition, alleging that Employer had illegally suspended her benefits. The WCJ credited Claimant’s testimony and her expert’s report concerning Claimant’s reoccurrence of injury symptoms. However, the WCJ rejected claimant’s expert’s opinion that Claimant sustained a continued loss of earning power. The WCJ also rejected employer’s medical expert’s testimony that Claimant had fully recovered. The WCJ granted Employer’s petition to suspend disability benefits from February 6, 2020, to October 3, 2020, and denied all remaining petitions.
Holding:
A claimant seeking reinstatement of suspended benefits must prove that her worsening injury has affected her work performance, rendering her unable to perform a job previously found to be within her capabilities. Although it is unnecessary for a claimant to re-establish the medical cause of her disability, she must nevertheless prove that the same injury has adversely impacted her earning capacity. Claimant failed to establish any loss of earning power from February to September 2020. The WCJ rejected the opinion offered by Claimant’s medical expert that Claimant was disabled during this period for several reasons, including the failure to address Claimant’s ability to work even though she had been absent from work for over a month, his opinion that Claimant remained disabled even though she had returned to work several weeks earlier, and evaluations by three other doctors during this period, none of whom opined on her disability status. Although she claims her doctor provided her with a medical note releasing her from work in February 2020, Claimant did not offer this as evidence to demonstrate a loss of earning power. On the other hand, the WCJ credited the payroll evidence introduced by Employer, which demonstrated that Claimant did not suffer wage loss but rather received regular earnings during this period. Affirmed.
TRAUMA EXCEPTION
Solid Waste Serv. d/b/a J. P. Mascaro & Sons v. St. Luke’s Hospital (Bureau of Workers’ Compensation)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: April 25, 2023
Issues:
Whether St. Luke’s petition for fee review was premature because Employer never received what it considered a “proper bill?” 2. Whether the definitions of “life-threatening injury” and “urgent injury” contained in Section 109 of the Act are unconstitutional under article II, section 1 of the Pennsylvania Constitution?
Background:
Claimant sustained a work injury which Employer accepted through issuance of a Notice of Compensation Payable (NCP). The NCP described Claimant’s work injury as consisting of “multiple head fractures” and a right leg injury. Due to the severity of Claimant’s injuries, Claimant was taken to St. Luke’s, a Level I trauma center, where he received in-patient treatment for 31 days. St. Luke’s sent Employer an itemized bill for Claimant’s treatment in the amount of $1,342,419.85. The bill from St. Luke’s indicated that Claimant received “trauma-related services performed at a designated trauma site,” and that the expected payment, according to the regulations, is 100% of charges. Employer received the bill from St. Luke’s in a timely manner but failed to pay it within 30 days, as required by the Act and the regulations. St. Luke’s filed an application for fee review based on Employer’s failure to respond. On February 16, 2021, the Fee Review Section issued an administrative decision, which determined that Employer was untimely in paying the bill from St. Luke’s and that St. Luke’s was due $1,342,419.85, plus interest. Employer filed a request for a de novo hearing to contest the Fee Review Section’s administrative decision, asserting that St. Luke’s had not charged the usual and customary rate, that some charges were not trauma-related, and that Section 306(f.1)(10) of the Act, relating to trauma cases, was unconstitutional. Employer did not dispute that Claimant suffered a life-threatening work injury that required acute treatment at a trauma center. Rather, Employer questioned the “staggering amount” of the bill and whether Employer had been invoiced the usual and customary charges for services within the geographic area. Employer conceded that it bore the burden of proving that the amounts billed by St. Luke’s were “not usual and customary.” The Hearing Officer affirmed the Fee Review Section’s administrative decision and ordered Employer to pay St. Luke’s $1,342,419.85, plus interest.
Holding:
As for the timeliness of the Application for Fee Review, there is no dispute that Claimant received acute care pursuant to Section 306(f.1)(10) of the Act and Section 127.128(a) of the Medical Cost Containment regulations, and Employer does not deny that it failed to pay the bill it received from St. Luke’s within 30 of its receipt thereof or that it failed to contest the reasonableness or necessity of Claimant’s treatment within the 30-day time frame. Employer’s assertion that the 30-day period for paying St. Luke’s was never triggered because St. Luke’s failed to send Employer a “proper bill” is meritless. St. Luke’s was not obligated to state on its bill the amounts that it has negotiated with other patients, health insurance companies, self-insured employers, or workers’ compensation insurance companies to pay for the services in question in the past. Employer never made any attempt to identify the correct amounts within 30 days of receiving the bill from St. Luke’s, as provided in Section 127.205 of the MCC regulations. Moreover, Employer had several months in which to develop its case and it failed to do so. Despite accepting liability for Claimant’s work injury and acknowledging that it was responsible for paying his medical bills, Employer failed to pay any portion of the bill received. A provider’s bill must contain its “actual charges,” which are the charges made by similar providers within the geographic area. There is no requirement that a provider invoice the amounts it “actually receives” for the services rendered or that which has been “negotiated with others.” Accordingly, St. Luke’s’ application for fee review was timely filed. As for the argument that the “trauma exception” in Section 306(f.1)(10) of the Act and Section 127.128(a) of the Medical Cost Containment regulations is an unconstitutional delegation of legislative authority, the court noted that Employer had not challenged the characterization of Claimant’s injuries as life-threatening or urgent, nor had it argued that Claimant’s injuries did not warrant treatment at a Level I trauma center. Employer at no point challenged the reasonableness and necessity of Claimant’s treatment. Employer’s liability was established irrespective of the ACS’s triage guidelines regarding use of trauma centers. Thus, Employer could not show how it was harmed by the definitions of “life-threatening injury” and “urgent injury.” In the absence of such harm, Employer has not established a direct interest in this constitutional challenge and, consequently, that it has the requisite standing to test the constitutionality of Section 109. Moreover, beyond its reliance on Protz, and general statements that the “trauma exception” was enacted without appropriate policy standards or guidance, Employer has failed to develop its constitutional argument in any meaningful way.
Affirmed.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
03/29/2023 – 04/28/2023
PRE-EXISTING CONDITIONS
Louis Freeman v. Board of Trustees, Police and Firemen’s Retirement System
Superior Court of New Jersey, Appellate Division
No. A-0380-21; 2023 WL 2943039
Decided: 04/14/2023
Background:
Freeman was hired in December 2002 as a patrolman and worked his way up to becoming a K-9 officer and eventually a sergeant in September 2014, who was responsible for the midnight shift at the Trenton Psychiatric Facility. On March 4, 2015, Freeman walked outside to retrieve his canine and slipped on ice, falling onto his right side, and landing on his holster and striking his right knee and elbow. He received treatment from numerous doctors, including MRIs and EMGs. It was determined that he had diabetic neuropathy, however, he alleged he never had any symptoms prior to his slip and fall. Freeman’s doctors determined that he was totally and permanently disabled and unable to complete the job duties of a police sergeant. He also had a functional capacity examination (FCE) which determined he could not return to full duty police work.
On March 29, 2016, Freeman applied for accidental disability retirement pension, and his application for accidental disability was denied in July 2017. The Board held that he was not totally and permanently disabled from performance of his regular job duties. Freeman appealed the Board’s decision to the Office of Administrative Law. In September 2017, Freeman was evaluated by Dr. David Weiss, who opined that he suffered an injury to his back, hip, and neck because of the slip and fall on March 4, 2015 and as a result he can no longer perform the duties of a police officer. He also determined that Freeman had disc bulges in his cervical spine that were age-related, but they were previously asymptomatic and were aggravated by his fall. The Board’s orthopedist, Dr. Andrew Hutter, evaluated Freeman and acknowledged he could no longer work as a police officer. Freeman also had a neurological evaluation performed by Dr. Steven Lomazow, who concluded that he was not totally and permanently neurologically disabled, but there was an orthopedic problem with his hip.
On July 9, 2021, the ALJ issued a decision finding Freeman totally and permanently disabled from performing his duties as a police officer, however, the ALJ concluded that the March 4, 2015 accident was not the cause of his condition. The ALJ therefore determined that the Board’s denial of Freeman’s accidental disability was appropriate, but he did satisfy the requirements of ordinary disability. Freeman appealed, and alleged that the 2015 incident was the substantial contributing cause of his permanent disability, and the Board erred when it found the slip and fall accident was not the direct cause of his permanent and disabling injury.
Holding:
The court enumerated the criteria required to establish an entitlement to accidental disability retirement benefits. They also stated that the holdings in Gerba and Korelnia, were addressed in Petrucelli, where they stated that “the claimant in Gerba lost because the undisputed record established that he had symptomatic developmental arthritis for a decade and that the employment event only contributed to the progression of the disease.” The court ultimately concluded in Petrucelli that the petitioner satisfied the “direct result” test despite his pre-existing condition that triggered symptoms resulting in total disability.
This court stated that the question in this matter is whether Freeman’s disability is causally related to a traumatic event thereby qualifying his for accidental disability. They held that there is no indication that Freeman’s pre-existing conditions were of any major significance based on the expert testimony from both parties, and the record is bereft of any testimony that his neuropathy was somehow disabling. They further held that the circumstances of this case are analogous to petitioner’s pre-existing condition in Petrucelli, coupled with the fact that every expert acknowledged that prior to the traumatic fall, Freeman was serving in the “rigorous capacity of a K-9 officer without any limitations.” The court stated that, like Petrucelli, there was no expert testimony that suggested Freeman would have become symptomatic from his pre-existing arthritis or other conditions independent of the accident at issue.
Therefore, the court held that the record amply supports the conclusion that the March 4, 2015 slip and fall was the “essential significant or substantial contributing cause” of his disability, and the Board’s decision was not supported by substantial evidence in the record, and Freeman is entitled to accidental disability retirement benefits.
Reversed.