PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
10/1/2024 – 10/31/2024
MODIFICATION PETITIONS – LABOR MARKET SURVEY
QUALIFICATIONS OF A VOCATIONAL WITNESS
Stuart Brooks v. Trustees Of The University Of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: October 21, 2024
Issue:
Whether employer’s vocational expert failed to comply with the applicable Code of Professional Ethics?
Background:
Claimant was working for Employer as a nurse when he was injured while assisting a patient. Employer immediately began issuing wage loss benefits. In 2020, Employer filed a Modification Petition, in which it alleged that Claimant was capable of working and asserted that that jobs within his physical capabilities were identified and provided to Claimant through a labor market survey. The WCJ granted the Modification. Claimant appealed to the Board, which affirmed the WCJ.
Holding:
Claimant’s allegation that employer’s vocational expert violated the provision that vocational experts “shall comply with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses” was without merit. While the vocational expert may have incorrectly added the initials “CDMS” to his name in written correspondence after his CDMS credential had expired, neither the Act nor the Regulations calls for disqualification of a vocational expert who inaccurately includes credentials on written correspondence. The expert complied with the plain language of Section 306(b)(2). Further, this issue did not implicate any due process rights.
Affirmed.
MODIFICATION PETITIONS
CLAIMANT’S GOOD FAITH OBLIGATION
Eugena B. Cowen v. Department of Corrections (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 15, 2024
Issue:
Whether the WCJ’s decision was based upon substantial evidence and legally correct?
Background:
Claimant, a corrections officer, sustained a work-related injury. Claimant filed multiple review petitions alleging additional injuries. Employer filed a suspension petition alleging that it offered Claimant modified-duty work within her medical restrictions but that she had not returned to work. Claimant acknowledged receiving a letter from Employer offering a light-duty position. She stated that she had not accepted that position because she did not feel able to work in any capacity that involved potential inmate contact. Although the WCJ found Claimant generally credible, Claimant failed to meet her burden of proof on her review petitions seeking to add additional conditions to the description of injury. The WCJ also concluded that Employer carried its burden of proof to show that Claimant was physically able to perform the offered position and that her refusal to return to work for that position was in bad faith. Accordingly, the WCJ granted Employer’s suspension petition with regard to the offered position. The Board affirmed.
Holding:
If the Claimant does not exercise good faith with regard to the offered position, then her benefits can be suspended. Bad faith does not require overt malfeasance on the part of the Claimant; it may be found if the Claimant merely refuses to follow up on a job referral without a sufficient reason. This determination is a matter of credibility and evidentiary weight reserved to the WCJ. Employer’s offered position satisfies the Kachinski test. The experts’ testified that Claimant could resume her full-time duties and, by extension, the light-duty position. Credited by the WCJ, this was sufficient medical evidence that Claimant’s physical condition had improved. Employer also showed that Claimant was able to perform the offered job, as evidenced by the permission of her treating doctor, which he confirmed in his testimony. The WCJ credited the testimony describing the offered position. Claimant failed to provide a sufficient reason for her refusal to return to work and, as such, did not act in good faith. Claimant did not establish that she received ineffective assistance of counsel. A remand to the Board for a rehearing is not warranted. Claimant failed to meet her burden of proof on her review petitions seeking to expand the description of injury to include lower back injuries and more extensive neck and left shoulder injuries. Employer met its burden of proof on its suspension petition based on the offered position. As such, the WCJ did not err in denying Claimant’s review petitions and granting Employer’s suspension petition and the Board did not err in affirming those determinations.
Affirmed.
TIMELINESS OF THE NOTICE OF THE INJURY AND THE FILING OF THE CLAM
THE DICOVERY RULE AND ACT 46 CLAIMS
West Conshohocken Borough v. David Markland (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 10, 2024
Issues:
Whether the Board should have reversed the WCJ’s award for a lack of findings of fact regarding notice under Section 311 of the Act? Whether the Claimant filed his Claim Petition more than three years after his date of diagnosis?
Background:
On December 27, 2019, Claimant filed a Claim Petition based upon an occupational disease. The Claim Petition was for an Act 46 (firefighter/cancer) claim. In his Claim Petition, Claimant listed the date of notice to Employer as August 23, 2019. Claimant indicated he gave notice verbally after speaking with counsel prior to any physician advising that his cancers were due to his fire service. Regarding notice, Claimant said that he first learned of potential claims from a physician/expert after receiving a physician’s opinion just before filing. The WCJ granted Claimant’s Claim Petition. Employer appealed the decision to the Board, and the Board affirmed.
Holding:
The WCJ made no specific finding regarding notice. However, the Board noted the WCJ accepted Claimant’s testimony. Claimant testified he learned of Act 46 after a discussion with a fellow firefighter in June 2019. On August 23, 2019, Claimant provided notice to Employer. Claimant had actual knowledge of the nexus between firefighting and his cancer only after he reviewed his expert’s report on December 27, 2019. Claimant did not fail to act with reasonable diligence in attempting to discover the cause of his conditions. Claimant provided timely notice of an injury and its relationship to his employment and determining benefits began when he became disabled. Further, Claimant did make a timely claim for benefits under Section 315 of the Act. Claimant filed his Claim Petition in December 2019, within three years from his date of injury. Therefore, the Board did not err by concluding Claimant timely filed his Claim Petition. The WCJ’s findings are supported by the record. The WCJ did not err in finding Claimant was entitled to benefits.
Affirmed.
AVERAGE WEEKLY WAGE CALCULATION
USING A METHOD NOT SET FORTH IN THE ACT
Daniel Critton v. Fine Arts Discovery Series (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 22, 2024
Issue:
Whether the WCJ’s calculation of the AWW constituted legal error?
Background:
Claimant suffered an injury while working for Employer. The WCJ concluded that Claimant earned pay from the Johnson & Johnson employment in addition to the pay from Employer. The WCJ noted Claimant’s admission that he worked limited hours to keep his employment income below $14,000 yearly in order to remain eligible for Social Security disability. Thus, the WCJ concluded that Claimant’s weekly wage was $269.23—i.e., $14,000 divided by 52 weeks—resulting in a weekly compensation rate of $242.30. Claimant appealed and the Board affirmed.
Holding:
Section 309 is designed to ensure an accurate calculation of wages, for which purpose the General Assembly provided differing methods of calculation to account for factors unique to different employment arrangements. The method of calculation prescribed by subsection (d) does not control in a circumstance, such as this one, where it would lead to a grossly and demonstrably inaccurate measure of a worker’s AWW. It furthers the legislative intent of Section 309 in such instances to permit a calculation of AWW that does not strictly follow any of the methods prescribed in Section 309, where a rigid adherence to those methods would lead to an absurd and unreasonable result. The only evidence of Claimant’s income in the record is his own testimony. There is nothing in the record to support the claim that Claimant’s 40-hour work weeks at Johnson & Johnson continued throughout the year. To the contrary, Claimant testified unambiguously that the hours worked at Johnson & Johnson were limited by his Social Security disability earnings cap to $14,000, annually. The WCJ’s decision was a correct exercise of his jurisdiction over Claimant’s workers’ compensation benefits. Because of Claimant’s failure to produce documentary evidence of his hours worked at Johnson & Johnson, his testimony regarding the limits on his work hours imposed by his Social Security benefits was the only evidence available to the WCJ addressing the question of how many hours Claimant worked.
Affirmed.
PENSION OFFSETS
RETROACTIVE OFFSETS GEATER THAN SIX MONTHS
William Gallese v. The Pietrini Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 11, 2024
Issue:
Whether the Board erred by affirming a retrospective pension offset greater than 6 months?
Background:
Claimant sustained a work injury on October 24, 2016. He retired on August 1, 2019, and began receiving a monthly pension. On April 10, 2020, Employer filed the Modification Petition seeking an offset of Claimant’s WC benefits as of April 10, 2020, for Claimant’s receipt of Employer’s funded pension. The WCJ granted the Modification Petition, concluding that Employer was entitled to an offset by the net amount of Claimant’s pension benefits. The WCJ determined that Employer was entitled to a pension offset credit for the entire period of August 1, 2019 through February 8, 2021, and ongoing. The Board affirmed.
Holding:
The doctrine of laches is available in administrative proceedings where no time limitation is applicable, where the complaining party failed to exercise due diligence in instituting an action and where there is prejudice to the other party. It was uncontested that Employer failed to notify Claimant of his reporting requirements and overpaid Claimant for 18 months entirely due to Employer’s lack of due diligence to notify Claimant of his reporting requirements at any point in time. However, Claimant submitted no evidence of hardship/inequity. Further, there is no presumption that a recoupment is prejudicial. Finally, the LIBC Forms weren’t an absolute condition precedent to a retroactive offset.
Affirmed.
REINSTATEMENT PETITIONS
Robert Mullarkey v. The GEO Group Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: October 22, 2024
Issue:
Whether Claimant had a right to immediate reinstatement of his indemnity benefits for the 2004 Injury, once his 2001 Injury was resolved?
Background:
Claimant worked as the fire and safety director at the Delaware County Prison when he sustained the 2001 Injury. Claimant sustained the 2004 Injury, which was a work-related aggravation of Claimant’s “symptomatic congenital spondylolisthesis” in his low back. Claimant was awarded benefits for the 2001 Injury, which were suspended from June 7, 2001, until July 9, 2004, when Claimant became unable to perform his pre-injury position. Claimant’s 2004 Injury also was found to separately prevent Claimant from performing his pre-injury job. The WCJ described her 2008 Decision, granting a claim petition for the 2004 Injury, as awarding medical benefits and indemnity benefits payable after a cessation of Claimant’s receipt of workers’ compensation benefits for the 2001 Injury. Claimant continued to receive ongoing payments of total disability benefits related to the 2001 Injury until August 24, 2022, when a different WCJ granted a C&R Petition. In subsequent litigation, the WCJ held that Employer and carrier had no right to an offset for the paid amounts in accordance with the terms of the C&R Agreement and denied the Review Petition. However, the WCJ held that Employer was liable for the payment of indemnity benefits to Claimant for the 2004 Injury. The Board reversed the WCJ’s reinstatement of Claimant’s benefits for the 2004 Injury. The Board reversed on the issue of reinstatement of those 2004 benefits.
Holding:
The C&R Agreement may have addressed Claimant’s right to receive ongoing WC benefits for the 2001 Injury, but it did not address or resolve Claimant’s “disability” associated with the 2001 Injury, as Claimant remained unable to work his pre-injury position due to that injury both before and after the C&R Agreement’s approval. Having not alleged or proven a change in condition as to either injury or in his earning capacity as to the 2001 Injury, Claimant is not entitled to the reinstatement of the 2004 Injury benefits based on the C&R Agreement and 2008 Decision alone. Claimant, was required to, but did not, present evidence as to whether his current loss of earnings was related to the 2004 Injury, rather than the 2001 Injury. Instead, Claimant relied solely on the C&R Agreement and the 2008 Decision to argue, essentially, that his right to the immediate reinstatement of the total disability benefits for the 2004 Injury was automatic. Claimant’s position is not supported by Section 413(a) or the above precedent, both of which require evidence of a change in disability to reinstate suspended wage loss benefits. The 2008 Decision, itself, acknowledged that the payment and suspension of the benefits was subject to the Act’s requirements. The reinstatement of Claimant’s disability benefits for the 2004 Injury was in error.
Affirmed.
SUBSTANTIAL AND COMPETENT EVIDENCE
Joseph Pfeifer v. Temple University Hospital (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: September 9, 2024
Issues:
Whether the WCJ’s findings were inconsistent with the current understanding of Long COVID?
Background:
Claimant contracted COVID-19 in September 2020 while employed as a registered nurse for Employer. Employer accepted Claimant’s work injury through issuance of a Notice of Temporary Compensation Payable (NTCP) on October 27, 2020, which converted to a Notice of Compensation Payable (NCP) by operation of law. Employer filed a Termination Petition alleging that Claimant had fully recovered from his work injury and that he was able to return to work without restrictions. Employer filed a Suspension Petition, based on a specific job offer made on June 15, 2021. In a decision circulated on October 28, 2022, the WCJ rejected Claimant’s testimony as not credible, unpersuasive, and lacking in candor. The WCJ specifically rejected Claimant’s contention that he continued to suffer from any disabling symptoms of COVID-19, noting that Claimant’s complaints were not objectively verifiable and, therefore, must be compared with the evidence of record. Based on this and her other findings and credibility determinations, the WCJ found that Claimant had fully recovered from his work injury as of April 28, 2021, the date of Dr. Bennett’s IME. Accordingly, the WCJ granted Employer’s Termination Petition and dismissed the Suspension Petition as moot. The Board affirmed.
Holding:
Initially, Claimant also argued that the WCJ’s reliance on Claimant’s social media posts violated his First Amendment right to free speech. However, at no point did Claimant, or his counsel, object to the admissibility of these posts. Accordingly, Claimant waived the issue. The court rejected Claimant’s argument that the WCJ should have considered extrajudicial scientific evidence, as it ignores the plain language in Section 418 of the Act. It was Claimant’s responsibility to introduce any “known science” that would have refuted an expert’s opinions. He did not. The Court will not upend the WCJ’s decision, or the Board’s affirmance thereof, based on matters outside the certified record. The WCJ explained in detail why she favored the opinions of employer’s expert over the Claimant’s. Claimant’s disagreement with the opinion and his desire for a different outcome is not a sufficient basis for overturning the WCJ’s findings of fact and credibility determinations.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
THE CONSIDERATION OF NON-ACCEPTED CONDITIONS
City of Philadelphia v. Lamont Turner (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: October 17, 2024
Issue:
Whether the Board and the WCJ erred as a matter of law in applying Duffey II and Sicilia I?
Background:
On March 3, 2006, Claimant was injured in the course and scope of his employment. In 2021, a WCJ’s decision found that Claimant had fully recovered from his left knee, left hip, and bilateral feet injuries, but further concluded that Claimant had not fully recovered from his low back injury. Thereafter, Employer requested that the Claimant have and IRE. This modification petition was filed based upon that IRE report. The IRE did not evaluate or rate Claimant’s prior knee, hip, and foot injuries, as Claimant had fully recovered from them. It also excluded certain other complaints on the part of the Claimant. The IRE calculated Claimant’s whole-person impairment rating to be 31%. However, the WCJ denied the Modification Petition and directed that Claimant’s benefit status remain as TTD. The Board affirmed.
Holding:
In Duffey II, the Pennsylvania Supreme Court considered whether an IRE physician-evaluator fulfilled his obligations under former Section 306(a.2) of the Act, formerly 77 P.S. § 511.2,7 where the physician-evaluator, in calculating the Claimant’s whole-person impairment rating, did not specifically consider the Claimant’s reported psychological conditions of adjustment disorder, depressed mood, and chronic post-traumatic stress disorder. The Court concluded that, IRE examiners must exercise independent professional judgment to make a whole-body assessment of the degree of impairment due to the compensable injury, which discernment cannot be withheld on the basis that the physician-evaluator believes the undertaking is a more limited one. In Sicilia I, the Commonwealth Court applied the Supreme Court’s holding in Duffey II in considering whether a physician-evaluator properly excluded certain diagnoses from the calculation of the Claimant’s whole-person impairment rating because the diagnoses were not included in the accepted description of the Claimant’s injuries. The Court noted that, per Duffey II, an IRE physician-evaluator may properly consider conditions or impairments not expressly included in the Claimant’s accepted or adjudicated injury description in calculating a whole-person impairment rating. A WCJ errs as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of the Claimant’s work injuries. As it was undisputed in the record that (1) Claimant reported the “non-considered” conditions to the IRE evaluator, (2) the IRE evaluator opined that each of the conditions at least reasonably could be “due to” Claimant’s lower back injury, and (3) the IRE evaluator nevertheless did not consider the conditions in his whole-person impairment rating specifically because they were not part of Claimant’s work injury description, the Board and the WCJ did not err in denying the modification.
Affirmed.
(NOTE: A Concurrence was issued in which it was expressed that it should not be the job of the IRE physician to ferret out what conditions may be attributable to the compensable injury based on comments made by the Claimant during the IRE. This is, nevertheless, the current state of the law. As Duffey II blurs the distinction between defining a work injury and determining the impact of that work injury upon the Claimant’s earning power, Duffey II should be revisited.)
COURSE AND SCOPE AND NOTICE
EMPLOYER’S KNOWLEDGE OF WORK-VACATION INJURY
COMPENSIBILITY OF WORK-VACATION INJURY
Power Home Remodeling v. Matthew Hess (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: October 8, 2024
Issues:
Whether Claimant’s injury occurred outside the course and scope of his employment? Whether Claimant afforded Employer proper notice of his work-related injury under the Act?
Background:
Claimant suffered severe injuries from an accident which occurred during an ATV tour in West Virginia. Claimant filed a Claim Petition, seeking full disability benefits ongoing and asserting that Employer was afforded verbal notice of the injury. Employer argued that Claimant’s injuries were not within the course and scope of his employment and denied that Claimant afforded timely notice. Employer had a history of encouraging teamwork, bolstering morale, and finding promising candidates for promotion and recruitment within the company. To this end, certain management employees, including Claimant, were given $1,500.00 monthly to further these goals. Consistent with these objectives, Claimant testified that he organized a three-to-four-day ATV tour in West Virginia for himself and others. He was injured. The WCJ found that Claimant’s injury was in the course and scope of his employment and that Employer was afforded timely notice of the injury. Employer appealed to the Board, which affirmed.
Holding:
The credible evidence established that one could directly trace the activity at issue to an objective of Claimant’s employment and one which Employer fervently encouraged. Morale boosting or leisure activities have been found to further the business of the employer where the activity at issue was aligned with some objective or requirement of the Claimant’s employment. The inquiry focuses less so on the activity at issue than it does on whether the activity was traceable to the employer’s encouragement or policy. A critical inquiry is whether it was purely voluntary or was it encouraged by the employer in the pursuit of a specific objective or policy. As for notice, section 311 explicitly permits Claimants to recover workers’ compensation benefits, even in the absence of formal notice, where the employer has actual knowledge of the injury. As such, here, Employer’s decision to fly Claimant’s mother to the hospital where he was being treated and to book a hotel room for her to stay in pending his treatment belies Employer’s arguments now because Employer necessarily had actual knowledge of Claimant’s injury and the circumstances giving rise to it. Claimant’s contention that the injury was work related was not obfuscated by a preexisting condition. Employer had knowledge of the trip, its participants, Claimant’s desire to recruit or promote these participants, and his resulting severe injuries. The totality of the circumstances indicate that Employer was aware of Claimant’s work trip and the severity of his injuries which provided Employer with sufficient notice under Section 312. Although his notice may have been imperfect, it still served as proper notice of injury under the Act.
Affirmed.
PENNSYLVANIA LEGISLATIVE REVIEW
THERE ARE NEW LAWS OUT THERE!
House Bill 760 was referred to the Senate and was considered as Senate Bill, SB 1232.
It requires insurers offer Direct Deposit, and that they “shall” notify the Claimant of that option.
On 10/29/2024 Governor Shapiro signed SB 1232 into law as Act 126 of 2024. It takes effect in 60 days.
House Bill 1632 was referred to the Senate and was considered as Senate Bill, SB 365.
This bill entitles “First Responders” to benefits for PTSD without the need to establish “abnormal working condition” – in the defined situations, called “a qualifying traumatic event”. These terms are defined within the Bill. There is a limit to the period that benefits are payable, 104 weeks. The claim shall be based on assessment and diagnosis by a licensed medical professional or a licensed mental health professional whose scope of practice includes evaluation, assessment and diagnostic privileges specified by the scope of practice of the profession psychologist or psychiatrist under the laws and regulations of this Commonwealth. Additional limitations on such claims are that they must be filed no later than three years after the date of a diagnosis and the injury shall not have occurred more than five years before the effective date of this law.
On 10/29/2024 Governor Shapiro signed SB 365, the PTSI for first responders bill, into law as Act 121 of 2024. It takes effect in one year.
STILL UNDER REVIEW
As of October 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration, or consideration.
Regular Session 2023-2024
House Bill 930
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation. Expanding Workers’ Compensation for Permanent Disfigurement
Subject: Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
NEW JERSEY LEGISLATIVE UPDATE
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4750
Expands certain employer reporting requirements to include entities that employ or contract with individuals for financial compensation, including ridesharing and delivery technology platforms.
Last Action: October 10, 2024 – Introduced, Reported out of Assembly Committee, 2nd Reading
Assembly Bill 2100
Provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks.
Last Action: September 19, 2024 – Reported out of Asm. Comm. With Amendments, and referred to Assembly Public Safety and Preparedness Committee
Senate Bill 3772
Concerns valuation of board and lodging with respect to workers’ compensation.
Last Action: October 10, 2024 – Introduced in the Senate, Referred to Senate Labor Committee