PENNSYLVANIA
Arlet v WCAB (Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Workers Compensation)
Pennsylvania Commonwealth Court
Decided: 2/24/2022
Issue:
Does an insurer have a right to subrogation from an insured when it made payments under a commercial policy to an injured employee, and it was later determined the employee should have been paid under the Workers’ Compensation Act. The commercial policy made payment to the injured employee under the Jones Act, a federal maritime law.
Holding:
The Pa. Supreme Court explained subrogation is an equitable principle and the general rule is an insurer may not subrogate from its insured. Here, a limited exception to that rule was created wherein the insurer was allowed to seek subrogation as it was determined that insurer paid for a risk it did not insure.
Background:
The claimant worked as a shipwright. In March 2011 claimant slipped and fell sustaining an injury. Under the Jones Act injuries to seamen and members of a crew who are injured at work have the right to sue their employer for negligence, and to recover damages for injuries sustained in the course of their employment. If an individual is found to be covered by federal maritime law, the Jones Act pre-empts a state’s workers’ compensation law.
Here the claimant was injured after he slipped and fell. The insurer who pursued this appeal insured the employer under a commercial liability policy. After being placed on notice of claimant’s injury at work, insurer negotiated a settlement, pursuant to the Jones Act, under the commercial liability policy and made payments.
After claimant received payment under the commercial policy, he then sought benefits under the Pennsylvania workers’ compensation Act, arguing he was not a covered individual under the Jones Act (seaman or crew member). After a significant amount of litigation, it was determined that the claimant was not a covered individual under the Jones Act and was entitled to Pennsylvania workers’ compensation benefits. There were further complications as the employer lacked workers compensation insurance at the time of the injury. The commercial insurer sought subrogation arguing the subsequent determination that the claimant was not covered by the Jones Act should allow it to seek subrogation for the payment made pursuant to the commercial liability policy.
After reviewing the party’s respective arguments and the decisions below, the PA Supreme Court noted that subrogation is an equitable principle, and it is well settled law that an insurer cannot subrogate against its own insured. In this instance however, the Court held equity allowed for the commercial insurer to seek subrogation. The matter was remanded to address additional issues and factual development.
Carbon Lehigh Intermediate Unit v WCAB (Waardal)
Pennsylvania Commonwealth Court
Decided: 1/3/2022
Issue:
In an instance where a claimant was laid off at the beginning of the COVID epidemic, workers’ compensation benefits were reinstated, he received unemployment compensation, and federal pandemic unemployment compensation, could the employer take a credit for the federal pandemic unemployment payments?
Holding:
The legislative intent behind section 204(a) of the Act (section which provides a credit for pension, severance, and/or unemployment payments), is to prevent the employer from paying duplicate benefits. Denying a credit for pandemic compensation which is paid for by another entity, does no disservice to the overall purpose of section 204(a), nor does it place an employer in the position of paying duplicate benefits for the same loss of earnings. Therefore, the credit was denied.
Background:
The claimant was employed as a substitute teacher. In May 2017, claimant sustained a work-related injury. After a period of total disability, claimant returned to modified duty. Claimant was laid off March of 2020. Claimant then filed a Reinstatement petition seeking to return to total disability. Claimant also began collecting unemployment compensation benefits and the pandemic compensation which was made available under the federal CARES Act. The WCJ granted a reinstatement of benefits and a credit for unemployment compensation. The request to take a credit for the pandemic relief payments was denied and the employer appealed. As noted above, the employer was unsuccessful in that appeal.
Sadler v WCAB (Philadelphia Coca Cola): Case handled by Andrea Weaver of this firm.
Decided: 1/7/22
Issue:
1. Whether the Social Security offset in Section 204(a) of the Act, violates the Equal Protection clause of the Pennsylvania Constitution.
2. Whether the WCJ improperly considered an earning power assessment, when the Bureau Regulations were allegedly not followed.
3. Whether the WCJ should have considered claimant’s felony conviction when determining if jobs identified in an earning power assessment were open and available.
4.Whether the WCJs decision was reasoned.
Holding:
1. The rational basis analysis must be used to determine the constitutionality of Section 204(a) of the Act, under the Pennsylvania Equal Protection Clause. Under that analysis, the language in the statute must be rationally related to a legitimate state interest. Here there is a legitimate state interest in preventing double recovery through the receipt of Social Security retirement benefits and total disability payments. Therefore, section 204(a) does not violate the Pennsylvania constitution.
2. The WCJ’s decision that the vocational expert followed the Bureau regulations was supported by substantial competent evidence in the record.
3. The purpose of the Act is to assess the effect a claimant’s work injury has on their ability to work. Non-work-injury related restrictions, caused by claimant’s conviction, (felony conviction limited how close claimant could be to certain locations and people) do not render the identified jobs as unavailable as that is not a work-injury related restriction.
4. The WCJ’s decision was reasoned, as there were multiple citations to the record which showed the basis for the WCJ’s opinion.
Background:
This was a lengthy opinion, and this claim has a long history. For the purposes of this decision, it was established that claimant worked for approximately 4 weeks before he sustained his injury. Claimant thus argued employer was not entitled to an ongoing Social Security Old Age credit when employers’ contribution was limited to the four (4) weeks claimant worked for employer before his injury.
As to the earning power assessment claimant alleged the vocational counsellor failed to timely send his initial report to claimant and his attorney. Since this mailing was to occur within 30 days, and did not, claimant argued the earning power assessment was invalid. Further, claimant argued the regulations required vocational counsellors to proactively declare or deny a financial interest in the employer, rather than an obligation to disclose an interest only if one exists.
As to claimant’s conviction, while we were prohibited from introducing evidence of claimant’s sex crime involving a minor, we were allowed to established claimant’s conviction limited how close he could get to certain people and places. Thus, a job may be unavailable, but not because of the work injury.
Thompson v. WCAB (Trustees of Univ. of Pennsylvania)
Decided: 1/18/22
Unpublished Memorandum Opinion
Issue:
Whether a Claim petition was properly denied for failure to provide timely notice of an injury to the employer.
Holding:
Timeliness of notice requires a factual inquiry. Here, the WCJ considered conflicting testimony and accepted testimony that claimant was made aware her symptoms were work related during a visit to her initial treating physician. The 120-day clock to provide notice began to run as of that visit rather than when she was subsequently made aware of work-relatedness by her second physician. Thus, the WCJ properly denied the claim.
Background:
In the Claim petition it was alleged that claimant’s upper extremity complaints were caused by her nursing duties. The litigation focused on whether claimant’s initial or current physician made her aware of her symptoms being caused by her employment. Claimant initially treated with Dr. Liebman, who, after a few months, referred claimant to Dr. Purewal. During her deposition, when asked when she first thought her symptoms were work related, claimant responded during a September 28, 2017 visit with Dr. Liebman. When testifying, in response to a question from the WCJ, claimant said she understood her symptoms were work-related after a February 20, 2018 visit with Dr. Purewal. The WCJ found clamant was aware of her work-related symptoms as of Dr. Liebman’s visit and thus, gave untimely notice. On appeal claimant argued her testimony about her visit with Dr. Liebman was not legally sufficient to show she was aware her symptoms were work related. The Court, rather than focusing on the legal sufficiency of the word’s claimant used, held the WCJ’s finding was supported by substantial competent evidence in the record and affirmed the Claim’s denial.
Kamp v WCAB (Green Acres Contracting)
Decided: 1/21/22
Issue:
Whether Section 319 of the Act (subrogation) violates the Equal Protection Clause of the Pennsylvania Constitution.
Holding:
Since Section 319 does not implicate a fundamental right it is subject to the rational basis analysis under the Equal Protection Clause. Section 319 is constitutional because it is rationally related to the promotion of the legitimate state interest of preventing employers from being responsible for the negligence of a third-party.
Background:
The claimant sustained accepted work injuries caused by a 2016 motor vehicle accident. Claimant began receiving total disability benefits. Two years into the claim, the parties entered into a Compromise and Release Agreement which resolved any and all specific loss benefits could receive. Claimant continued to receive total disability benefits. Claimant subsequently filed a third-party action, wherein it was determined that claimant sustained damages of over a million dollars. The third-party insurance policy limit was $150,000. The Employer’s subrogation lien, after the deduction of litigation costs and fees, exceeded the $150,000 recovery and the employer sought the entire amount of the remaining recovery. Claimant argued the employer could not subrogate because Section 319 violated the Equal Protection clause of the Pennsylvania Constitution. The Court, relying on well settled precedent, rejected claimant’s constitutional challenge. The Court explained the General Assembly properly drafted Section 319 to accomplishes the goals of preventing a claimant’s double recovery for the same injury, ensuring employers are not responsible for the negligence of a third party and preventing third parties from escaping liability for their negligent conduct.
Michael Trasatti v. WCAB (City of Chester)
Decided: 2/1/2022
Issue:
Claimant challenged employer assertion of a right to subrogation in his third-party recovery, arguing the benefits were paid under the heart and lung Act and thus, subrogation was prohibited.
Holding:
Since claimant did not present evidence regarding his receipt of heart and lung benefits and did not raise this issue until the matter was before the Appeal Board, WCJ’s award of subrogation was affirmed.
Background:
There is a rather lengthy factual history. In short, the claim involved a police officer who received total disability payments for a work injury and heart and lung benefits. Claimant was involved in a third-party action for his injuries and employer sought subrogation. Claimant argued the employer was not entitled to subrogation because the payments he received were pursuant to the Heart and Lung Act. By statute, there is no subrogation for heart and lung benefits payments. Here, however, the WCJ awarded the employer subrogation in the claimant’s third-party recovery. On appeal, the Court focused on the claimant’s failure to present evidence before the WCJ that he received heart and lung benefits and did not raise the receipt of those benefits until his appeal. The Court found the WCJ’s decision was supported by substantial competent evidence in the record and denied claimant’s appeal.
Bernie Steoschick v. WCAB (Air Products & Chemicals, Inc.)
Decided: 2/3/2022
Unreported Memorandum Decision
Issue:
In this appeal the Commonwealth Court addressed two issues regarding the Act 111 amendments to the Workers’ Compensation Act (new IRE section): (1) whether Act 111 can be constitutionally applied to workers whose injuries occurred before Act 111’s October 24, 2018 effective date; and, (2) whether Act 111 contains sufficiently specific language to make the law retroactive.
Holding:
Relying on its decision in Rose Corp v. WCAB (Espada) 238 A.3d 551 (Pa Commonwealth 2020) the Court answered both of the above issues in the affirmative.
Background:
The claimant sustained a work-related injury in March 2009. Pursuant to a July 26, 2011 IRE, claimant’s status was modified from total to partial disability. Following the Pa. Supreme Court’s decision in Protz 161 A3d 827 (Pa 2017 ((prior IRE section was unconstitutional). claimant filed for reinstatement. The WCJ issued a decision in accordance with Whitfield v. WCAB (Tenant Health System Haneman LLC) 188 A3d 599 (Pa Commonwealth 2018) (holding the proper date for modification based on an unconstitutional IRE is a date the reinstatement petition was filed).
Following the enactment of Act 111, in February 2019, a new IRE was performed, and the employer filed for modification based on the new IRE. In the decision, the WCJ reinstated claimant to total disability status as of the date the Reinstatement petition was filed and modified claimant’s status back to partial disability as of the date of the new IRE. (Post Act 111 IRE). Employer was credited for the weeks of partial disability between the first IRE and the date the reinstatement petition was filed.
Before the Commonwealth Court claimant argued the Remedies Clause of the Pennsylvania constitution was violated because continuing to credit prior weeks of partial disability gives force to an unconstitutionally invalid statute and deprives claimant of a vested right to workers’ compensation. The Court rejected this argument noting the vested right protected by the Remedies Clause must have become a title, legal or equitable to the present or future enforcement of a demand or a legal exemption from a demand made by another. The Court then explained that §413 of the Act, makes clear a claimant’s benefit status may be modified, reinstated, suspended or terminated by a WCJ, and as such claimant’s do not have a vested right in workers’ compensation benefits and the remedies clause does not apply.
Claimant then argued the employer’s modification petition should be denied because Act 111 did not contain language which gave it retroactive application. The Court rejected this argument explaining in passing Act 111 the General Assembly understood employers and insurers detrimentally relied on the former IRE provisions because they did not pursue other methods of modification. The General Assembly did not intend for the employers and insurers to bear the entire burden of the prior IRE provision being declared unconstitutional and as such employers/insurers were provided a credit for the weeks of compensation, whether total or partial in nature previously paid.
Fidelity Contracting LLC. V. WCAB (Risbon)
Decided: 2/15/22
Unpublished Memorandum Opinion
Issue:
Two Issues presented to the Court were: (2) whether a WCJ’s decision was supported by substantial competent evidence; and, (2) whether the WCJ issued a reasoned decision as required by Section 422 of the Act
Holding:
The decision is supported by substantial competent evidence in the record and was reasoned.
Background:
Claimant filed a Claim petition alleging his job duties caused left hip and groin conditions to worsen, resulting in multiple surgeries. Both parties submitted medical expert testimony regarding the nature of claimant’s alleged conditions and whether he was disabled. The Court declined to consider whether the medical experts relied on appropriate information and offered a competent opinion. Instead, the Court noted that the WCJ decision was based on the weighing of the evidence and there was substantial competent evidence in the record to support the WCJ’s conclusion.
Moody v WCAB (American Heritage FCU)
Decided: 2/15/22
Unreported Memorandum Opinion
Issue:
Whether the Act 111 amendments (new IRE provisions) which became effective October 24, 2018, were unconstitutionally applied to a June 2013 work injury.
Holding:
The Act 111 amendments are constitutional because they did not affect claimant’s’ substantive rights by imposing new legal burdens or otherwise change claimant’s status. The amendments are procedural in nature because they merely establish a means for an employer to seek a change in status.
Background:
Claimant’s injury was sustained on June 4, 2013. In 2017, Protz declared the prior IRE provisions were unconstitutional. The Act 111 amendments IRE Section became effective October 24, 2018. Clamant argued it was unconstitutional for the General Assembly to enact a law that creates a new mechanism to impair rights that vested prior to the amendment. The Commonwealth Court relying on several recent decisions, explained that a vested right was not affected. Further, the Court explained the amendments did not change claimant’s status, it simply created a mechanism for an employer to seek a modification of benefits.
Johnson v WCAB (Driversource, Inc.)
Decided: 2/24/2022
Unpublished Opinion
Issue:
An instance where there is an accepted injury, employer filed for Termination of benefits and claimant filed a Review petition to amend the injury definition, did the WCJ err in terminating claimant’s benefits.
Holding:
Since the WCJ’s findings were supported by substantial competent evidence, the grant of the Review and Termination petitions were affirmed.
Background:
Claimant had an accepted injury and employer filed a Termination petition. Claimant then filed a Review petition and employer relied on the testimony of its medical expert and a supplemental report issued after the Review petition. The WCJ granted the Review petition but found employer’s medical expert sufficiently addressed all injuries and terminated benefits. The Court dismissed arguments that employers’ medical experts’ opinions were equivocal or not supported by substantial competent evidence. Claimant raised the argument that a termination cannot be granted unless the IME report, upon which the termination is based, must be issued with a Notice of Ability to Return to Work. The Court found there was no authority for claimant’s position and rejected that argument.
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