May 2, 2023
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.
Mar 31, 2023
ANTHONY J. BILOTTI & ASSOCIATES, LLC
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
3/1/2023 – 3/29/2023
MEDICAL MARIJUANA
Teresa L. Fegley, as Exec. of the Est. of Paul Sheetz v. Firestone Tire & Rubber (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023
Issues:
(1) Whether Section 2102 of the MMA applies to WC carriers and overrides the requirements of the WC Act and the Board’s Regulations that mandate insurers pay for/reimburse the cost of medical treatment that is reasonable, necessary, and related to an accepted work injury? (2) Whether the Board erred by concluding that Section 2102 of the MMA precludes reimbursement for medical marijuana to a claimant using medical marijuana to treat an accepted work injury when it has been determined that such treatment is related to the work injury and is reasonable and necessary? (3) Whether reimbursement of Claimant’s medical marijuana treatment would cause the WC carrier to violate federal law?
Background:
Claimant sustained an injury during the course and scope of his employment with Employer. As a result, thereof, Claimant received medical treatment which included two back surgeries. Due to the severe pain in his back and legs, Claimant’s doctor prescribed opiates and narcotics, including OxyContin. Decades later, at the recommendation of his doctor, Claimant began taking medical marijuana in 2019, with the hope of eliminating the need for the opiates and narcotics he had been taking. Medical marijuana afforded Claimant pain relief and reduced his need for the opiates and narcotics. As a result of taking medical marijuana, Claimant weaned himself off Diazepam and OxyContin. In 2019, a UR determination declared that Claimant’s medical marijuana use was reasonable and necessary. Subsequently, Claimant filed a Penalty Petition, alleging that Employer violated the WC Act by failing to pay for his medical marijuana treatment, despite that the UR Determination declared that such treatment was reasonable and necessary. The WCJ denied the Penalty Petition, concluding that Claimant failed to prove that Employer’s refusal to pay for the medical marijuana treatment violated the WC Act.
Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.
Holding:
The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court also examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within this Commonwealth. Further, the MMA contains an immunity provision protecting patients from government sanctions. Moreover, the Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. As a preliminary matter, the Court held that the Employer did not waive Section 2102 of the MMA as a defense because Employers had raised such matters as a defense below. The Court also noted that, consistent with the rules of statutory interpretation, given that Worker’s Compensation carriers are insurers under the Insurance Law, they must also be held to be insurers for purposes of the MMA, and that the provisions of the MMA apply to WC carriers. Further, the plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” While the MMA mandates that nothing in the MMA shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law, “reimbursement” would not cause the WC carrier to violate federal law, or be at risk of facing federal prosecution, because, section 841(a) of the Federal Drug Act only provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Reimbursing Claimant for his out-of-pocket expenses for his lawful use of medical marijuana as a reasonable and necessary treatment for his work injury would not require Employer’s WC carrier to do any of the above prohibited acts.
Therefore, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. In support of this holding, the Court also noted that the MMA specifically mandates that no medical marijuana patients shall be denied any rights for lawful use of medical marijuana and that the WC Act provides employees a statutory right to WC medical expenses that are reasonable and necessary to treat a work injury.
Reversed and Remanded.
CONCURRING AND DISSENTING OPINION BY JUDGE FIZZANO CANNON
In a dissenting opinion, Judge Cannon, joined by Judge McCullough, concurred in the majority’s conclusion that Employer did not waive its ability to assert a defense of illegality. However, the dissent asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA, relating to insurers, provides that nothing in the act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.
Therefore, the plain language of the MMA does not require reimbursement for medical marijuana prescribed to a claimant to treat a work injury. The MMA does not expressly address “reimbursement” of medical marijuana costs, but rather, provides that the MMA cannot be construed to require an insurer to provide “coverage” of such costs. “Coverage” and “reimbursement” are two sides of the same coin and it makes no sense for Claimant to argue that reimbursement may be required where coverage may not. As for the federal Controlled Substances Act’s provision that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, an insurer reimbursing for medical marijuana costs under state law could be subject to federal prosecution, as either an aider/abettor or an accessory after the fact. The provider distributes and/or dispenses medical marijuana and necessarily violates federal criminal law by doing so. Further, the Court has previously held that, where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.
Edward Appel v. GWC Warranty Corp. (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023
Issue:
Whether the Board erred by concluding that, based on the plain language of the Medical Marijuana Act (MMA), an insurer or employer cannot be required to pay for medical marijuana?
Background:
Claimant sustained a work-related herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease. Employer accepted Claimant’s injury via a Stipulation of Facts approved in a 2015 WCJ Decision. Claimant received extensive treatment for his work injury, including two lower back surgeries. Claimant continued to experience chronic low back pain and symptoms in his legs for which his doctor prescribed opioids. Claimant received a medical marijuana card and used medical marijuana while he was weaning himself off the opioids. The Claimant filed the Review Medical Petition seeking a determination that his use of medical marijuana was causally related to his work injury and an order directing Employer to reimburse him for the cost thereof. The WCJ partially denied the Review Medical Petition. The WCJ concluded that Claimant met his burden of proving that his use of medical marijuana was related to the accepted work injury, but that Claimant failed to prove that Employer must reimburse him for his out-of-pocket medical marijuana expenses pursuant to Section 2102 of the MMA, which does not require an insurer or health plan to provide coverage for medical marijuana. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.
Holding:
The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides, that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court then examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within Pennsylvania. Further, the MMA contains an immunity provision protecting patients from government sanctions. The Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. The MMA provides that nothing in the MMA shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. While a plain reading of the statute does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either. Specifically, Section 2102 of the MMA does not prohibit an insurer or health plan from reimbursing payment for medical marijuana. The plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” Thus, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. The General Assembly intended that covered patients have access to the latest medical treatments. Any other interpretation would lead to an unintended, absurd result. Thus, because Section 2102 of the MMA does not prohibit insurers from covering medical marijuana, the WC Act mandates employers to reimburse claimants for out-of-pocket costs of medical treatment which has been found to be reasonable and necessary for their work-related injury. The WCJ concluded that the medical marijuana use was causally related to the work injury, therefore, the Employer was required to reimburse Claimant for his out-of-pocket costs under the WC Act.
Finally, since Employer is not prescribing marijuana, but only reimbursing Claimant for his lawful use thereof, Employer is not in violation of the Federal Drug Act.
Reversed.
DISSENTING OPINION BY JUDGE FIZZANO CANNON
In a dissenting opinion, Judge Cannon, joined by Judge McCullough, asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA legalized medical marijuana for the first time and in a limited manner; in doing so, it made clear that it was not to be construed to require insurance coverage of medical marijuana. This makes sense, since medical marijuana has not yet been approved by the FDA as safe and effective for use in medical treatment, and its use is not legal under federal law. The legislature, not the courts, must effect any change in the MMA’s stated policy and the balance struck regarding insurance coverage. Therefore, this Court must affirm the Board’s holding that the MMA cannot be read to mandate reimbursement for prescribed medical marijuana provided to WC claimants. The provider necessarily violates federal criminal law by distributing or dispensing medical marijuana. Where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.
IMPAIRMENT RATING EVALUATIONS
Charles McCloud v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum
Opinion Decided: March 29, 2023
Issue:
Whether the Claimant’s TTD should have been reinstated as of the date of the original impairment rating evaluation (IRE) in 2012?
Background:
In 2003, Claimant suffered a work-related injury in the course and scope of his employment with the City of Philadelphia (Employer). Employer issued an amended Notice of Compensation Payable accepting the work injury. In 2012, Claimant underwent an IRE that found Claimant had a whole-body impairment of three percent. Thereafter, Employer filed a Petition to Modify Compensation Benefits, seeking to modify Claimant’s TTD status to partial disability status based upon the IRE. In 2014, the WCJ granted Employer’s petition pursuant to an agreement of the parties. Following Protz II, in which the Pennsylvania Supreme Court declared the IRE provision found in Section 306(a.2) of the Workers’ Compensation Act (Act) was an unconstitutional delegation of legislative power, Claimant filed a Reinstatement Petition seeking reinstatement to TTD status as of August 27, 2012, the date of the IRE. The WCJ granted Claimant’s Reinstatement Petition but, consistent with this Court’s decision in Whitfield, reinstated Claimant to TTD status as of November 26, 2019, the date Claimant filed his Reinstatement Petition. The Claimant appealed to the Board, and the Board affirmed.
Holding:
In Whitfield, the Court held that claimants who file a reinstatement petition to have their disability status reinstated to TTD following Protz are only entitled to reinstatement as of the date of filing the reinstatement petition. Claimant falls into this category and his date of reinstatement is controlled by Whitfield. Claimant’s numerous arguments as to why he should be reinstated as of the date of the IRE are not novel and have been previously rejected by the Court. The Court has repeatedly declined to give full retroactive effect to Protz in circumstances, such as this, where the claimant was not actively litigating the change in their disability status at the time Protz was decided. Claimant’s disability status was properly reinstated to TTD as of the date he filed his Reinstatement Petition.
Affirmed.
Deborah Reber v. R.E. Shenker/Little Lexington Farms (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 3, 2023
Issues:
Whether Claimant is entitled to reinstatement of her total disability benefits retroactive to the date of her IRE? Whether the WCJ erred in applying Whitfield rather than the stricter evidentiary burden required by this Court in Rawlins?
Background:
Claimant sustained a work-related head injury and was awarded TTD benefits. In May 2010, Claimant underwent an Impairment Rating Evaluation (IRE). The IRE yielded a 36% impairment rating which fell below the statutory threshold under former Section 306(a.2) of the Act. Thereafter, Employer filed a notice of change to disability status (Notice of Change), which documented a change in Claimant’s disability status from “total” to temporary “partial” disability (TPD) based on the IRE results. Claimant did not directly challenge the IRE’s validity or the change to her disability status. Several years after Claimant’s change to TPD status, this Court issued its decision in Protz I, which did not strike former Section 306(a.2) in its entirety but remanded the matter to the Board with instructions that any IRE must adhere to the Fourth Edition of the Guides, which was in effect at the time the General Assembly enacted former Section 306(a.2). In March 2016, prior to the expiration of her 500 weeks of TPD benefits, Claimant filed a petition challenging her IRE as unconstitutional, because it had been conducted pursuant to the Sixth Edition of the Guides and sought reinstatement of TTD benefits as of her IRE date. While Claimant’s petition was pending, the Pa. Supreme Court issued its decision in Protz II, which struck former Section 306(a.2) from the Act in its entirety. In February 2018, the WCJ granted Claimant’s petition, reinstating her TTD benefits as of the date she filed for reinstatement. The WCJ concluded that because Claimant did not challenge the constitutionality of her IRE until after the decision in Protz I, she was only eligible for reinstatement as of the date she filed her petition, not the date of her IRE. In February 2019, the Board remanded to the WCJ to allow the parties an opportunity to present evidence and argument. The WCJ granted Claimant’s reinstatement petition as of the date that she filed for reinstatement. The WCJ found that Claimant satisfied her burden of proof under Whitfield through her own credible testimony that the previous work-related head injury was serious and created ongoing issues for daily living which prevented return to her pre-injury position.
Holding:
The retroactive effect of the Protz decisions is settled. Here, Claimant did not challenge the constitutionality of her IRE initially, nor did she commence this litigation until after Protz I was decided. Thus, the WCJ correctly reinstated Claimant’s benefits as of the date she filed for reinstatement. Following an unconstitutional IRE, a claimant may establish that she is entitled to reinstatement to total disability status through credible testimony of her ongoing injury. In Rawlins, this Court distinguished Whitfield based on a stipulation entered between the parties. The claimant specifically agreed to a modification of his benefit status. The Rawlins distinction is inapplicable here because the Notice of Change does not constitute a stipulation. Claimant did not consent to the change in her disability status but, at most, simply declined to pursue a legal challenge to the modification, a perfectly reasonable decision considering the prevailing law at the time. Accordingly, the WCJ properly applied the Whitfield evidentiary burden. The WCJ properly reinstated Claimant’s benefits as of the date that she petitioned for reinstatement. Further, Claimant did not agree to the modification of her disability status; therefore, the WCJ properly required Claimant to establish her entitlement to reinstatement of her benefit status by introducing credible testimony of her ongoing injury.
Affirmed.
David Smuck v. Dana Holding Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 22, 2023
Issue:
Whether the Board erred as a matter of law in holding that Act 111 is to be applied retroactively to cases wherein the cause of action accrued/work injury occurred prior to the enactment of Act 111?
Background:
Claimant sustained a work-related injury in 2000. Employer issued a Notice of Compensation Payable and began paying Claimant temporary total disability (TTD) benefits. In 2020, Claimant underwent an IRE, which demonstrated a 10% impairment rating based on the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (6th edition AMA Guides). Employer filed its Modification Petition on June 4, 2020, requesting Claimant’s disability status be changed from TTD to temporary partial disability (TPD) benefits as of the IRE date. The WCJ concluded Employer met its burden of proof under Act 111 and granted Employer’s Modification Petition, modifying Claimant’s benefits from TTD to TPD effective the IRE date. The Board affirmed.
Holding:
In response to our Supreme Court’s decision in Protz, in which the Court held the IRE provisions contained in Section 306(a.2) of the Act violated the nondelegation doctrine of the Pennsylvania Constitution, the General Assembly enacted Act 111 on October 14, 2018. While the IRE process remains substantially the same as it was before, Act 111 requires a physician use the 6th edition AMA Guides when performing an IRE and permits modification to partial disability status if a claimant has a whole-body impairment of less than 35%. The Court has previously considered and rejected arguments like Claimant’s regarding the retroactive application of Act 111. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial. The application of Act 111 did not automatically change Claimant’s disability status or otherwise deprive him of vested rights under the Act. Claimant had no vested right in his benefits as calculated at the time of his injury because there are reasonable expectations under the Act that benefits may change over time. Thus, Claimant’s argument that Act 111 is not applicable to his case because his injury occurred before Act 111’s enactment lacks merit.
Affirmed.
MODIFICATION OF BENEFITS
Salvatore Taibi v. Borough of Slatington & Emp. Mut. Cas. Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided March 3, 2023
Issue:
Whether the WCJ erred in modifying claimant’s wage loss benefits, as the market research associate position failed to consider Claimant’s need for a cane, and as the position was only available for a short period of time?
Background:
Claimant suffered a work injury to his right knee and lower back in 2012, while working as a police sergeant for the Borough of Slatington (Employer), which Employer accepted through issuance of a Notice of Compensation Payable (NCP). Based on the opinions from independent medical examinations (IME) of Claimant in 2018 and 2019, that Claimant could return to work in a sedentary capacity, Employer issued a Notice of Ability to Return to Work. Thereafter, Employer filed a petition to modify Claimant’s wage loss benefits (Modification Petition), based on the availability of work within Claimant’s physical restrictions. The WCJ modified Claimant’s workers’ compensation wage loss benefits based on Claimant’s ability to return to work and the availability of a position within Claimant’s physical restrictions. The Board affirmed.
Holding:
The court was only concerned with whether the market research associate position with Solomon was not actually available, given Claimant’s need to walk or stand with the aid of a cane, as Claimant did not otherwise argue that he could not perform the duties of that position. At no point did employer’s witnesses, who were found to be credible, testify that the duties of market research associate could not be performed while using a cane.
The WCJ may not have explicitly found that Claimant could perform the duties of a market research associate while using his cane. However, based on the sedentary nature of the job and Claimant’s ability to perform those duties while sitting, such a finding was implicit. Further, there was evidence presented that the job with Solomon was available beyond the initial training period during which his wages would be funded by Employer’s workers’ compensation insurer. The Employer witnesses credibly testified that Solomon would pay Claimant’s wages after the training period, Claimant’s employment would be ongoing, and the market research associate position was a permanent one. Therefore, Employer presented substantial evidence to sustain its burden of demonstrating that Claimant’s earning power had increased, based on the availability of a job within Claimant’s physical, intellectual, and vocational abilities.
Affirmed.
TIMELINESS OF NOTICE OF AN UNINSURED CLAIM
Walter Swierbinski v. Scranton Restaurant Supply and UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion.
Decided: March 20, 2023
Issue:
Whether the Board erred in concluding that the UEGF was not liable for Claimant’s benefits because Claimant failed to timely notify the UEGF of his work injury, where Employer paid Claimant wages in lieu of workers’ compensation?
Background:
On October 10, 2017, Claimant suffered a work injury to his left wrist, right elbow, and right shoulder after falling down a flight of stairs while in the course and scope of his work as a restaurant equipment repairman. Claimant notified Employer of his work injury that day. He returned to work in a light duty capacity for a few weeks in January or February of 2018. Employer paid Claimant’s regular wages through June 2018, even though he wasn’t working. Claimant first became aware that Employer did not have workers’ compensation insurance in November 2017. Claimant filed a claim petition against Employer in 2019, seeking total disability benefits from October 10, 2017, and ongoing. On July 24, 2019, Claimant filed a Notice of Claim Against Uninsured Employer (Notice). Thereafter, on August 28, 2019, Claimant filed a claim petition against the Fund. The Fund filed an answer denying liability for Claimant’s work injury on the basis that Claimant failed to timely notify the Fund of his work injury. Counsel for the Fund acknowledged that Employer paid Claimant wages in lieu of compensation but asserted that Employer’s actions did not bind the Fund with respect to paying Claimant’s workers’ compensation benefits. Employer went out of business in early 2019 and had filed for bankruptcy. The WCJ granted the claim petition filed against the Fund. The WCJ found that, because Employer paid Claimant wages in lieu of compensation, the Fund was estopped from denying liability for Claimant’s work injury. The Fund appealed to the Board. The Board reversed, noting that Section 1603(b) of the Act barred the payment of compensation by the Fund if notice was not provided within 45 days. The Board held that amended Section 1603(b) applied retroactively unless a claimant had been paid compensation “under the Act or an award by the WCJ.” The Board reasoned that Employer’s payment of wages in lieu of workers’ compensation did not constitute compensation paid under the Act or pursuant to an award by a WCJ, in part because Employer had not formally accepted liability for Claimant’s work injury. Accordingly, the Board held that Claimant was required to notify the Fund within 45 days of the date he knew that Employer was uninsured, which occurred in November 2017. The Board reversed the decision of the WCJ to the extent it imposed liability upon the UEGF for the payment of Claimant’s workers’ compensation benefits. The Board’s order otherwise modified the WCJ’s decision to reflect that Employer was solely liable for payment of Claimant’s workers’ compensation benefits.
Holding:
Per Section 4(2) of Act 132, the amendment to Section 1603(b) applies “retroactively to claims existing as of October 24, 2018, for which compensation has not been paid or awarded.” An employer voluntarily paying an injured employee wages in lieu of workers’ compensation benefits, and who failed to file a Notice of Compensation Denial, could not later deny that the employee’s injury was work related. Payments in lieu of compensation qualify as compensation paid or awarded under Section 4(2) of Act 132.
An employer effectively admits liability under the Act by paying wages in lieu of compensation. Further, payments made in lieu of compensation act to toll the statutory period for filing a claim petition under Section 315 of the Act, provided payments are not made for services rendered, but to compensate a claimant’s lack of earning power, “just as if they had been formal payments rendered under the Act.” The informality by which Employer tendered its payments in lieu of compensation is irrelevant under the applicable statutory provisions and case law. Employer continued to pay Claimant’s wages until June 2018, including periods during which Claimant suffered wage loss due to his work injury. These payments constitute compensation “paid or awarded” under Section 4(2) of Act 132. Claimant’s receipt of payments in lieu of compensation constitutes compensation “paid or awarded” under Section 4(2) of Act 132. The Board erred in concluding otherwise, and the Court reversed the Board’s order to the extent it concluded that Claimant’s claim petition against the Fund was barred by retroactive application of the amendment to Section 1603(b) of the Act and, based on that conclusion, reversed the WCJ’s decision to grant Claimant’s claim petition against the Fund. The Court affirmed that part of the Board’s order that granted the claim petition filed by Claimant against Scranton Restaurant Supply (Employer). Employer is primarily liable for payment of Claimant’s workers’ compensation benefits, including any reasonable and necessary medical expenses that are causally related to Claimant’s October 10, 2017 work injury.
The Fund is secondarily liable for payment of Claimant’s workers’ compensation benefits, including any reasonable and necessary medical expenses that are causally related to Claimant’s work injury, pursuant to the applicable provisions of the Workers’ Compensation Act.
Reversed in part and affirmed in part.
COURSE AND SCOPE OF EMPLOYMENT
William Broomall v. Alpha Sintered Metals, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 3, 2023
Issue:
Whether Claimant’s left shoulder injury, which occurred at home, upon returning from therapy for his accepted right shoulder work injury, was causally related to that accepted injury?
Background:
Claimant injured his right shoulder while pulling on a wrench. Employer issued a Notice of Compensation Payable (NCP) for medical treatment only. As the result of the incident Claimant attended physical therapy. While Claimant was returning home from physical therapy, as he was getting out of his car, he slipped and fell on his icy driveway, sustaining an injury to his left shoulder. Claimant underwent surgery on his left shoulder. Claimant filed a review petition, seeking to have the left shoulder injury included as part of the original work injury. The WCJ denied and dismissed Claimant’s review petition on the ground that Claimant’s fall at home, following a physical therapy appointment, was not causally related to Claimant’s acknowledged right shoulder work injury. Claimant appealed to the Board, which affirmed the decision of the WCJ.
Holding:
When an injured employee develops further physical or psychological difficulties, an employer is responsible not only for the direct and immediate consequences of a work- related injury, but also for injuries that are causally related to the accepted work injury. A claimant who seeks to amend a notice of compensation payable to include a new and different injury has the burden of proving that the original work injury caused the additional injury. A “but for” test has been used in certain instances to establish causation, in relation to the original injury, when a claimant sustains separate injuries from a subsequent dissociated event that he otherwise would not have sustained if it was not for a previously incurred work injury. Here, the Claimant did not sustain his left shoulder injury while driving directly to his physical therapy session. Travel to the appointment is necessary to attend an appointment. However, this Claimant was not furthering Employer’s interests at the time he fell because he was home. Claimant’s injuries occurred after Claimant had finished his physical therapy appointment, left the
facility, completed his return trip, and was standing outside of his house on his own snow and ice-covered driveway. All activity related to his therapy appointment had ended. The injury Claimant sustained at home was not causally related to the accepted work injury
Affirmed.
PENALTIES
Medical Revenue Associates v. Sue Ellen Kanefsky (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 22, 2023
Issue:
Whether the WCJ abused its discretion on awarding a penalty as Claimant’s most recent penalty petition, should have been dismissed?
Background:
Claimant, a medical biller, sustained a disabling work-related injury when she fell on black ice in Employer’s parking lot in 2015. She filed a claim petition in 2017, which Employer contested. A WCJ granted her claim petition in 2019. The WCJ also granted Claimant’s penalty petition based on Employer’s failure to timely file responsive documents with the Bureau of Workers’ Compensation (Bureau) when it had actual notice that Claimant had been injured. Shortly thereafter, in 2019, Employer’s insurer drafted a third-party settlement agreement relating to Claimant’s $650,000 resolution of a third-party claim arising from the 2015 incident. The agreement, which was never finalized because Claimant did not sign it, did not include an accrued lien amount based on wage benefit payments already made by Employer. The agreement indicated that after deduction of attorneys’ fees and litigation expenses from the third-party recovery, $370,988.66 would remain against which Employer could secure a subrogation interest. Employer’s calculations indicated that it would be responsible for 42% of Claimant’s future benefits until its subrogation lien, the amount of which was unspecified in the document, was fully recovered. The parties agreed that Employer could refrain from payment of benefits based on the 2019 WCJ decision until after a voluntary mediation concluded. The mediation in early March 2019 was not successful and Claimant filed a second penalty petition on alleging that Employer failed to pay benefits in accordance with the 2019 WCJ decision. Employer began making payments to Claimant but unilaterally deducted amounts representing its subrogation interest. Employer subsequently filed petitions formally asserting its subrogation interest without indicating a specific amount that it had expended or sought to recover. In 2019, the WCJ issued an interlocutory order which directed Employer to pay Claimant’s due and outstanding benefits, but deferred payment of the penalty until the pending petitions were resolved. Claimant subsequently filed a third penalty petition, alleging that Employer still had not paid Claimant all the past benefits due and had wrongly reduced Claimant’s ongoing benefits unilaterally. In 2020, the WCJ issued a decision resolving Employer’s subrogation petitions and Claimant’s first and second penalty petitions for nonpayment. The WCJ denied Employer’s subrogation petitions, ordered Employer to pay past due benefits as well as ongoing benefits, both without a subrogation deduction, and granted Claimant’s first and second penalty petitions for nonpayment. Employer appealed this decision to the Board and requested supersedeas. The Board issued a supersedeas order in 2020 stating that Employer could defer payment of any outstanding penalties pending the Board’s merits decision but denying Employer’s request in all other respects.
Employer began paying Claimant’s benefits without subrogation deductions but did not pay Claimant any of the amounts it previously deducted. While Employer’s appeal was pending before the Board, Claimant filed another penalty petition. Employer argued that Claimant’s most recent 2020 penalty petition was precluded because there was no “new” misconduct alleged against Employer. In a 2021 decision, which underlies this appeal, the WCJ concluded that Claimant had successfully asserted new misconduct and imposed a 50% penalty against Employer. On June 3, 2021, just after the 2021 WCJ decision was issued, the Board issued its decision on Employer’s appeal of the WCJ’s 2020 decision.
The Board concluded that the WCJ had no basis to deny Employer’s petitions asserting subrogation rights and reversed the WCJ in that respect and remanded to the WCJ to determine the amount of Employer’s subrogation lien. The Board also vacated the 2020 WCJ’s award of penalties, directing the WCJ on remand to recalculate any outstanding penalties. On November 17, 2021, the Board issued its decision resolving Employer’s appeal of the 2021 WCJ decision, concerning Claimant’s most recent 2020 penalty petition. The Board affirmed, agreeing that Employer failed to comply with the Board’s 2020 supersedeas order.
Holding:
There is no exception for subrogation in the law requiring employers to pay benefits in the absence of an agreement or order allowing them to evade that obligation. As such, an employer generally may not engage in “self-help” to reduce or withhold benefits payments. Noncompliance in this regard may, or may not, warrant a penalty, depending upon the facts. An employer’s decision to unilaterally reduce a claimant’s benefit payments to satisfy its subrogation lien technically violates the Act and may be subject to a penalty. The Courts have consistently treated the employer’s subrogation calculations as at least relevant to evaluating its overall conduct. An employer may be able to avoid a penalty, or have a penalty reversed, if a WCJ ultimately comes to the same conclusion as the employer in terms of the amount and terms of recoupment. However, where an employer unilaterally reduces payments and makes the correct calculations but commits additional misconduct, such as failing to properly assert subrogation rights so that the WCJ may properly calculate amounts due to the claimant, a penalty is more likely to be upheld. The matter is fact-sensitive and within the WCJ’s discretion. The WCJ, in the decision here under review, granted Claimant’s third penalty petition for nonpayment.
While, correct indemnity payments had resumed, the Employer did not pay Claimant the amounts it had previously deducted from her benefits payments, in the apparent belief that its subrogation claim and right to reduce payments would ultimately be vindicated. This was contrary to the Board’s 2020 supersedeas order. At the time the Board issued its 2020 supersedeas order, Employer had been ordered by the WCJ, in three previous decisions, to pay Claimant the full amount due without subrogation deductions. Rather than paying upfront and seeking reimbursement from the Supersedeas Fund after the fact, Employer assumed the risk that if it did not pay Claimant back for its previous deductions, it would be subject to a penalty. The imposition of a penalty is always within the WCJ’s discretion, and in the context of an employer’s unilateral subrogation deductions, the Court has upheld penalties where the WCJ determined some additional misconduct on the employer’s part, even if the employer’s calculations were ultimately correct. Here, the most recent WCJ order found that Employer violated the Board’s 2020 supersedeas order by failing to pay Claimant the back due amounts Employer had deducted from Claimant’s benefits, which had also been ordered in the previous WCJ opinions. Employer’s conduct here was egregious considering its disobeying repeated orders specifically directing it to repay the deducted amounts. The WCJ therefore did not abuse discretion by imposing the penalty.
Affirmed.
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
03/01/2023 – 03/29/2023
TERMINATION’S EFFECT ON ELIGIBILITY FOR BENEFITS
Judy Thorpe v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-0689-20; 2023 WL 2395067
Decided: 03/08/2023
Background:
Thorpe began working for the Juvenile Justice Commission (JJC) in April 2005. Following some incidents, in January 2008 the JJC directed Thorpe to undergo a fitness for duty evaluation. She refused to participate, and she was removed from employment for that reason in August 2008. Thorpe then pursued a series of legal actions following her removal, including her union filing a grievance, and an action in the Law Division for discrimination and unlawful retaliation, both of which upheld her termination. In 2018, Thorpe filed an application with the Board for ordinary disability benefits. The Board determined that her alleged disability was not the reason she stopped working in August 2008, and instead the record shows that she was not permitted to apply for disability retirement because she had been involuntarily removed from her employment. The Board determined that Thorpe was not eligible to apply for ordinary disability retirement benefits. She appealed, and an August 2020 decision concluded that because the JJC removed Thorpe from employment on disciplinary grounds, she was not eligible to apply for pension benefits. Thorpe appealed. Thorpe argues that the JJC should not have been permitted to require her to submit to a fitness for duty exam, and alternatively that she left her position because of an alleged disability.
Holding:
The court stated that Thorpe’s arguments on appeal lack sufficient merit to warrant a written opinion. The court affirms for the reasons stated in the Board’s August 20, 2020 decision. The court held that there was no basis for disturbing the Board’s well-reasoned determination that Thorpe was not eligible for ordinary disability benefits. They stated that the record established that the JJC removed Thorpe from employment, and she was not successful in her challenges to that decision. The court also held that Thorpe did not leave her employment because of an alleged disability.
Affirmed.
EXPERT OPINIONS
Faye Brown v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-0021-21; 2023 WL 2618718
Decided: 03/24/2023
Background:
Brown worked as a Family Services Specialist II for the New Jersey Department of Children and Families in the Division of Child Protection and Permanency (DCPP). While serving as a DCPP family specialist, petitioner had five accidents resulting in injury; a knee injury in 2013 requiring surgery, a subsequent shoulder injury, another knee injury in 2014, a back injury in 2017, and a fall in 2018 when she injured her knees, hips, and shoulder. Her job duties included trips to the office and court, carrying large client files, transportation of children to appointments, making home visits to client families, supervision of visits, carrying out child removals, finding placement homes for children, physical removal of children’s belongings, transportation of children for evaluation, and transportation of parents to treatment facilities. Petitioner applied for accidental disability retirement benefits. The Board denied her application and petitioner appealed, now seeking ordinary disability benefits. An Administrative Law Judge (ALJ) heard the matter on September 1, 2020. Petitioner testified, as did Dr. David Weiss as an expert on her behalf, and Dr. Arnold Berman as an expert on behalf of the Board. The ALJ’s opinion found Dr. Berman presented a more persuasive opinion as to Petitioner’s permanency and disability and opined that petitioner’s subjective complaints did not cause her to be permanently and totally unable to perform her job duties. The Board adopted this decision as final. Petitioner appealed, arguing that the Board’s final decision was arbitrary, capricious, and unreasonable, and she met her burden of proving she is totally and permanently disabled.
Holding:
The court stated that they would consider two issues: “[c]ould the Board’s finding that petitioner was not totally and permanently disabled have been reached in sufficient credible evidence in the record? If not, did petitioner show by a preponderance of the credible evidence that she was totally and permanently disabled?” The court stated that in reaching its conclusions, the Board gave greater weight to Dr. Berman’s opinions than Dr. Weiss’s opinion, however, neither physician treated the petitioner, and instead relied on her voluminous medical history and her subjective complaints. Dr. Berman also premised his opinion that petitioner could work on the premise that her job was sedentary. The court states that the record is full of evidence that shows petitioner’s job was anything but sedentary. The court holds that based on the fact that Dr. Berman’s opinion that petitioner could work was based on a flawed assumption, there was insufficient credible evidence in the record to support the Board’s final decision. The court further concluded that the Board was arbitrary, capricious, and unreasonable in denying ordinary disability benefits. The court stated that the record shows there are no further issues of fact to be developed on remand that could shed further light on petitioner’s disability, and therefore the decision of the Board is reversed, and the court directs it to enter a finding of ordinary disability benefits for the petitioner.
Reversed.
IRREVOCABLE RESIGNATION’S EFFECT ON ELIGIBILITY FOR BENEFITS
Christopher Slimm v. Board of Trustees, Police and Firemen’s Retirement System
Superior Court of New Jersey, Appellate Division No. A-3183-20; 2023 WL 2604113
Decided: 03/23/2023
Background:
Slimm worked as a police officer for Winslow Township. In October 2018, he applied for accidental disability retirement benefits, alleging he suffered from PTSD following an incident where a suspect opened fire during a vehicle pursuit. Slimm refused to return to work after being ordered to in December 2018, and a disciplinary action was served on Slimm charging him with several offenses including failure to return to work. On January 29, 2019, Slimm and the Township entered into a written settlement, wherein the Township would dismiss the disciplinary action in return for Slimm’s resignation and agreement to not seek re-hire or reinstatement. The Board advised Slimm that it would not process his application for accidental disability retirement benefits, stating because he left his employment based on the voluntary settlement agreement, he was not eligible for a disability pension. Slimm appealed, and the Board sent the matter to an Administrative Law Judge (ALJ) for consideration. The Board filed a motion for summary decision because the facts were not in dispute and the question presented was solely one of law. The ALJ granted the Board’s motion, and the Board adopted the ALJ’s decision. Slimm followed with this appeal, arguing that the Board erred by failing to consider his application for accidental disability retirement benefits.
Holding:
The court analogizes the instant case to the case of Cardinale. In Cardinale, the appellant voluntarily and irrevocably resigned from his position as a police officer after being suspended for a positive drug test. This court held that when a PFRS member voluntarily and irrevocably resigns from active service, they are ineligible for disability retirement benefits and his claimed disability was irrelevant because an officer who irrevocably resigns cannot legally be returned to that position if he ever recovers from his disability, and thus is not eligible to apply for benefits. In this case, it is undisputed that Slimm irrevocably resigned from his position as a police officer, which automatically made him ineligible for disability retirement benefits. The court held that Slimm’s argument that he resigned due to his disability does not require a different result for two reasons. First, an irrevocable resignation automatically made him ineligible for retirement benefits. Second, even assuming a resignation based on a disability would make him eligible to apply for benefits, he did not sustain his burden of proving his resignation was based on his alleged disability, and the evidence including the settlement document he signed, establish it was to avoid litigating the pending disciplinary charges. Finally, the court held that there is no statutory basis for Slimm’s argument that he could satisfy NJSA 43:16A-8(2) by agreeing to waive his right to disability pension benefits if he were to recover from his disability, and the court rejects that argument.
Affirmed.
DISCRIMINATION CLAIMS
Ralph Nunez v. Middlesex County College
Superior Court of New Jersey, Appellate Division No. A-0484-21; 2023 WL 2592906
Decided: 03/22/2023
Background:
Plaintiff began worked at Middlesex County College (College) beginning in 1996. On September 1, 2017, plaintiff reported a work-related injury to his left shoulder and was on leave until April 11, 2018. On April 19, the College lodged a disciplinary complaint against him for working elsewhere while on workers’ compensation, theft, falsification of records, possession of a controlled dangerous substance, and violations of the public trust. A hearing was held, and plaintiff was ultimately terminated. Plaintiff answered no on his employment application in 1996 where it asked if he had ever been convicted of a crime. He was convicted of conspiracy to possess CDS in 1997, however, nothing in the College’s policies or the CNA required an employee to self- report a criminal conviction. Surveillance was conducted of plaintiff for seventeen days in September 2017 after his work injury. Sixteen of those days showed no involvement in work-related activity, but on the seventeenth day, plaintiff was observed arriving at a private residence that appeared to be under renovation, retrieving something from his car, and entering the residence. Plaintiff filed a complaint alleging that the College violated New Jersey’s Law Against Discrimination (LAD) and the anti-retaliation provision of the Workers’ Compensation Act (WCA). The Law Division judge found that the termination was not motivated by retaliation, instead it was motivated by a finding by the College that their employee engaged in fraud. He granted the College’s motion for summary judgment and dismissed plaintiff’s complaint. Plaintiff appealed and argues that the judge failed to conduct any analysis and substituted his own opinion for that of the trier of fact. Plaintiff contends that applying proper summary judgment standards and relevant precedent, he did establish a prima facie case of discrimination under the LAD and WCA.
Holding:
This court outlines the requirements to establish prima facia cases of discriminatory discharge, disability discrimination, and retaliation, and held that the motion record contains sufficient evidence of a prima facie claim under all three LAD causes of action, though his failure to accommodate claim is limited. For the purposes of defeating summary judgment, the court held that plaintiff produced sufficient evidence on the failure to accommodate claim limited to the period between when he was able to return to light duty, and when he did return to work without restrictions. The College’s argument is that plaintiff was terminated for legitimate non-discriminatory reasons namely that he falsified his employment applications and worked elsewhere while on medical leave. The court held that providing plaintiff with the favorable evidence and inferences in the motion record, he carried his burden for purposes of defeating summary judgment.The court held that plaintiff had not been convicted of a crime when he applied for a position at the College in 1996, so his answer on the application was truthful, and the College has not demonstrated that plaintiff was obligated to notify it of his later convictions. Additionally, the court held that there are disputed material facts as to whether plaintiff was working at another location while on leave.The court reversed the order granting the College summary judgment on plaintiff’s LAD claims and remanded the matter for trial on plaintiff’s allegations of disability discrimination, failure to accommodate, and retaliation. The court affirmed the dismissal of plaintiff’s LAD discrimination claim based on perceived disability.
Affirmed in part, Reversed in part.
Assembly Bill No. 1474/S5ll
New Jersey governor Phil Murphy signed Assembly Bill A1474/S511 into law on February 6, 2023. This bill addresses temporary workers and establishes employment protections for those workers.
Definitions
This bill defines temporary laborers as a person who contracts for employment in a designated classification placement with a temporary help service firm.
Designated classification placement means an assignment of a temporary laborer by a temporary help service firm to perform work in any of the following occupational categories as designated by the Bureau of Labor statistics of the United States Department of Labor:
• Other Protective Service Workers
• Food Preparation and Serving related Occupations
• Building and Grounds Cleaning and Maintenance Occupations
• Personal Care and Service Occupations
• Construction Laborers
• Helpers, Construction Trades
• Installation, Maintenance, and Repair Occupations
• Production Occupations
• Transportation and Material Moving Occupations
• Any successor categories as the Bureau of Labor Statistics may designate
Temporary help service firm is defined as any person or entity that operates a business which consists of employing individuals directly or indirectly for the purpose of assigning the employed individuals to assist the firm’s customers in handling temporary, excess, or special workloads, and who, in addition to the payment of wages or salaries to the employed individuals, pays federal social security taxes and State and federal unemployment insurance; carries workers’ compensation insurance as required by State law; and sustains responsibility for the actions of the employed individuals while they render services to the firm’s customers.
Requirements for Records
This bill requires a temporary help service firm to provide the temporary laborer a statement in English and in the language identified by the employee as their primary language containing the following information:
• the name of the temporary laborer
• the name, address, and phone number of the temporary help service firm, or the contact information of the agent facilitating the placement; its workers’ compensation carrier; the worksite employer or third party client; and the Department of Labor and Workforce Development
• the name and nature of the work to be performed
• the wages offered
• the name and address of the assigned worksite of each temporary laborer
• the terms of transportation offered to the temporary laborer (if applicable)
• a description of the position and whether it requires any special clothing, protective equipment or training
• whether a meal or equipment is provided
• the schedule and length of the assignment
• the amount of sick leave to which temporary laborers are entitled and the terms of use
The temporary help service firm is also required to keep records relating to sending one or more persons to work as temporary laborers, including:
• the name, address, and phone number of the third party client, including each worksite
• for each laborer: the name and address, specific location sent to work, type of work performed, number of hours worked, hourly rate of pay, and the date sent
• the name and title of the individual(s) at each third party client’s place of business responsible for the transaction
• any specific qualification of a temporary laborer
• copies of all contracts with the third part client and copies of all invoices
• copies of all employment notices
• the amount of any deductions taken from the temporary laborer’s compensation for food, equipment, withheld income tax, withheld Social Security deductions, and all other deductions
• verification of the actual cost of any equipment or meal charged to the temporary laborer
• the race, ethnicity, and gender of each temporary laborer or applicant
• any additional information required by the commissioner
The temporary help services firm also must provide temporary laborers with a detailed itemized statement on their paycheck stub or a form approved by the Commissioner listing the contact information for each third party client where the laborer worked, the number of hours worked at each third-party client, the rate of pay including overtime or bonuses, the total earnings for the pay period, the amount of each deduction, and any additional information required by the commissioner.
Rules Regarding Pay and Transportation
A temporary help service firm or third-party client, or contractor or agents of either, are prohibited from charging a fee to a temporary laborer to transport them to or from the designated work site.
A temporary staffing firm must hold the daily wages of the temporary laborer and make weekly, bi-weekly, or semi-monthly payments at the request of the temporary laborer.
A temporary services firm cannot charge a temporary laborer for cashing a check issued by the temporary help service form. Additionally, the total amount deducted for meals and equipment cannot reduce the temporary laborer’s earnings to fall below the state or federal minimum wage, whichever is greater. A temporary laborer ego is contracted by a temporary help services firm to work at a third-party worksite who is not utilized by the third-party client shall be paid as minimum of 4 hours of pay at the agreed upon rate.
A temporary help service firm cannot restrict the right of a temporary laborer to accept a permanent position with a third party client, restrict the right of the third party client to offer employment to a temporary laborer, or restrict the right of a temporary laborer to accept a permanent position. For any other employment.
This bill requires temporary staffing firms to pay temporary laborers assigned to work for a third-party client the same average rate of pay and equivalent benefits as a permanent employee performing the same or similar work of the third-party client, the performance of which requires equal skill, effort, and responsibility, and performed under the same working conditions.
Penalties
It is a violation for a temporary help services firm to retaliate against a temporary laborer for exercising any rights granted under this bill. The termination or disciplinary action by a temporary help services firm against a temporary laborer within 90 days of the person’s protected rights under this bill shall raise a rebuttable presumption of having done so in retaliation for the exercise of their rights, and such a retaliation will subject the temporary help services firm to civil penalties.
A temporary laborer alleging retaliation the relief afforded under this bill is the greater of all legal or equitable relief available, or liquidated damages equal to $20,000 per incident of retaliation, as well as reinstatement, attorney’s fees and costs.
This bill also provides to individuals a right of civil action in Superior Court if they are aggrieved by a violation of these rights.
The right of an aggrieved person to bring an action under this section terminates upon the passing of six years from the final date of employment by the temporary help service firm or the third party client or upon the passing of six years from the date of termination of the contract between the temporary help service firm and the third party client.
4866-4952-3546, v. 1
Mar 22, 2023
ANTHONY J. BILOTTI & ASSOCIATES, LLC
Edward Appel v. GWC Warranty Corp. (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023
Issue:
Whether the Board erred by concluding that, based on the plain language of the Medical Marijuana Act (MMA), an insurer or employer cannot be required to pay for medical marijuana?
Background:
Claimant sustained a work-related herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease. Employer accepted Claimant’s injury via a Stipulation of Facts approved in a 2015 WCJ Decision. Claimant received extensive treatment for his work injury, including two lower back surgeries. Claimant continued to experience chronic low back pain and symptoms in his legs for which his doctor prescribed opioids. Claimant received a medical marijuana card and used medical marijuana while he was weaning himself off the opioids. The Claimant filed the Review Medical Petition seeking a determination that his use of medical marijuana was causally related to his work injury and an order directing Employer to reimburse him for the cost thereof. The WCJ partially denied the Review Medical Petition. The WCJ concluded that Claimant met his burden of proving that his use of medical marijuana was related to the accepted work injury, but that Claimant failed to prove that Employer must reimburse him for his out-of-pocket medical marijuana expenses pursuant to Section 2102 of the MMA, which does not require an insurer or health plan to provide coverage for medical marijuana. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.
Holding:
The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides, that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court then examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within Pennsylvania. Further, the MMA contains an immunity provision protecting patients from government sanctions. The Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. The MMA provides that nothing in the MMA shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. While a plain reading of the statute does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either. Specifically, Section 2102 of the MMA does not prohibit an insurer or health plan from reimbursing payment for medical marijuana. The plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” Thus, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. The General Assembly intended that covered patients have access to the latest medical treatments. Any other interpretation would lead to an unintended, absurd result. Thus, because Section 2102 of the MMA does not prohibit insurers from covering medical marijuana, the WC Act mandates employers to reimburse claimants for out-of-pocket costs of medical treatment which has been found to be reasonable and necessary for their work-related injury. The WCJ concluded that the medical marijuana use was causally related to the work injury, therefore, the Employer was required to reimburse Claimant for his out-of-pocket costs under the WC Act. Finally, since Employer is not prescribing marijuana, but only reimbursing Claimant for his lawful use thereof, Employer is not in violation of the Federal Drug Act.
Reversed.
DISSENTING OPINION BY JUDGE FIZZANO CANNON
In a dissenting opinion, Judge Cannon, joined by Judge McCullough, asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA legalized medical marijuana for the first time and in a limited manner; in doing so, it made clear that it was not to be construed to require insurance coverage of medical marijuana. This makes sense, since medical marijuana has not yet been approved by the FDA as safe and effective for use in medical treatment, and its use is not legal under federal law. The legislature, not the courts, must effect any change in the MMA’s stated policy and the balance struck regarding insurance coverage. Therefore, this Court must affirm the Board’s holding that the MMA cannot be read to mandate reimbursement for prescribed medical marijuana provided to WC claimants. The provider necessarily violates federal criminal law by distributing or dispensing medical marijuana. Where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.
©Bilotti Law Associates 2023
4879-1352-6360, v. 1
Mar 22, 2023
ANTHONY J. BILOTTI & ASSOCIATES, LLC
Teresa L. Fegley, as Exec. of the Est. of Paul Sheetz v. Firestone Tire & Rubber (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023
Issues:
(1) Whether Section 2102 of the MMA applies to WC carriers and overrides the requirements of the WC Act and the Board’s Regulations that mandate insurers pay for/reimburse the cost of medical treatment that is reasonable, necessary, and related to an accepted work injury? (2) Whether the Board erred by concluding that Section 2102 of the MMA precludes reimbursement for medical marijuana to a claimant using medical marijuana to treat an accepted work injury when it has been determined that such treatment is related to the work injury and is reasonable and necessary? (3) Whether reimbursement of Claimant’s medical marijuana treatment would cause the WC carrier to violate federal law?
Background:
Claimant sustained an injury during the course and scope of his employment with Employer. As a result, thereof, Claimant received medical treatment which included two back surgeries. Due to the severe pain in his back and legs, Claimant’s doctor prescribed opiates and narcotics, including OxyContin. Decades later, at the recommendation of his doctor, Claimant began taking medical marijuana in 2019, with the hope of eliminating the need for the opiates and narcotics he had been taking. Medical marijuana afforded Claimant pain relief and reduced his need for the opiates and narcotics. As a result of taking medical marijuana, Claimant weaned himself off Diazepam and OxyContin. In 2019, a UR determination declared that Claimant’s medical marijuana use was reasonable and necessary. Subsequently, Claimant filed a Penalty Petition, alleging that Employer violated the WC Act by failing to pay for his medical marijuana treatment, despite that the UR Determination declared that such treatment was reasonable and necessary. The WCJ denied the Penalty Petition, concluding that Claimant failed to prove that Employer’s refusal to pay for the medical marijuana treatment violated the WC Act. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.
Holding:
The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court also examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within this Commonwealth. Further, the MMA contains an immunity provision protecting patients from government sanctions. Moreover, the Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. As a preliminary matter, the Court held that the Employer did not waive Section 2102 of the MMA as a defense because Employers had raised such matters as a defense below. The Court also noted that, consistent with the rules of statutory interpretation, given that Worker’s Compensation carriers are insurers under the Insurance Law, they must also be held to be insurers for purposes of the MMA, and that the provisions of the MMA apply to W.C. carriers. Further, the plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” While the MMA mandates that nothing in the MMA shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law, “reimbursement” would not cause the W.C. carrier to violate federal law, or be at risk of facing federal prosecution, because, section 841(a) of the Federal Drug Act only provides that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Reimbursing Claimant for his out-of-pocket expenses for his lawful use of medical marijuana as a reasonable and necessary treatment for his work injury would not require Employer’s W.C. carrier to do any of the above prohibited acts. Therefore, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. In support of this holding, the Court also noted that the MMA specifically mandates that no medical marijuana patients shall be denied any rights for lawful use of medical marijuana and that the WC Act provides employees a statutory right to WC medical expenses that are reasonable and necessary to treat a work injury.
Reversed and Remanded.
CONCURRING AND DISSENTING OPINION BY JUDGE FIZZANO CANNON
In a dissenting opinion, Judge Cannon, joined by Judge McCullough, concurred in the majority’s conclusion that Employer did not waive its ability to assert a defense of illegality. However, the dissent asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA, relating to insurers, provides that nothing in the act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. Therefore, the plain language of the MMA does not require reimbursement for medical marijuana prescribed to a claimant to treat a work injury. The MMA does not expressly address “reimbursement” of medical marijuana costs, but rather, provides that the MMA cannot be construed to require an insurer to provide “coverage” of such costs. “Coverage” and “reimbursement” are two sides of the same coin and it makes no sense for Claimant to argue that reimbursement may be required where coverage may not. As for the federal Controlled Substances Act’s provision that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, an insurer reimbursing for medical marijuana costs under state law could be subject to federal prosecution, as either an aider/abettor or an accessory after the fact. The provider distributes and/or dispenses medical marijuana and necessarily violates federal criminal law by doing so. Further, the Court has previously held that, where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.
©Bilotti Law Associates 2023
4893-6921-1992, v. 1
Mar 2, 2023
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
1/27/2023 – 2/28/2023
STATUTORY EMPLOYMENT
Jason Yoder v. McCarthy Constr. et al, v. Air Control Tech & RRR Contractors
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 31, 2023
Issue:
Whether McCarthy Construction, Inc. (“McCarthy”) qualifies as Jason Yoder’s statutory employer under the Workers’ Compensation Act, such that it is immune from suit?
Background:
Appellant, McCarthy Construction, Inc. (“McCarthy”), appealed from a $5,590,650.69 judgment entered in favor of Appellee, Jason Yoder, and against McCarthy. The Norwood Public Library entered into a contract with McCarthy, a carpentry company. McCarthy, in turn, subcontracted with roofing company, RRR Contractors, Inc., for part of the roofing work. Mr. Yoder worked for RRR. Mr. Yoder sustained critical injuries after he fell through an uncovered hole in the roof of the library while working there as a roofer. Mr. Yoder suffered severe and permanent disabling injuries and will require pain management for the rest of his life because of his progressively debilitating injuries. Mr. Yoder filed a complaint against McCarthy contending McCarthy was negligent. McCarthy raised the argument that Mr. Yoder’s claims are barred or limited by the exclusivity provisions of the Pennsylvania Workers’ Compensation Act. The trial court denied McCarthy’s motion for summary judgment. Mr. Yoder sought to preclude McCarthy from raising the statutory-employer defense at trial because McCarthy had purportedly waived the defense by failing to timely plead it. The trial court determined that, although the statutory-employer defense is not waivable, McCarthy failed to meet any of the prongs of the test to establish that it was the statutory employer of Mr. Yoder. The jury returned a unanimous verdict in favor of Mr. Yoder in the amount of $5,000,000, based upon negligence. The trial court also issued an order granting Mr. Yoder delay damages in the amount of $590,650.69. In post-trial submissions the trial court held that McCarthy did not and cannot succeed with the non-waivable statutory employer defense because it fails to meet the fifth prong of the test established in McDonald, as he was an independent contractor for RRR.
Holding:
In exchange for assuming secondary liability for the payment of workers’ compensation benefits, statutory employers under Section 302(b) have immunity in tort for work-related injuries sustained by subcontractor-employees. McCarthy’s failure to timely plead the statutory-employer defense does not result in waiver. Statutory-employer immunity may be raised at any time so long as the proceedings are still open. To establish this statutory- employer relationship the PA Supreme Court has held that the following five elements must be present: (1) An employer who is under contract with an owner or one in the position of an owner; (2) Premises occupied by or under the control of such employer; (3) A subcontract made by such employer; (4) Part of the employer’s regular business entrusted to such subcontractor; (5) An employee of such subcontractor. The Superior Court determined that McCarthy qualifies as Mr. Yoder’s statutory employer under the five-part McDonald test and is therefore entitled to tort immunity. Accordingly, they reversed the judgment entered in favor of Mr. Yoder and remanded for the entry of judgment in favor of McCarthy. An independent contractor can never be a statutory employee. Therefore, the elements of the McDonald test cannot be met where a contractor is an independent contractor. Pennsylvania does not have an established rule to determine whether a particular relationship can be classified as employer-employee or owner-independent contractor but instead promulgates certain guidelines or factors. With respect to the fifth McDonald element, Mr. Yoder was not an independent contractor of subcontractor, RRR, but instead an employee of RRR. Judicial estoppel applies here. Mr. Yoder sought and obtained workers’ compensation benefits from RRR, with his claim resolved in a “Compromise and Release Agreement by Stipulation. As part of the Compromise and Release Agreement, Mr. Yoder formally resigned his employment with RRR. Mr. Yoder’s demand for and receipt of workers’ compensation benefits conclusively established that he was an employee of RRR. Mr. Yoder represented in the Compromise and Release Agreement that he was an employee of RRR, not an independent contractor. He successfully maintained that position, as holding himself out as an employee of RRR enabled him to receive workers’ compensation benefits.” The Court noted that McCarthy meets the other four requirements as well. McCarthy was under contract with the Norwood Borough, the owner of the library where the accident occurred. McCarthy has met the first McDonald element, as it has a contract with the owner. While an employer satisfies the second prong by proving either occupancy or control and it is not required to prove both. McCarthy has established both. The third McDonald element calls for a subcontract made by McCarthy. McCarthy meets this requirement. The fourth McDonald element demands that McCarthy entrusted a part of its regular business to RRR. This element, as a general rule, is satisfied wherever the subcontracted work is an obligation assumed by a principal contractor under his contract with the owner. As such, all elements for a statutory-employer relationship are met.
Reversed.
YELLOW FREIGHT MOTIONS
Mark Davis v. Crothall Healthcare, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 1, 2023
Issue:
Whether the Board erred in affirming the WCJ’s termination of disability benefits when, pursuant to Yellow Freight, Claimant was entitled to a rebuttable presumption that his disability continued, which Employer’s equivocal and incompetent medical evidence failed to refute?
Background:
Claimant worked in Employer’s environmental services department. On December 3, 2019, Claimant filed a claim petition, alleging that he sustained a work injury on October 18, 2018 from cumulative trauma to his lower back and bilateral knees as a direct result of his job duties over the course of 14 years working for Employer, and that he notified Employer of his work injury in a written report dated January 21, 2019. The WCJ conducted a hearing on January 8, 2020, at which Employer neither appeared nor was represented by counsel. The WCJ noted that Employer had also failed to file an answer as of that date. Claimant requested relief pursuant to Yellow Freight. The WCJ issued an interlocutory order (Order) that deemed admitted all factual allegations contained in the claim petition. The Order also granted the claim petition and directed that Employer pay Claimant total disability benefits from October 19, 2018 until the last day Employer’s answer could have been timely filed. In a June 3, 2021 final decision, the WCJ found that Employer provided no adequate excuse for filing an untimely answer to the claim petition. However, the WCJ rejected Claimant’s testimony to the extent it suggested Claimant’s disability extended beyond May 27, 2020. Accordingly, the WCJ granted Claimant’s claim petition but concluded that Claimant failed to demonstrate he continued to suffer from a work-related disability after May 27, 2020, and Employer sustained its burden of proving that Claimant had fully recovered from his work injury as of that date. Both Claimant and Employer appealed to the Board.
Holding:
When an employer fails, without adequate excuse, to file a timely answer to the claim petition, the employer is deemed to have admitted the factual allegations in the claim petition. The employer is thus barred from presenting any affirmative defenses or challenges thereto. However, an employer’s failure to timely file an answer is not the equivalent of a default judgment as the claimant must still present evidence regarding any facts that were not well-plead in the claim petition, and an employer may rebut such evidence. Furthermore, the claimant is only entitled to a presumption of ongoing disability “up to the last day the answer could have been timely filed.” The employer is permitted to offer evidence to rebut this presumption. The WCJ, and the Board, erred in assigning claimant the burden of proof to demonstrate ongoing injuries and disability after May 27, 2020, and in only granting Claimant benefits through the date of Employer’s answer, January 8, 2019. By virtue of Employer’s late answer, and the deemed admissions set forth in the claim petition, Claimant sustained cumulative trauma to his lower back and bilateral knees as a direct result of his job duties in the environmental services department for Employer over the course of 14 years. Having admitted to the truth of these allegations, Employer was barred from presenting any evidence to rebut them. Employer’s expert did not believe that cumulative trauma caused Claimant’s lumbar strain and sprain, and he utterly rejected the notion that Claimant sustained a work injury to his knees and, in fact, denied that Claimant sustained any work injury, despite his earlier acknowledgement that Claimant suffered a lumbar strain and sprain. In refusing to acknowledge the full extent of Claimant’s work injury, Employer’s expert could not provide an opinion regarding Claimant’s recovery from all aspects of his work injury. Consequently, Claimant remained entitled to a rebuttable presumption that his disability continued after December 23, 2019, the last date upon which Employer could have filed a timely answer to the claim petition. Because Employer’s medical evidence was insufficient to support a conclusion that Claimant had fully recovered from his work injury, the WCJ erred in terminating Claimant’s benefits, effective May 27, 2020.
Reversed.
Judge Leavitt issued a dissenting opinion noting that, it is well established that a medical expert need not believe that a work injury occurred in order to opine on a claimant’s recovery. The medical expert’s opinion is competent if he assumes the presence of an injury and finds it to be resolved by the time of the Independent Medical Examination. Employer’s expert opined that Claimant was fully recovered from his work injuries; able to perform his time of injury position without restriction; and was no longer in need of medical treatment of any kind, as of his examination on May 27, 2020.
IMPAIRMENT RATING EVALUATIONS
Ronald Bainbridge v. Commonwealth of Pennsylvania (WCAB) Commonwealth
Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 3, 2023
Issue:
Whether receipt of Act 534 benefits constitutes the receipt of total disability WC benefits under Section 306(a) and (a.3) of the WC Act?
Background:
Claimant suffered a work-related injury relating to a resident assault during his employment at the North Central Secure Treatment Unit facility, for the Employer. Employer acknowledged the injury and noted that Claimant was receiving salary continuation through Act 534 benefits in lieu of WC benefits. In 2020, Employer filed the Modification Petition alleging that Claimant has a whole-person impairment of 16% under the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides), which is less than the 35% threshold under Act 111 after attending an Impairment Rating Evaluation (IRE). A hearing on Employer’s Modification Petition ensued. The WCJ issued a Decision and Order in which she granted Employer’s Modification Petition, and modified Claimant’s benefit status from total disability to partial disability effective the date of the IRE. Claimant appealed the WCJ’s Decision and Order to the Board, arguing that the WCJ erred in granting the Modification Petition because he did not receive total disability WC benefits for the required 104 weeks because he had received Act 534 benefits for that period of time. The Board rejected Claimant’s assertion.
Holding:
The Court had already previously decided this issue, in an earlier case, and held that receipt of Act 534 benefits constitutes the receipt of total disability WC benefits under Section 306(a) and (a.3) of the WC Act, thereby triggering the IRE process under which Employer could seek the modification of his WC benefits.
Affirmed.
Kenneth Elliott v. City of Pittsburgh (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 6, 2023
Issue:
Whether the Claimant’s Protz-IRE reinstatement, from partial disability benefits to total disability benefits, should have been effective as of the original 2012 modification date, or as of the date the Reinstatement Petition was filed?
Background:
Claimant sustained a back injury in the course and scope of his employment with the City of Pittsburgh (Employer). In December 2012, he underwent an impairment rating evaluation (IRE) provided for in former Section 306(a.2) of the Pennsylvania Workers’ Compensation Act (Act), which resulted in an impairment rating of less than 50%.
Employer then filed a modification petition, and in a 2014 decision and order, a WCJ modified Claimant’s disability status from total to partial as of the December 2012 IRE date. In April 2021, Claimant filed a reinstatement petition seeking a return to total disability status based on the Pennsylvania Supreme Court’s decision in Protz. A WCJ granted the petition and reinstated Claimant to total disability status. The WCJ ordered the reinstatement to be effective as of the date of Claimant’s reinstatement petition.
Claimant appealed to the Board, arguing that his reinstatement should have been effective as of the 2012 modification date. The Board affirmed the WCJ’s decision and order.
Holding:
Claimant’s arguments were similar to those raised and rejected numerous times by the Court. The claimant’s arguments were, therefore, rejected. Employer was entitled to credit for partial disability payments to Claimant between the date of the 2012 IRE and the date of Claimant’s reinstatement petition, and the WCJ properly used the filing date of the Reinstatement Petition as the reinstatement date.
Affirmed.
MEDICAL FEE REVIEWS
Philadelphia Surgery Center v. Excalibur Ins. Mgmt. Serv., (Bureau of Workers’ Compensation Fee Review Hearing Office)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: January 27, 2023
Issue:
Whether the Hearing Officer had the statutory authority to impose the remedy of reimbursement for overpayment of medical services?
Background:
Claimant sustained a work injury in the course of her employment with Employer, Luzerne County. Provider performed a spinal cord stimulator implant on Claimant for her work injury and submitted bills to Insurer in the amount of $134,016.13 for nine services. Insurer issued an explanation of reimbursement form pursuant to which it paid Provider $54,231.88 and provided reason codes as to why it calculated the payment due as less than the submitted amount. Provider filed an application for fee review pursuant to Section 306(f.1)(5) of the Workers’ Compensation Act (Act). The Fee Review Section determined that the amount of reimbursement allowed to Provider pursuant to the fee schedule was $14,393.83. However, the Fee Review Section failed to acknowledge Insurer’s prior payment to Provider notwithstanding Insurer’s uploaded response to the Fee Review Section’s Letter of Investigation. The Hearing Officer determined that the record established that the Provider neither supplied proper documentation to the Fee Review Section to support its billing, nor provided notations in its Application for Fee Review consistent with the notations it made in its actual uploaded billing. The Hearing Officer concluded that Insurer proved by a preponderance of the evidence that it properly reimbursed Provider, but that Insurer had made an overpayment in the amount of $39,838.05. Accordingly, the Hearing Officer issued an adjudication affirming as modified the Fee Review Section’s administrative decision and directed Provider to reimburse Insurer in the amount of the found overpayment ($39,838.05), plus statutory interest.
Holding:
The fee review process only permits providers to challenge underpayments or denials of payment. It does not permit insurers to use the fee review process to obtain reimbursement of an overpayment. In the administrative decision at issue, the Fee Review Section did not opine one way or the other on whether the amount it determined to be due had already been paid. Consequently, any overpayment was the result of Insurer’s error at the billing stage, not that of any order of the Fee Review Section. The net result is that an insurer is simply stuck with its own improvidence when it pays too much in the first instance during the billing process. Regulations must be construed in accordance with the statute that authorized them. The fee review process is limited to the amount and/or timeliness of the payment from the employer or insurer. Consequently, the regulations promulgated thereunder must be interpreted with that limitation in mind. In a utilization review case, the remedies under the Act are limited to those created by the General Assembly and courts are precluded from engrafting remedies in the absence of statutory support. While the Fee Review Section and the Hearing Officer properly determined the fact and amount of the overpayment, in the absence of legislative authority permitting the Bureau to direct a provider to reimburse an insurer for an overpayment of fees for medical services, neither the Hearing Officer nor this Court may create such authority in contravention of the Act.
Reversed.
SUFFICIENCY OF THE WCJ’S FINDINGS AND CONCLUSIONS
The Pennsylvania State University v. John Ward (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 22, 2023
Issues:
Whether Claimant was acting in the course of his employment when he monitored his fiancée’s custody exchange, the personal animus doctrine applies and should the Board have remanded to have the WCJ justify the findings that both fact witnesses testified credibly?
Background:
Penn State employed both claimant as a maintenance worker, and his fiancée, who was divorced. Claimant’s fiancée typically met her ex-husband in a Penn State parking lot to exchange custody of their minor child. Claimant was at Penn State when he witnessed his fiancée’s ex-husband kill her and then commit suicide. Claimant filed a claim petition requesting temporary total disability benefits. The parties stipulated that Claimant witnessed the murder/suicide and consequently suffered post-traumatic stress disorder.
Before the WCJ, Claimant testified that he was leaving the dorm and was on his way to the dining hall office to check his mailbox for maintenance requests when he saw his fiancée killed. In contrast, per Employer’s witness, Claimant was not on his way to the office, but was watching the custody exchange from the second floor when the shooting occurred, which prompted Claimant to run downstairs as fast as he could. The WCJ denied the petition because Claimant failed to establish that he was injured during an activity that furthered the interests of Penn State. The WCJ held that Claimant “failed to establish that his monitoring of, and involvement with, the custody exchange giving rise to this claim has been related to his employment, and that this activity advanced Penn State’s interests” and that Claimant failed to establish that his actions fell within the scope of the personal comfort doctrine, and that Penn State successfully invoked the personal animus defense because the ex-husband targeted Claimant. The Board reversed, reasoning that Claimant properly invoked the personal comfort doctrine and that Penn State failed to establish the affirmative defense of personal animus.
Holding:
Under section 422(a) of the Act, the WCJ must issue a “reasoned decision” so that this Court does not have to ‘imagine’ the reasons why a WCJ finds that the conflicting testimony of one witness was more credible than the testimony of another witness. The WCJ had to reconcile conflicting testimony, regarding Employer’s witness’ deposition testimony and Claimant’s in-person testimony. If the WCJ credited the former, then Claimant’s action was unrelated to his employment. But if the WCJ credited the latter, then the WCJ presumably would have held that Claimant was acting in the course of his employment, and not monitoring the custody exchange, when he witnessed his fiancée’s shooting, and the WCJ would have granted the claim petition. Because of the WCJ’s conflicting credibility findings and failure to detail which testimony the WCJ found credible, the Board should have remanded to the WCJ for clarification. Absent the WCJ’s clarification, the Court could not reconcile the WCJ’s credibility determinations with the WCJ’s denial of relief. The Court vacated the Board’s decisions and remanded to the Board with instructions to vacate the WCJ’s decisions and remand to the WCJ to draft a new, reasoned, decision.
Vacated and Remanded.
Nancy Wiggins v. Urban Outfitters, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 22, 2023
Issue:
Whether the Employer’s medical evidence constituted substantial evidence to support the Termination Petition and whether a factual misstatement and a missing finding of fact require a remand?
Background:
Claimant petitioned the Court for review of the Workers’ Compensation Appeal Board’s (Board) Order affirming the WC Judge’s (WCJ) decision that granted in part and denied in part Claimant’s Review Petition and granted Employer’s Termination Petition.
Claimant sustained a left shoulder injury while stacking heavy boxes at work. Employer accepted Claimant’s injury. Claimant filed a Review Petition alleging that she injured other areas while receiving physical therapy for her work-related injury. Employer filed the Termination Petition alleging that, based on the IME, Claimant had fully recovered from her work injury. The WCJ granted Claimant’s Review Petition in part, as well as granting Employer’s Termination Petition. Claimant appealed to the Board and the Board affirmed the WCJ’s decision.
Holding:
For purposes of appellate review, it is irrelevant whether there is evidence to support contrary findings; if substantial evidence supports the WCJ’s necessary findings, those findings will not be disturbed on appeal. As required, the WCJ outlined the evidence considered, stated the credible evidence relied upon, and established the reasons underlying the ultimate decision. Consistent with his authority as the ultimate finder of fact and the sole authority for determining the weight and credibility of evidence, the WCJ evaluated witness credibility and, where it conflicted, credited the testimony that Claimant was fully recovered. Substantial medical evidence supports the WCJ’s decision with respect to Employer’s Termination Petition. Reviewing the record as whole, the WCJ’s incorrect inclusion of a certain record in the list of causally-related medical treatment was undoubtedly a mistake. Therefore, the Court declined to remand for further explanation by the WCJ. Further, despite the fact that there was no Finding of Fact No. 8, the factual findings necessary to support the WCJ’s decision are not missing. The omitted Finding of Fact No. 8 was simply a typographical error, and the Board did not err by affirming the WCJ’s decision without remanding to the WCJ for clarification.
Affirmed.
JUDICIAL DISCRETION
Philadelphia Eagles, Inc. v. Emmanuel Acho (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 3, 2023
Issues:
Whether the evidence relied upon by the WCJ to award benefits for various periods was insufficient arbitrary and capricious? Whether the medical testimony of Claimant’s expert was competent, credible, or unequivocal in establishing a compensable injury after August 23, 2015?
Background:
Claimant is a 28-year-old former linebacker for Employer. He played for Employer in 2013 and 2014 and again was on Employer’s roster in 2015. On August 11, 2015, while practicing, Claimant injured his thumb. On August 23, 2022, Claimant fractured the same thumb during practice. Claimant could not participate in any physical activity for approximately three weeks after the surgery. Claimant was released from Employer’s roster immediately after his surgery. Pursuant to an injury settlement agreement executed according to the applicable collective bargaining agreement, Claimant received three weeks of pay. After physical rehabilitation, Claimant was cleared to play football. Claimant re-signed with Employer on November 9 or 10, 2015. Claimant’s thumb remained symptomatic, however, and he did not play in any games in 2015. He was released by Employer approximately 16 days after being re-signed. Claimant thereafter attempted to try out for other teams but found that he could not play at his pre-injury level. He was not offered any positions on any other team and has not played professional football again. Claimant believes that his thumb injury made him physically unable to play football at a high level, which is why he was never signed by any team after Employer released him in 2015. He did not receive any specific treatment for his injury until 2018, when he saw a physician’s assistant at a federal workers’ compensation facility. He nevertheless had not received any formal medical treatment for his thumb from 2015, until 2019, when he came under the care of his medical expert. On August 20, 2018, Claimant filed a Claim Petition related to his August 23, 2015 injury. He also filed a Petition to Reinstate and Review Benefits related to the August 11, 2015 injury.
Employer in turn filed Petitions to Terminate benefits with regard to both injuries. The WCJ credited Claimant’s and his medical expert’s testimony to the extent that he found that Claimant’s thumb injury rendered him unable to perform his pre-injury linebacker job until he was found by employer’s medical expert to be fully recovered as of September 12, 2019, based upon an IME. The WCJ further credited claimant’s expert’s testimony that Claimant’s injury would interfere with Claimant’s ability to perform his linebacker job to a degree that would make it difficult to play at the level required in the NFL. The WCJ accordingly granted Claimant partial disability benefits until September 12, 2019, and granted Employer a three-week credit for the injury settlement reached in 2015. The WCJ granted Employer’s termination petition as of September 12, 2019.
Holding:
Substantial evidence supports an award of total disability benefits for the period between August 23, 2015, and November 10, 2015. Further, the WCJ’s award of benefits from November 10, 2015 through September 12, 2019 was not based on an arbitrary and capricious finding that Claimant’s injury was compensable during that period. There is substantial evidence in the record that Claimant was released from Employer’s roster in August 2015 because of his injury. Claimant testified that he experienced ongoing pain, tenderness, and related limitations in his ability to play. Although he tried out with other teams, none hired him. When he was re-signed with Employer on November 9 or 10, 2015, he practiced with a brace and wrapping on his right hand, and his participation was limited to special teams and scouting. He again was released by Employer 16 days later and did not secure employment with any other NFL teams. It was not necessary to assume that other teams were disinterested in Claimant due to his injury. The evidence of his success and ranking as a professional linebacker and/or special teams player was not meaningfully controverted by Employer, and the WCJ was free to find that Claimant played at a high, exceptional level prior to August 23, 2015. Any detraction from that level of play due to injury could and apparently did tarnish and ultimately eliminate Claimant’s prospects to play as a high-performance linebacker in the NFL. Claimant’s medical testimony noted that the condition of Claimant’s thumb since the injury was consistent with his complaints of pain and tenderness, which would cause limitations in his ability to engage in physical activity. Finally, Claimant’s expert’s testimony was not incompetent, noncredible, or equivocal. He testified that he reviewed Claimant’s medical records, including the records from Dr. Culp and the MRI images and based on those records and his own evaluation of Claimant, he identified the displacement and post- traumatic arthritis in Claimant’s thumb, both of which he attributed to the August 23, 2015 injury. He further opined that those conditions would interfere with Claimant’s ability to tackle and perform at the professional level. Also, Claimant’s expert’s opinions were not equivocal as they were not based only upon possibilities, vague, or left any doubt. His testimony was consistent with all of Claimant’s medical records and Claimant’s testimony. He unequivocally supports the award of benefits in this matter.
The WCJ’s decision is free of errors and supported by substantial evidence and did not arbitrarily or capriciously disregard any competent evidence.
Affirmed.
Diana Snyder v. Co. of Allegheny and UPMC Benefit Mgmt. Serv. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: February 3, 2023
Issue:
Whether the WCAB erred in affirming the WCJ’s denial of the claimant’s claim petition?
Background:
Claimant filed a Claim Petition asserting that on March 4, 2020, she sustained a disabling work-related injury when reaching overhead into a patient’s closet to obtain a piece of clothing for the patient. Employer issued a Notice of Compensation Denial on March 11, 2020, asserting that Claimant had not sustained a work-related injury, and this litigation ensued. The WCJ credited Claimant’s testimony of the incident and her symptoms. However, the WCJ rejected as non-credible claimant’s expert’s testimony that the incident caused Claimant’s symptoms and ultimate need for two surgeries. The WCJ specifically pointed to her expert’s opinion that Claimant’s condition was caused by a twisting motion of her neck during the incident even though Claimant testified expressly that she had not twisted her neck. By contrast, the WCJ credited employer’s expert’s testimony as supported by and consistent with the medical records and Claimant’s testimony. The WCJ therefore concluded that Claimant had failed to establish a causal relation between the work incident and her injury and disability and denied her claim petition. The Board affirmed.
Holding:
A claimant has the burden of proving all necessary elements to support an award in a claim petition proceeding. The WCJ has exclusive province over questions of credibility and a reviewing court is not to reweigh the evidence or review the credibility of witnesses. If a medical expert’s opinion depends on false or incorrect information or an assumption contrary to the facts and evidence, such as a mistaken understanding of the work incident, it can be deemed incompetent. However, if the medical expert’s opinion is based on an incomplete (rather than false or inaccurate) grasp of the facts, the defect will go to the WCJ’s evaluation of the weight of the expert’s testimony, which may not be disturbed on appeal. The WCJ found that claimant’s expert’s testimony was undermined by a fatally incomplete understanding of the mechanism of injury in this case. The WCJ found this expert’s subsequent opinion was also inconsistent with Claimant’s credible and specific testimony. The WCJ therefore rejected as non-credible the opinion that Claimant’s injury was caused by the incident. The WCJ therefore concluded that Claimant had not established a causal relationship between the incident as she described it and her subsequent disability. This is properly characterized as a lack of competence in the testimony. If a physician bases his opinion of causation in part on the temporal proximity of an event, his opinion will be deemed competent if he provides other factors to support his position. Here, however, the only other aspect of Claimant’s expert’s causation testimony was his misunderstanding of the incident and mechanism of injury. Therefore, his causation opinion could not be rehabilitated. The WCJ was within his discretion to give this testimony little or even no weight and credibility.
Affirmed.
SUBROGATION – THE RIGHT TO INTERVENE
Michele Loftus and Richard Loftus, Her Husband v. Katrina Decker
Superior Court of Pennsylvania – Published Opinion
Decided: February 1, 2023
Issue:
Whether the trial court abused its discretion and committed an error of law when it denied Appellant’s petition to intervene without a hearing?
Background:
Appellant Eastern Alliance Insurance Group appeals from the order denying its petition to intervene in an action initiated by Michelle and Richard Loftus (collectively, the Loftuses) in a praecipe for writ of summons against Katrina Decker (Decker). On September 25, 2020, the Loftuses filed a praecipe for writ of summons naming Decker as the defendant. On February 25, 2021, Appellant filed a petition to intervene. In its petition, Appellant asserted that Michelle Loftus (Loftus) was employed as a bus driver for Appellant’s insured, and that Loftus had sustained injuries in a work-related auto accident caused by Decker. Loftus previously sought and received workers’ compensation benefits from Appellant, which it claimed has a statutory lien against any damages Loftus may recover from Decker. It is undisputed that the Loftuses have not filed a complaint. Appellant asserts that intervention is necessary to protect its workers’ compensation lien because the Loftuses refuse to accept Decker’s insurance carrier’s offer to settle the case, and are prepared to abandon litigation and not seek recovery against Decker, unless Appellant agrees to compromise its statutory lien rights. Appellant contends that it is necessary for it to intervene to prosecute this matter and protect its statutory lien rights, which are not adequately represented by the Loftuses or Decker.The trial court denied Appellant’s petition to intervene. Appellant filed the instant appeal.
Holding:
Appellant did not yet have a legal interest or important right to protect. Therefore, Appellant’s petition to intervene does not meet the second prong of the test for an appealable collateral order. With respect to Appellant’s claim concerning its subrogation rights, Section 319 of the Workers’ Compensation Act, does not bestow upon any party, directly or indirectly, the right to take any action against a third-party tortfeasor. Instead, the PA Supreme Court has held that Section 319 provides that only the employee can pursue damages from the tortfeasor, and the insurer has no right to seek a recovery or compel an employee to seek recovery to satisfy a statutory lien under the Workers’ Compensation Act. Under Section 319, an insurance carrier has no independent cause of action for indemnification/contribution from the negligent party who caused the insurance carrier to pay the injured employee benefits. The right of recovery flows exclusively through the employee’s decision alone, that a claim must be brought with the employee’s participation, and that there is no authority, statutory or otherwise, permitting an insurer to pursue employee’s cause of action against a tortfeasor without the employee’s voluntary participation as a party plaintiff or the contractual assignment of her claim. Appellant cannot intervene and file a complaint under the guise that it is not independently seeking to recover its lien. Further, it only seeks to intervene in the action commenced by the Loftuses’ praecipe for writ of summons. There is no complaint, there are no specific claims, facts, or prayers for relief. To the extent Appellant attempts to define and maintain a tort action on behalf of the Loftuses in an effort to protect its own rights, it is precluded from doing so. Appellant does not have a legally enforceable interest to file suit on its own behalf or to compel the Loftuses to file a complaint against Decker to protect Appellant’s subrogation lien. Accordingly, Appellant has no legally enforceable interest and no right that needs to be protected. The order underlying this appeal was not an appealable collateral order.
Appeal Quashed.
DISSENTING OPINION
Judge Murray filed a dissent arguing that the facts alleged in Appellant’s petition meet the requirements for a collateral appeal under Pennsylvania Rule of Appellate Procedure 313.
EXCLUSIVITY – LATENT OCCUPATIONAL DISEASES
Brad Lee Herold, as Exec. Of the Est. of William L. Herold v. University Of Pittsburgh, et al.
Commonwealth Court of Pennsylvania – Published Opinion
Decided: February 16, 2023
Issue:
Whether the common law claims of William L. Herold (decedent), which relate to his workplace exposure to asbestos and development of mesothelioma, fall within the purview of The Pennsylvania Occupational Disease Act (ODA), thus requiring that he file his claims with the Workers’ Compensation Board (Board)?
Background:
Decedent was employed by the University from 1976 until he retired in 2015, as a stationary engineer. During his employment, Decedent was exposed to asbestos until 2004. In April 2019, approximately 15 years after his last exposure to asbestos, he was diagnosed with mesothelioma, a cancer in the lining of the lung. Expert evidence attributed the cause of Decedent’s mesothelioma to his asbestos exposures. In October 2019, Decedent commenced this action in the trial court to recover damages arising from his development of mesothelioma. The University sought summary judgment based on Section 303 of the ODA, 77 P.S. §1403. Section 303 is an “exclusivity provision,” which purports to limit compensation for an occupational disease as provided under the ODA, which is administered solely by the Board. The trial court denied the University summary judgment, reasoning: (1) the ODA defines an occupational disease as one that occurs within 4 years of last exposure to the hazards of such disease; (2) Herold’s last exposure to asbestos occurred 15 years prior to his diagnosis, far longer than the 4-year limitations period defined in the ODA; and (3) an ODA “savings clause,” which provides additional relief beyond the 4-year period for certain enumerated diseases, was inapplicable. Thus, the trial court concluded, “the ODA does not apply,” and Herold could pursue a civil claim.
Holding:
The WCA and ODA together provide a comprehensive, no-fault system of compensation for employees injured in the course of their employment. However, under either statutory regime, these limitations periods operate as a de facto exclusion of coverage for certain occupational diseases that are prone to latency. Therefore, Herold’s civil claims were not subject to the ODA exclusivity provision. Absent compensable disability or death as defined by the ODA, an injured employee has not surrendered the rights to pursue compensation in a manner of their choosing. The exclusivity provision does not apply to Herold’s claims, and the Board lacks exclusive jurisdiction to adjudicate these claims. The legislature did not intend for employees suffering from an occupational disease that manifests outside the ODA’s 4-year limitations period to surrender their rights as indicated in the ODA’s exclusivity provision. Further, the Doctrine of Primary Jurisdiction is Inapplicable. Herold is not required to present his claims to the Board in the first instance. Where the matter is not one peculiarly within the agency’s area of expertise but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility. Thus, the Court recognized an exception to the exclusive jurisdiction of the Board to adjudicate claims asserted by an employee diagnosed with an occupational disease more than 4 years after the employee’s last workplace exposure to the hazards of that disease. Also, because the issues relevant to the latency of an employee’s occupational disease are not peculiarly within the Board’s expertise, the employee was permitted to commence civil proceedings in an appropriate court of original jurisdiction.
Affirmed. Case remanded to the trial court.
PETITION FOR ALLOWANCE OF APPEAL FROM THE ORDER OF THE COMMONWEALTH COURT
Vincent Sicilia v. API Roofers Advantage Program (WCAB)
Supreme Court of Pennsylvania – Order GRANTING Allowance of Appeal.
Decided: February 15, 2023
The PA Supreme Court granted the Petition for Allowance of Appeal of Employer, API Roofers Advantage Program.
Issues to be decided:
(1) Did the Commonwealth Court impermissibly expand the holdings in Duffey v. WCAB (Trola-Dyne, Inc.), so as to usurp the authority of the Workers’ Compensation Judge to determine the nature and extent of the compensable injury?
(2) Did the Commonwealth Court err in reversing the Workers’ Compensation Appeal Board by substituting its assessment of the credible testimony for that of the fact finder?
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
01/31/2023 – 02/28/2023
SUBSTANTIAL CONTRIBUTING FACTOR STANDARD
Lois Simpson v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division
No. A-3728-20; 2023 WL 1489674
Decided: 02/03/2023
Background:
On September 27, 2017, Simpson applied for ADR benefits, asserting that on December 1, 2015 she tripped over a student’s foot and injured her back at work. She had since had three surgeries and lived in “constant pain.” In July 2018, the Board denied the application for accidental disability, but granted her ordinary disability benefits. The Board determined that her disability was the result of a pre-existing condition or a pre- existing condition that was aggravated or accelerated by the work incident. Simpson challenged, and an ALJ had hearings in November 2020.
Simpson testified at the hearings, and acknowledged that prior to the 2015 injury, she experienced back pain when she fell at work in 2012 but returned to her job and was able to do it with no problems. Dr. Arthur Becan, an orthopedic surgeon, testified on her behalf. He opined that her disability was the direct result of her 2015 injury and subsequent complications from surgery. He explained that Simpson was diagnosed with a lumbar sprain and radiculopathy after her fall and developed a herniated disc. Dr. Becan referred to a 2016 MRI showing a herniated disc, and a 2013 MRI showed mild to moderate spinal stenosis but no disc injury.
Dr. Hutter testified for the Board. He opined that Simpson was totally and permanently disabled from her job as a result of a progression of degenerative changes and the 2015 injury was not the primary cause of her disability. His March and May 2018 reports indicated that a note from Dr. Shamash stated that the 2016 MRI demonstrated a disc herniation at L5-S1 with some pressure on the S1 nerve root and stenosis at L4-5. The ALJ filed an initial decision concluding that Simpson had met her burden in demonstrating that she was eligible for accidental disability benefits and that her disability was substantially caused by the 2015 accident and rejected the Board’s denial of ADR benefits.
The Board rejected the ALJ’s decision and concluded that the objective medical evidence established that her stenosis was the significant or substantial contributing cause of Simpson’s disability, not the 2015 incident. The Board also rejected the view that her stenosis was asymptomatic before 2015, pointing to the treatment she received following the 2012 injury. The Board asserted that when a person’s underlying condition is aggravated by a traumatic event, that person is only eligible for ordinary retirement benefits. The Board rejected the ALJ’s initial decision and denied her ADR benefits. This appeal followed.
Holding:
The Superior Court acknowledged that its ADR jurisprudence needed a course correction because its prior rulings led to a series of inconsistent decisions regarding the traumatic event standard. The Court organized its prior decisions into two strands. The first strand reaffirmed that a traumatic event can occur during usual work effort, but combined with pre-existing disease cannot be the traumatic event. The second strand narrowed what qualifies as a traumatic event to only the cases involving an extreme amount of force or violence. The Court concluded that the first strand represented the correct interpretation of legislative intent.
The Board’s finding that Simpson’s stenosis was symptomatic before her 2015 injury was essential to its determination that the Petrucelli case did not apply, and her disability was not the “direct result” of her 2015 fall. This court concluded that that finding is not supported by the record. This court held that the Board’s findings in this regard were contradicted by the record, and that in light of Dr. Hutter’s testimony that Simpson may never have needed surgery absent the fall, the Board’s decision to deny her ADR benefits “lacks fair support in the record.”
The court reversed the Board’s decision denying Simpson ADR benefits because, the “direct result” test was legally satisfied by Simpson. The court held that the Board’s finding that Simpson’s stenosis was symptomatic before her fall in 2015 is not supported by the record and the Board erroneously rejected Dr. Becan’s testimony based on the incorrect assumption that he relied only on the subjective complaints of Simpson.
Reversed.
John Caldwell v. Board of Trustees, Public employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-3353-20; 2023 WL 2147296
Decided: 02/22/2023
Background:
Petitioner was a corrections officer at Bayside State Prison. In November 2016, petitioner slipped and hit his knee on a steel bench at work. He went to the infirmary and returned to work, he later had an MRI, then two months later had an arthroscopy, after which he returned to work with no restrictions, then in July 2018, had a partial knee replacement.
Petitioner applied for Accidental Disability Pension in October 2018. The Board found petitioner’s disability was an aggravation of a pre-existing condition and denied the application. Petitioner appealed and the matter was heard by an ALJ in August 2020. Dr. David Weiss testified for the petitioner, and Dr. Andrew Hutter testified for the Board.
The ALJ determined that petitioner’s permanent and total disability was caused by pre- existing osteoarthritis present in his left knee at the time of his injury. The ALJ also concluded that the November 2016 fall resulted in the aggravation of a pre-existing condition. The ALJ finally concluded that petitioner failed to sustain his burden of proof showing he was entitled to accidental disability benefits. The Board adopted the ALJ’s findings and concluded that petitioner was not entitled to accidental disability benefits, only ordinary disability benefits. In his appeal, petitioner argues that the Board erred by admitting the expert testimony of Dr. Hutter because it was a net opinion, and disregarding is testimony, he sustained the burden of proof.
Holding:
With regard to the “net opinion” argument, cases have held that expert opinion may be based on the expert’s personal observations, or evidence admitted at the trial, or data relied on by the expert which is the type of data normally relied on by experts in forming opinions on the same subject. The court held that the Board adopted the findings of the ALJ, who found Dr. Hutter was an expert in orthopedic surgery, personally examined the petitioner, reviewed petitioner’s medical records, including the MRI. Therefore, there is ample evidence in the record to conclude that Dr. Hutter’s testimony was supported by facts obtained from his personal observations, evidence admitted at trial, and data normally relied upon by experts.
Petitioner also argued that the 2016 fall caused his non-symptomatic pre-existing condition to morph into a total disability. This court stated that the crux of the inquiry is whether, during the regular performance of his job, an unexpected happening, which was not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the petitioner’s permanent and total disability. The court held that the petitioner in this matter had significant pre-existing osteoarthritis in his knee at the time of the fall, and both experts agreed that this occurred over time and was not a result of the accident.
This court held that the injury was not the substantial contributing cause of his disability, and instead it was a combination of the significant degeneration that was already present in the knee, plus the injury. Therefore, the court held that petitioner failed to meet his burden proving that the Board’s final decision was unreasonable, as their conclusions are supported by sufficient and credible evidence.
Affirmed.
ALLOCATION OF FAULT
Liberty Insurance Corp. and LM Insurance Group v. Techdan, LLC, Exterior Erecting Services, Inc., Daniel Fisher, Robert Dunlap, and Carol Junz
Supreme Court of New Jersey
A-52 September Term 2021; 2023 WL 1999560
Decided: 02/15/2023
Background:
Techdan and Exterior were New Jersey entities who engaged in the construction of exterior walls. Dunlap and Fisher were LLC members of Techdan, and Dunlap was an officer and sole shareholder of Exterior. Fisher held himself out as part owner of Exterior, and Junz controlled both entities and was responsible for securing workers’ compensation insurance on their behalf. Liberty issued workers’ compensation policies to Techdan between March 12, 2004 AND March 12, 2007 and alleges that defendants misrepresented the relationship between Techdan and Exterior, as well as the ownership structure of the two entities, and provided Liberty’s auditors with fraudulent payroll records to reduce the premiums charged by Liberty.
Liberty filed this action, asserting fraud against all defendants under the IFPA, as well as workers’ compensation fraud and common-law fraud, breach of contract against Techdan and Exterior, and aiding and abetting and civil conspiracy against Dunlap, Fisher, and Junz. Liberty asked for compensatory damages, treble damages pursuant to the IFPA, attorney’s fees and costs, and punitive damages. After discovery, Liberty moved for summary judgment. Partial summary judgment was granted as to the IFPA claim for insurance fraud against Techdan, Exterior, Dunlap, and Fisher. Partial summary judgment was also granted as to the workers’ compensation fraud claim against all defendants, as well as to the breach of contract claim against Techdan and Exterior.
The jury found Liberty proved insurance fraud under the IFPA against Exterior and Junz; that Techdan, Exterior, Dunlap, and Junz (but not Fisher) had engaged in a pattern of insurance fraud under N.J.S.A 17:33A-7(b); that Liberty had proven its workers’ compensation fraud claim against Exterior, Dunlap, and Junz; Liberty had proven common-law fraud against all defendants; its claim for aiding and abetting against Dunlap, Fisher, and Junz; its claim for civil conspiracy against Dunlap and Junz; and its claim that Dunlap should be found personally liable.
In motions for reconsideration and a new trial, defendants asserted that the trial court should have charged the jury to allocate fault under the CNA and should have given an “ultimate outcome” charge explaining the consequences of findings that defendants committed fraud under the IFPA. The trial court held that it was not required to give these charges, as there was no evidence Liberty was at fault and defendants did not file crossclaims for contribution or indemnification, and denied the motion for reconsideration and a new trial.
Defendants appealed. The Appellate Division held that the trial court erred when it imposed joint and several liability on defendants rather than directing the jury to allocate percentages of fault in accordance with the CNA. The Appellate Division also held that the trial court should have given the jury an ultimate outcome charge, and although defendants did not raise the CNA or ultimate outcome issues until their motion for reconsideration, the trial court’s cumulative errors gave rise to a miscarriage of justice and remanded the matter for a new trial. Defendants filed petitions for certification, and Liberty filed a cross-petition for certification. Defendants’ petitions were denied, but Liberty’s cross-petition was granted.
Liberty argued that the Appellate Division improperly held that all claims in this matter were subject to the CNA. Liberty further asserts that there was no reason for the trial court to direct the jury to allocate fault under the CNA because defendants did not seek crossclaims or an allocation of a percentage of fault against each other. Defendants contend that the Appellate Division’s judgment should be affirmed, and the appellate court properly found that the CNA directs all claims asserted in this matter.
Holding:
The court explained that the CNA codifies the principle of comparative negligence, and provides the framework for allocation of fault when multiple parties are alleged to have contributed to a plaintiff’s harm. The court held that defendants do not need to file crossclaims against each other for the court to allocate fault, and plain language supports that the Legislature’s intent was that in actions covered by the statute, the factfinder’s allocation of fault and the court’s molding of the verdict are mandatory. The court discusses the history of the CNA, its amendment in 1995, and the applicable case law, and concluded that the CNA governs a broad range of civil causes of action, including statutory and common-law claims based on intentional conduct as well as negligence.
The court then turns to an analysis and brief explanation of the IFPA, and concludes that a successful claimant in a civil action under the IFPA “shall recover treble damages” if the court determines that there was a pattern of violating the statute by the defendants.
Finally, the court focused on what they considered the main question raised on appeal, which is whether Liberty’s IFPA and WCA workers’ compensation fraud claims are subject to the CNA’s apportionment procedure. The court held that the IFPA claim in this matter is a statutory fraud claim premised on intentional conduct, which falls under the Legislature’s broad definition of “negligence actions.” This court also held that Liberty’s claim for workers’ compensation fraud falls under the category of intentional torts that case law has held is encompassed by the CNA. The court stated that nothing in the IFPA or WCA’s fraud provision implies that the Legislature intended to exempt statutory fraud claims from the CNA or modify the statute’s allocation-of-fault procedure in such cases. This court therefore agrees with the Appellate Division that the trial court erred when it imposed joint and several liability on defendants instead of instructing the jury based on N.J.S.A. 2A:15-5.2(a) and molding the judgment based on the jury’s findings.
This court also held that based on case law, they disagree with the Appellate Division’s view that the trial court committed reversible error when it declined to give the jury an “ultimate outcome” charge, and it was within the discretion of the trial court to give the ultimate outcome charge or decline to do so. Therefore, the trial court’s decision to not give the ultimate outcome charge was not plain error.
This court agreed with the Appellate Division that this matter should be remanded for a new trial, however, disagrees with the scope of the new trial. This court believes the appropriate remedy to be a retrial where the trial court will instruct the jury to allocate a percentage of fault under N.J.S.A. 2A:15-5.2(a)(2) and there is no need to revisit the determination made regarding liability and the finding of a pattern of insurance fraud, as the jury found the elements of the claims to be established under the burden of proof.
This court also stated that the trial court should not instruct the jury on remand to redetermine the total amount of compensatory damages and should not disclose the total amount of compensatory damages awarded by the first jury, and the new jury will not be bound by or informed of the first jury’s decision not to impose compensatory damages on Dunlap, Fisher, and Junz. Finally, this court stated that on remand, the trial court should instruct the jury to determine for each defendant the percentage of the total fault allocated to that defendant, with the total fault adding up to 100%, and the court should then mold the judgment based on the jury’s findings, trebling any part of the compensatory damage award that the jury allocates to Techdan, Exterior, Dunlap, and Junz who engaged in a pattern of insurance fraud under the IFPA. The trial court should also address Liberty’s claim for an award of counsel fees and costs.
Affirmed in part, Reversed in part.
Feb 1, 2023
PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
12/22/2022 – 1/25/2023
IMPAIRMENT RATING EVALUATION
Leo DeLuca v. Cservak Management Services, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 22, 2022
Issue:
Whether the Board erred in affirming the modification of disability status because Act 111 is unconstitutional?
Background:
In 2010 Claimant sustained work-related injuries while working for Employer. Employer accepted liability for payment of total disability benefits as of January 2015. On November 7, 2019, a physician conducted an impairment rating evaluation (IRE) of Claimant pursuant to the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Second Printing (Guides), which yielded a whole-body impairment rating of 28%. Employer filed a modification petition, seeking to change Claimant’s disability status from total to partial on the basis of the November 2019 IRE. The WCJ granted the requested modification, declaring Claimant’s change in disability status from total to partial effective as of the date of the IRE. The Board affirmed.
Holding:
Act 111 remediated the delegation of legislative authority deemed unconstitutional by the Protz II Court. It is not delegating its authority to legislate. The General Assembly made a policy decision regarding the standards that will apply to IREs in the Commonwealth going forward. For the reasons already repeatedly articulated by the Court, in a multitude of prior cases, Claimant’s constitutional challenge is meritless. Claimant has no vested right to benefits as calculated at the time of injury as there are reasonable expectations under the WC Act that benefits may change. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial.
Further, Act 111 is clear that weeks of temporary total disability paid by an employer/insurer prior to the enactment of Act 111 count as credit against an employer’s new obligations under Act 111.
Affirmed.
Susan Motzer v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 29, 2022
Issue:
Whether the retroactive application of Act 111 is unconstitutional?
Background:
Claimant suffered a work-related injury to her knee. In 2020, Employer filed a modification petition alleging that Claimant’s benefit status must be modified to partial based upon an IRE which determined a whole-body impairment rating of 8%. Claimant did not present any testimony and stated that she would only be challenging the constitutionality of Act 111. The WCJ held that Employer established that Claimant had reached MMI and had a whole-body impairment of 8%. Therefore, the WCJ granted Employer’s petition, modifying Claimant’s benefits to partial disability status effective October 20, 2020. Claimant appealed to the Board, which affirmed.
Holding:
The court rejected Claimant’s arguments, based on its reasoning in previous cases. Employer sought to modify Claimant’s benefits based on an IRE obtained after the effective date of Act 111. The Employer was entitled to do so.
Affirmed.
Joseph Carnevale v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 29, 2022
Issue:
Whether Employer’s IRE modification petition was barred by res judicata?
Background:
In 2011, a physician performed an IRE on Claimant, applying the most recent edition of the AMA Guides under the former Section 306(a.2) of the Act. His disability status was modified from “total” to “partial,” effective the IRE date. In 2017, Claimant sought reinstatement of total disability (TTD) benefits based on the unconstitutional IRE process that had served as a basis to modify his disability status. In 2020, the WCJ granted a Reinstatement. After Act 111, a new IRE was performed on Claimant. This new IRE was conducted using the Sixth Edition of the AMA Guides under the new guidelines promulgated by Section 306(a.3), and the results yielded an 18% whole person impairment rating. Employer filed a petition to modify Claimant’s benefits from TTD to partial disability (TPD) benefits. The WCJ granted Employer’s petition and modified Claimant’s benefits as of the new IRE date, February 4, 2020. The Board affirmed.
Holding:
After 104 weeks of TTD benefits, an employer may request that a claimant submit to an IRE. Here, Claimant’s receipt of TTD benefits surpassed 104 weeks. Thereafter, Employer requested a new IRE, which revealed that Claimant maintained an 18% total body impairment rating. Thus, there was no error in the WCJ’s decision to grant Employer’s modification petition to modify benefits, based on uncontroverted evidence of an impairment rating below the statutory threshold. The instant matter is not barred by res judicata. In the Reinstatement Adjudication, the WCJ resolved the constitutional infirmity of Claimant’s changed disability status based on the former IRE process. The “sole issue” was whether the WCJ applied the correct date for reinstatement of benefits. There was no contest as to whether Claimant was eligible for said benefits. The present case assessed Claimant’s present disability status and whether Employer satisfied its burden of proving modification was appropriate. The causes of action involve different burdens of proof, facts, and issues.
Affirmed.
Julius J. Cobbs, III v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decision: January 9, 2023
Issue:
Whether Act 111, relating to IREs, is unconstitutional?
Background:
In 2013 Claimant was injured in the course and scope of his employment for Employer’s Water Department. In 2018 Employer acknowledged Claimant’s entitlement to wage loss and medical benefits. In the interim, on June 20, 2017, the Pennsylvania Supreme Court issued its decision in Protz II, holding that the impairment rating evaluation (IRE) provisions contained in Section 306(a.2) of the WC Act was unconstitutional. The Pennsylvania legislature subsequently enacted Act 111, which became effective October 24, 2018. In 2020, after Claimant received 104 weeks of WC disability benefits, at Employer’s request pursuant to Section 306(a.3) of the Act, Claimant underwent an IRE which, based upon the 6th Edition AMA Guides, determined that Claimant had reached maximum medical improvement relative to his accepted work injury, and his whole person impairment was 3%. After reviewing additional records, the IRE reviewer concluded that Claimant had reached maximum medical improvement relative to his expanded work injury, and his whole person impairment rating was 17%. Employer filed the Modification Petition. The WCJ granted the Modification Petition, changing Claimant’s disability status from total to partial as of the IRE date. The Board affirmed.
Holding:
The WCJ did not err in determining that Act 111 can be applied to injuries that occurred before its October 24, 2018 effective date. The provisions of the Act allow for retroactive effect. Further, Act 111 is not an unconstitutional delegation of legislative authority. The flaw in former Section 306(a.2) of the Act was that, unlike the replacement provision of Act 111, it did not simply adopt a set of existing standards; rather, by mandating use of the most recent version of the AMA Guides, it allowed the AMA to alter the standards at will without any legislative oversight. Act 111 corrected this.
Affirmed.
CLAIM PETITION – BURDEN OF PROOF
Express Employment Professionals/Express Services, Inc. v. Isaiah Caldero (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 20, 2023
Issue:
Whether Claimant’s evidence established an ongoing disability from the time of injury to the present?
Background:
Employer was a temporary employment agency. In early July 2017, Employer placed Claimant in a laborer position at a Millwork. Four days into the job, on July 6, 2017, Claimant was injured at work. He was subsequently placed on restrictive work duties. Employer issued a Notice of Temporary Compensation Payable, describing the injury as an upper back area strain or tear. In October 2017, Claimant was released to full-duty work. Claimant did not feel capable of returning to work. Claimant filed a Claim Petition, asserting he sustained work-related injuries to his upper back that prevented him from returning to work. The WCJ found claimant and his medical expert credible and granted the Claim Petition, awarding medical and ongoing indemnity benefits to Claimant. The Board affirmed the decision and order of the WCJ.
Holding:
The WCJ relied upon substantial evidence and the Board properly affirmed the WCJ’s order. In a claim petition, the claimant must establish he sustained a work-related injury but also that such injury resulted in a disability. The claimant also must establish the length of the work-related disability. Claimant met his burden of proving an ongoing disability through his and his expert’s credited testimony. A physician’s lack of personal knowledge of a claimant’s condition before the physician treated the claimant is not fatal to a medical opinion. A medical expert is permitted to base an opinion on the medical reports of other physicians, which experts customarily rely upon in the practice of their profession. Thus, the physician’s testimony was competent and could support a finding of disability before the physician’s first examination. Even though no work restrictions appear in the medical records between October 24, 2017 and October 7, 2019, those records nonetheless indicate Claimant continued to experience chronic pain from his injuries. Claimant testified he experienced pain in his upper back throughout this period for which he sought treatment beginning in January 2018. Claimant’s medical expert’s opinion of when Claimant became disabled by the work injuries was based not only on his review of the medical records but also on his understanding of traumatic back injuries typically being worse at the beginning and improving over time. The medical expert deduced that if Claimant was unable to perform his preinjury position on October 7, 2019, he was unable to perform those duties before then as well.
Affirmed.
REINSTATEMENT PETITION – BURDEN OF PROOF
Oak HRC Suburban Woods LLC v. Carmella Burroughs (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 23, 2023
Issue:
Whether the WCJ erred in granting Claimant’s Reinstatement Petition because she failed to prove that her loss of earning power was related to her work injury?
Background:
Claimant sustained a work-related injury while employed as a Licensed Practical Nurse (LPN) by Employer. She performed modified, lighter duty for Employer before leaving employment in 2017. In 2018 Claimant returned to work with a different employer, Blue Bell Place (Blue Bell), performing light/modified office duties. In this position, her hours increased. A few months later, Claimant, who had surgery scheduled for a non-work- related condition, was terminated from Blue Bell because she had not accrued enough FMLA leave for recovery time. Following her termination from Blue Bell, Employer did not offer Claimant similar employment. In 2019, her treating physician determined that her work injuries had worsened to the point that she was totally disabled and could not work. Claimant filed for reinstatement and penalties. The WCJ granted Claimant’s Reinstatement Petition, denied Employer’s Termination Petition, and directed Employer to pay Claimant total disability benefits. The WCJ also granted Claimant’s Penalty Petitions and further awarded Claimant attorney’s fees at 50% of the total quantum meruit filings by Claimant’s counsel. The Board affirmed.
Holding:
Where a claimant seeking reinstatement of benefits has already established a work- related injury supporting an award of benefits, then causation will be presumed if the claimant can demonstrate that through no fault of his own, his earning power is once again adversely affected by his disability; and the disability which gave rise to his original claim continues. Once a claimant testifies that his or her prior work-related injury continues, the burden shifts to the employer to prove the contrary. When a claimant returns to work with restrictions attributable to a work-related injury, is subsequently laid off, and petitions for the reinstatement of benefits, the claimant is entitled to the presumption that his loss of earning power is causally related to the continuing work injury. The employer may meet its burden by showing that the loss of earnings is caused by the bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits. In the instant case, there is no question that Claimant’s original injury was work-related.
Claimant’s resulting discharge was involuntary, and substantial evidence supported this finding. The WCJ made a credibility determination that Claimant had acted in good faith. Employer does not deny its failure to offer Claimant employment. As Employer did not offer Claimant employment within her restrictions, Claimant was entitled to reinstatement of her benefits.
Affirmed.
OCCUPATIONAL DISEASE
Volunteer Fire Companies of Lower Saucon v. David Cawley (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 10, 2023
Issues:
(1) Whether Claimant provided timely notice pursuant to Section 311 of the WC Act; (2) Whether Claimant was entitled to the presumption of causation afforded by Section 301(f) of the Act; and (3) Whether Claimant met his burden of proof under Section 108(n) of the Act?
Background:
Claimant was employed as an active volunteer firefighter with Employer since 1978. Claimant was also self-employed as a small-scale project handyman since 1990. In 2015, Claimant was diagnosed with kidney cancer, and in 2016, he was diagnosed with colon/rectal cancer. On December 27, 2017, Claimant filed a Claim Petition alleging that his two types of cancer are compensable based upon exposure to Group 1 carcinogens as a volunteer firefighter under Section 108(r) of the Act. Claimant sought total disability benefits as of November 30, 2015. Claimant later amended the Claim Petition to include occupational injuries under Sections 108(n) and 301(c)(1) of the Act. The WCJ granted Claimant’s Claim Petition, concluding that Claimant sustained his burden of proving his entitlement to benefits pursuant to Sections 108(n), 108(r), 301(c)(2), and 301(f) of the Act. The Board affirmed the WCJ’s grant of the Claim Petition.
Holding:
Employer’s argument that Claimant failed to timely notify Employer of his work injury was without merit. Notice is a prerequisite for receiving WC benefits, and the claimant bears the burden of demonstrating that proper notice was given. However, there was no basis to say that Claimant should have known about the potential causal connection between his cancers and his work as a firefighter when he retained his attorney. The “discovery rule” requires more than an employee’s suspicion, intuition, or belief.
Claimant never received medical notice of the relationship between fire service and cancers until receiving his expert’s report. The WCJ accepted claimant’s testimony as credible. Therefore, substantial evidence clearly supported the WCJ’s conclusion that Claimant timely notified Employer in accordance with Section 311 of the Act. Next, Employer’s argument that the WCJ erroneously applied the statutory presumption of entitlement to compensation in accordance with section 301(f) of the Act, is without merit. Claimant served four or more years in continuous firefighting duties, and successfully passed a physical examination prior to asserting a claim, and the examination failed to reveal any evidence of the condition of cancer. The Act only required the claimant produce evidence that it is possible that the carcinogen in question caused the type of cancer with which the claimant is afflicted. It does not require the claimant to prove that the identified Group 1 carcinogen actually caused claimant’s cancer. Claimant presented Employer’s pre-PennFIRS and PennFIRS reports reflecting his firefighting since 1979. Claimant was entitled to the presumption under Section 301(f) of the Act because he produced evidence that it is possible that an IARC Group 1 carcinogen caused the type of cancers with which he was afflicted. Finally. to prove his entitlement to WC benefits under the catch-all provision in Section 108(n) of the Act, Claimant had to show that his cancers resulted from his exposure by reason of his firefighting, that the cancers were causally related to his firefighting, and that the incidence of such cancers is substantially greater in that industry or occupation than in the general population. The WCJ deemed credible Claimant’s experts’ testimony that both colon and rectal cancers are more common among firefighters.
Affirmed.
JUDICIAL DISCRETION
Deborah R. Grooms v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 23, 2023
Issue:
Whether the Board erred in affirming the WCJ’s denial of her claim petition by capriciously disregarding substantial, competent evidence of record?
Background:
Claimant filed a claim petition alleging that she sustained injury to her back and neck while working for the City of Philadelphia. After reviewing the evidence as a whole, the WCJ concluded that Claimant failed to sustain her burden of proving that she suffered a compensable work-related injury and denied the claim. The Board affirmed.
Holding:
With respect to a claim petition, the claimant bears the initial burden of proving that an injury arose in the course of employment and was related thereto. In the event there is no obvious causal connection between the alleged disability and the accident, the claimant can only establish the requisite connection by unequivocal medical testimony. The WCJ has exclusive province over questions of credibility and evidentiary weight. A credibility determination will be overturned only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational. Where there is substantial evidence to support an agency’s factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence. The Board correctly affirmed the WCJ’s determination that Claimant failed to meet her burden of establishing that she sustained a compensable work-related injury. Claimant failed to establish that the WCJ’s credibility determinations were arbitrary and capricious, fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational.
Affirmed.
REIMBURSEMENT – OF AN OVERPAYMENT
John P. Lingelbach, Jr. v. Cummings Bridgeway, LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 4, 2023
Issue:
Whether the Board erred in determining that Employer could recoup a non-fault overpayment from Claimant’s future indemnity benefits?
Background:
Claimant injured his right knee while working for Employer. Claimant initially received temporary total disability (TTD) benefits at a rate of $683.24 per week. In response to Employer’s Petition to Modify Compensation Benefits, a WCJ issued a decision and order, in 2018, in which she reduced Claimant’s compensation rate to $392.06 per week for temporary partial disability (TPD), effective April 15, 2016. However, between April 25, 2018 and March 23, 2020, Employer mistakenly paid Claimant’s 20% attorney fee in addition to Claimant’s full weekly TPD, when it should have deducted the 20% attorney’s fee from Claimant’s weekly TPD payment. Employer overpaid Claimant a total of $7,962.94. Employer filed Review Petitions requesting credit for the overpayment. Claimant testified that the overpayment was not his fault and that he did not engage in any fraud, that a credit would inflict a financial hardship upon him. The WCJ rejected Claimant’s testimony. The WCJ found that Employer unjustly enriched Claimant through the overpayment. Rather than suspending Claimant’s benefits until Employer recouped the overpayment, the WCJ ordered Employer to reduce Claimant’s TPD payments by $74.42 per week until it recouped the overpayment. The Board affirmed.
Holding:
Even if the first WCJ decision was silent as to the payment of attorney’s fees, the Board determined there was no presumption that Claimant was entitled to have Employer pay his attorney’s fees since Employer prevailed on the underlying modification petition. Silence as to the payment of attorney’s fees did not somehow nullify Claimant’s responsibility for his attorney’s fees chargeable against the partial disability benefits, he was awarded. In this context, reimbursement is permitted. The employer is entitled to recoupment, as its overpayments were the result of a “mistaken belief that those payments were necessary to discharge its duty under the WCJ’s orders.” This is not a situation where the request for recoupment of counsel fees and litigation cost that an employer paid while its appeal was pending and after its request for supersedeas was denied. Here, the propriety of the award is not in dispute. The issue is simply a matter of overpayment. While the Workers’ Compensation Act does not allow disgorgement of an unreasonable contest attorney’s fee award that was previously paid to a claimant’s counsel, the Act does not address mistaken overpayments of properly awarded workers’ compensation benefits. As a result, the restriction on the application of equitable principles does not apply to this case.
Affirmed.
MUNICIPAL LAW – PENSION FUND REIMBURSEMENT
Bensalem Township v. Samuel Karley
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: January 3, 2023
Issues:
(1) Whether the trial court erred by denying Police Officer’s counterclaim for declaratory judgment challenging the legality of the workers’ compensation offset provisions in the Township’s police pension ordinance and in the severance agreement? (2) Whether the trial court erred by finding against Police Officer on the breach of contract claim? (3) Whether the trial court erred and abused its discretion in holding that there had been an event of conversion by the Police Officer?
Background:
On January 3, 2006, the Police Officer began full-time employment as a Township police officer. The terms of his employment were governed by the collective bargaining agreement (CBA) between the Township and the Police Benevolent Association (Union). The CBA provided, inter alia, for a disability pension. In 2014, the Police Officer became permanently unable to perform his duties. In 2015, the Police Officer entered into a severance agreement with the Township. The severance agreement provided that the Police Officer would receive a disability pension effective October 16, 2015. The severance agreement also provided that the amount of the monthly disability pension may be reduced by any amount of workers’ compensation benefit received or which may in the future be received by him. It further provided that the Police Officer had an affirmative duty to continue his workers’ compensation claim, cooperate in the requirements of that claim, and inform the Township of the status of the claim and any changes. Per the agreement, if workers’ compensation benefits ended or were changed in amount or otherwise, the offset to the disability pension would be eliminated or adjusted accordingly. In an earlier workers’ compensation proceeding, the WCJ issued a decision that the Police Officer was entitled to total disability compensation in the amount of $845 per week based on his average weekly wage of $2,318.39, as of the date of his injury. The weekly disability compensation amount of $845 was adjusted to account for his disability pension, as the Plan Actuary calculated that 37.1% of the monthly pension represented employer contribution to the plan. This reduced the weekly WC payment to $425.73. As WC was paying the Police Officer $425.73 per week, under the severance agreement, the Police Officer was required to remit the $425.73 weekly compensation benefit to the Plan. By letter of September 23, 2016, the Township’s pension administrator advised the Police Officer that he had improperly retained these workers’ compensation payments instead of remitting them to the Township, as required by the severance agreement. The pension administrator instructed the Police Officer that he must immediately deliver a certified bank check, payable to the ‘Bensalem Township Police Pension Fund,’ in the amount of $26,292.59, by no later than Friday, September 30, 2016, and that if he did not, the Township would start “reducing his monthly pension benefit” to account for the workers’ compensation payments owed to the Township. On October 19, 2016, the Township initiated a civil action against the Police Officer, asserting claims of conversion, breach of contract, promissory estoppel, and unjust enrichment arising from his refusal to remit his workers’ compensation payments to the Township. In response, the Police Officer asserted counterclaims of conversion, unjust enrichment, mandamus, declaratory judgment, and a violation of the Pennsylvania Wage Payment and Collection Law. On December 23, 2020, the trial court entered a judgment in favor of the Township on breach of contract and conversion.
Holding:
The offset imposed by the Township reduced the Police Officer’s disability pension below the minimum required in Section 5(e)(1) of Act 600, 53 P.S. § 771(e)(1). The trial court declined to rule on his crossclaim for declaratory judgment that the ordinance and the severance agreement violated the minimum pension required by Section 5(e)(1) of Act 600, because the Union was a necessary party to any declaratory judgment action. Nevertheless, the offset provision did not violate Section 450(c) of the Workers’ Compensation Act. That section merely prohibits collective bargaining that purports to diminish a claimant’s entitlement to workers’ compensation. The Police Officer’s workers’ compensation benefits were calculated strictly in accordance with Section 204(a) of the Act, using his average weekly wage and reducing it by 37.1% of his retirement disability. There was no “diminishment” that was not authorized by the Workers’ Compensation Act. (The Court also noted that a WCJ has no jurisdiction over the Pension Administrator, who is not a party to this litigation.) The offset at issue here was expressly authorized by the pension plan ordinance. It was agreed to by the Union in the CBA and by the Police Officer, personally, in the severance agreement. The CBA’s provision on the pension offset for workers’ compensation was binding on him. Even if the offset did not conform to Section 5(e)(1) of Act 600, the trial court explained that “parties may not avoid limitations in a CBA, claiming that it conflicted with the law, after they voluntarily negotiated and agreed to the contracted provisions.” There was no error by the trial court in deciding the matter strictly on the basis of the terms of the severance contract.
The trial court’s conclusion that the Police Officer breached the severance agreement with the Township was not in error. The Police Officer refused to remit his lump sum payment of $26,292.59, in workers’ compensation benefits, as specified in the severance agreement. Although the Township was able to recoup those monies by reducing the disability pension payments, it was required to file suit because the Police Officer refused to adhere to the terms of the severance agreement. Where parties enter into a valid contract, they are required to comply with its terms.
The trial court neither erred nor abused its discretion in finding that an event of conversion had occurred. Conversion is an act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession. The language of the documents is clear and unambiguous. The restitution taken by the Township, as deductions made from pension payments, was consistent with the language of the documents. Therefore, the trial court did not err in finding there was a conversion when the Police Officer took the workers’ compensation benefits without accounting for same. Although the Township recovered the converted monies, the “event” of conversion still took place.
Affirmed.
(Editor’s Note: This matter was not litigated through workers’ compensation forum, but came up through the Court of Common Pleas. A Petition for Reargument before the Commonwealth Court has been filed and is pending.)
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
01/01/2023 – 01/31/2023
BURDEN OF PROOF
Keith Devan v. Board of Trustees, Public Employees’ Retirement System
Superior Court of New Jersey, Appellate Division No. A-1340-20; 2023 WL 29327
Decided: 01/04/2023
Background:
On January 20, 2015, DeVan, who was a Camden County juvenile detention officer, was injured during the course of his employment. He received workers’ compensation benefits from August 2015 through January 28, 2016, and he retired on March 1, 2016. DeVan then applied for accidental disability retirement benefits and was granted ordinary disability by the Board on May 19, 2016, who found that he was totally and permanently disabled as of March 1, 2016. The Board postponed ruling on the accidental disability application.
In 2016, the union and the County signed a contract that awarded salary increases retroactive to January 1, 2013. In June 2019, the Board granted the application for accidental disability retirement benefits, and in December 2019 advised that the accidental disability retirement benefits would be calculated based on DeVan’s salary at the time of the accident. DeVan filed an administrative appeal, which was denied. The Board rendered a final administrative decision in December 2020.
Holding:
The court held that for the purpose of calculating the amount of DeVan’s accidental disability, the focus is on the salary at the time of the accident and included within that calculation are the retroactive raises until January 20, 2015. The court held that the Board correctly explained the calculation and DeVan has not shown that the Board’s calculation was incorrect.
The court stated that DeVan was confused by the Board’s reference to his workers’ compensation, which was relevant while he was on ordinary disability because ordinary disability is based on final compensation, or the average annual compensation during any three fiscal years providing the largest possible benefit. However, the ordinary disability analysis was inapplicable once accidental disability was granted by the Board.
Finally, the court held that given the plain language of the accidental disability statute, DeVan’s analysis of the workers’ compensation statute and related case law are inapplicable, and any attempt by DeVan to include salary increases after the date of injury are not permitted.
Affirmed.
