CASE SUMMARIES 12/01/2022 – 12/21/2022

Jan 11, 2023

PENNSYLVANIA WORKERS’ COMPENSATION CASE SUMMARIES

12/01/2022 – 12/21/2022

MEDICAL FEE REVIEW

State Workers’ Ins. Fund v. Harburg Medical (Bureau of WC Fee Review Hearing Office)

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 15, 2022

Issue:

Whether a causal relatedness denial rendered the provider’s fee review application premature by operating as a denial of liability for the work injury?

Background:

In 2004, Claimant sustained various injuries in a work-related incident while in the employ of the Employer. Employer issued a notice of compensation payable (NCP) accepting various injuries sustained by Claimant. At some point, SWIF reimbursed Harburg $1,725 for certain medical supplies and equipment prescribed to Claimant but denied payment for a piece of durable medical equipment described as a memory foam queen mattress overlay with cover, which was billed at $2,199.95. SWIF denied liability for the prescribed treatment on the basis that a current medical report was required specifically documenting the relationship of the prescribed mattress overlay to the original accepted work injury. However, SWIF did not seek utilization review concerning the prescribed treatment. Harburg applied for fee review contesting SWIF’s nonpayment for the prescribed mattress overlay. The Fee Review Section determined that SWIF was not obligated to pay the cost of the prescribed treatment because the service had not been properly billed. Harburg requested a hearing to contest the Fee Review Section’s determination. The Hearing Officer reversed the Fee Review Section’s decision and ordered SWIF to reimburse Harburg for the cost of the prescribed mattress overlay. The Hearing Officer reasoned that Workers’ Compensation Regulation 127.208(e) is clear and unequivocal that seeking utilization review, within 30 days of receipt of the billing, is a condition precedent to withholding payment. Thus, the Hearing Officer determined that SWIF could not deny reimbursement for the prescribed mattress overlay without first challenging the reasonableness and necessity thereof through utilization review.

Holding:

The Court rejected SWIF’s assertion that WC Regulation 127.255, “expressly” requires dismissal of Harburg’s fee review application as premature on the basis of SWIF’s “causal relatedness” denial. Despite contending that its “causal relatedness” denial constituted a denial of liability for Claimant’s work injury pursuant to subsection (1) of WC Regulation 127.255, SWIF inconsistently asserts that the present dispute turns solely on Employer’s liability for a particular medical treatment. SWIF did not request utilization review.

Thus, SWIF failed to toll the 30-day period in which to remit payment for the billed durable medical equipment. SWIF’s assertion that its “causal relatedness” denial in fact contested liability for Claimant’s work injury under subsection (1) of the above cited regulation lacks merit, because SWIF accepted liability for Claimant’s work injury by means of an NCP. Rather, SWIF’s assertion that the prescribed treatment is not causally related to Claimant’s work injury disputes liability for the treatment. SWIF’s denial alone does not render Harburg’s fee review application premature, because SWIF has not filed a request for utilization review of the treatment. SWIF was obligated to seek utilization review to dispute liability for Claimant’s treatment in order to render Harburg’s fee review application premature, because SWIF’s defense that the prescribed mattress overlay was not related to Claimant’s work injury was just another way of stating that it was not a reasonable or necessary procedure for treating Claimant’s diagnosis.

President Judge Cohn Jubelirer issued a dissenting opinion, wherein she disagreed that this Fee Review Application was not premature due to SWIF’s failure to seek Utilization Review.

Affirmed.

UPMC Benefit Management Serv., Inc. v. United Pharmacy Services (Bureau of WC Fee Review Hearing Office)

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 15, 2022

Issue:

Whether a causal relatedness denial rendered the provider’s fee review application premature by operating as a denial of liability for the work injury?

Background:

Claimant sustained a work-related injury. Claimant’s injury was accepted by a medical- only notice of compensation payable (NCP). In 2020, Claimant was prescribed compound cream with instructions to apply one to three pumps to the affected area two to four times daily, as needed. Between January and April 2020, Pharmacy issued three separate bills, each requesting payment of $2,249.98 for the compound cream dispensed to Claimant. UPMC denied payment on the basis that the prescribed treatment was not work related. Pharmacy filed applications for fee review pursuant to Section 306(f.1) of the Workers’ Compensation Act. The Fee Review Section denied each of Pharmacy’s fee review applications as prematurely filed on the basis that the issue of the causal relatedness of the prescribed compound cream to the work injury remained outstanding. Pharmacy requested a hearing to contest fee review determinations, asserting that the applications were not premature because Claimant’s injury was accepted by Employer, no party petitioned for utilization review, and UPMC’s 30-day period in which to remit payment following receipt of the disputed bills had lapsed. The Hearing Officer reversed the determinations of the Fee Review Section and ordered UPMC to issue payment plus statutory interest to Pharmacy for the medications dispensed to Claimant.

Holding:

None of the three prerequisites for deeming a fee review application premature has been met here. UPMC issued a medical-only NCP accepting liability for Claimant’s work- related injury. UPMC thereafter denied payment for the cost of the prescribed compound cream on the basis that the treatment was not causally related to Claimant’s work injury. Accepting liability for a work-related injury by means of an NCP does not preclude an insurer’s ability to question liability for a particular treatment. Either an employer or its insurer may file a petition for medical review of treatment contesting the causal relatedness of the prescribed treatment to the underlying work injury. In the alternative, either an employer or its insurer may petition for utilization review of the reasonableness or necessity of a prescribed treatment. Neither Employer nor UPMC pursued either means of recourse in the instant matter. Therefore, UPMC was obligated to dispute liability for Claimant’s treatment through the utilization review process in order to render Pharmacy’s fee review application premature. UPMC’s defense that the treatment was not causally related to Claimant’s work injury was just another way of stating that the compound cream was not a reasonable or necessary ‘procedure’ for treating Claimant’s diagnosis. President Judge Cohn Jubelirer issued a dissenting opinion, wherein she disagreed that this Fee Review Application was not premature due to SWIF’s failure to seek Utilization Review.

Affirmed.

MODIFICATION BASED UPON JOB AVAILABILITY

Kirk Wescoe v. Fedchem, LLC & SWIF (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 7, 2022

Issues:

Whether the WCJ erred in granting Employer’s modification?

Background:

Claimant sustained a work-related injury to his lower back. Employer acknowledged the injury. Employer and the State Workers’ Insurance Fund (collectively, Respondents) filed a petition seeking to modify Claimant’s disability benefits based upon their labor market survey and earning power assessment. The WCJ denied Employer’s petition and awarded Claimant litigation costs. The Board agreed that Employer had failed to establish the existence of “vocationally suitable” work. On appeal to the Court, a panel determined that the WCJ had erred. The panel therefore remanded for further proceedings. On remand, the WCJ granted the petition.

Holding:

An employer may seek a modification of a claimant’s benefits by offering the claimant a specific job that he is capable of performing, or establishing earning power through expert opinion evidence, which is based on job listings with agencies of the department, private job placement agencies, and advertisements in the usual employment area. The employer bears the burden of proving the claimant’s earning power. A claimant need not receive a potential job offer in order for the employer to establish that the claimant has earning power. However, the jobs identified by the employer must be actually open and potentially available, not simply jobs that are already filled with existing employees.

Evidence of a job application alone is insufficient to meet the employer’s burden. If there is additional circumstantial evidence about a job application, however, such evidence may support a finding that the position is open and available. A claimant may refute the employer’s evidence by showing that the employer’s labor market survey was erroneous, or that the claimant’s actual experience with the employers identified in the employer’s labor market surveys shows that the positions were not available. In this matter, there was sufficient circumstantial evidence to corroborate Claimant’s application, thus satisfying Employer’s burden that the position remained open and available. A representative at the location indicated that he could not print the application but recommended that Claimant apply online for the position. Thereafter, Claimant testified that he applied for the job. Based on this testimony, and the WCJ’s credibility findings, the Board inferred that the position remained open and available. Therefore, the WCJ did not improperly shift the burden to the Claimant. The contested issue was the availability of suitable work. As the Board properly reasoned, Claimant did not prevail on this issue. Therefore, the Board appropriately reversed the WCJ’s award of litigation costs. There was no legal error in the Board’s affirmance of the WCJ’s finding that the position was open and available and its reversal of the WCJ’s award of attorney’s fees.

Affirmed.

Lower Moreland Township v. John MacDonald (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 19, 2022

Issues:

Whether, when calculating Claimant’s earning capacity, the WCJ misapprehended and disregarded the evidence and ignored the plain language in Section 306(b)(2) of the Act?

Background:

Claimant suffered a work injury while employed as a police officer. Employer accepted the work injury through issuance of a notice of compensation payable (NCP). In 2019, Employer filed a petition to modify Claimant’s benefits based on an earning capacity and labor market survey (LMS) which determined that Claimant had an earning capacity of at least $1,538 per week. The WCJ credited Claimant’s testimony regarding his physical limitations to the extent they were consistent with the opinions of employer’s expert, whose testimony the WCJ accepted in its entirety. The WCJ found that Claimant was well-suited for work in customer-oriented occupations, such as sales. The WCJ found that Claimant could earn $60,000 in an entry-level position per the LMS. Employer appealed to the Board, arguing that the WCJ erred in failing to consider all 17 positions identified in the LMS, that the WCJ incorrectly calculated Claimant’s earning capacity, and that the WCJ failed to issue a reasoned decision. The Board rejected Employer’s arguments and affirmed the WCJ. The Board concluded that the WCJ did not err in calculating Claimant’s earning capacity, as that issue is a question of fact for the WCJ, and the WCJ’s findings were supported by substantial evidence.

Holding:

The WCJ is the ultimate finder of fact and exclusive arbiter of credibility and evidentiary weight. The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, and the WCJ is not required to accept even uncontradicted evidence. So long as the findings of the WCJ are supported by substantial evidence, they must be accepted as conclusive on appeal. Employer’s argument that the WCJ somehow misapprehended the evidence or mischaracterized testimony was rejected, as unsupported by the record. As the ultimate finder of fact, the WCJ may accept or reject, in whole or in part, the testimony of any witness, even that which is uncontradicted, and this Court may not overturn his findings if they are supported by substantial evidence. Further, the assessment of a claimant’s earning power was a question of fact for the WCJ and an LMS indicating that the claimant could earn a range of salaries from $140 to $376.60 per week constituted substantial evidence supporting the WCJ’s finding that the claimant could earn the highest salary in that range.

Affirmed.

JUDICIAL DISCRETION

Amazon.Com Serv. LLC, American Zurich Ins. & Sedgwick v. Engel L. T. Roman (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 1, 2022

Issues:

(1) Whether the WCJ erred by relying on the equivocal and legally incompetent testimony of Claimant’s medical expert; (2) Whether the WCJ capriciously disregarded substantial competent evidence in finding that Claimant met her burden of proof; (3) Whether the WCJ failed to render a reasoned decision?

Background:

Claimant sustained an injury to her right leg during the course and scope of her employment with Employer. Employer issued a Notice of Temporary Compensation Payable (NTCP) acknowledging Claimant’s injury. Employer later filed a Termination Petition. Claimant subsequently filed a Review Petition alleging that the injury description was incorrect and that her condition had worsened. The WCJ granted the Review Petition and denied the Termination. The Appeal Board affirmed.

Holding:

Medical testimony will be found unequivocal if the medical expert, after providing a foundation, testifies that in his professional opinion that he believes a certain fact or condition exists. An expert’s opinion will not be deemed incompetent simply because an expert testifies that a claimant’s work injury either caused an injury or aggravated a preexisting injury. Claimant’s expert’s testimony was competent as a matter of law, as it sufficiently definite and unequivocal to render it admissible. A capricious disregard only occurs when the WCJ deliberately ignores relevant, competent evidence. The WCJ is the fact finder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Neither the Board nor this Court may reweigh the evidence or the WCJ’s credibility determinations. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. The evidence must be viewed in a light most favorable to the party that prevailed before the WCJ. The pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Because the WCJ acted within his province, the WCJ did not capriciously disregard substantial, competent evidence in finding that Claimant met her burden of proof under the Review Petition. To satisfy the reasoned decision requirements, a WCJ must set forth the rationale for the decision by specifying the evidence relied upon and reasons for accepting it. The WCJ’s credibility determinations complied with the reasoned decision requirement because they contained more than just a conclusory statement regarding the experts’ credibility. The WCJ explained that certain testimony was more credible and persuasive than other testimony because it was consistent with Claimant’s credible testimony, and because Claimant’s treating physician was more familiar with Claimant’s experiences and symptoms. The WCJ explained why he rejected employer’s expert’s testimony. Accordingly, the WCJ rendered a reasoned decision.

Affirmed.

Columbia County Commissioners v. Kristie Rospendowski (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided: December 1, 2022

Issue:

Whether an employer can offset an overpayment of workers’ compensation (WC) benefits paid for one work-related injury through a credit against an award of benefits for a subsequent work-related injury?

Background:

Claimant is a full-time deputy sheriff for Employer. On January 7, 2011, Claimant sustained a work-related broken right ankle. Claimant was off work for that injury off and on over a period of four years. In a modification petition filed by Employer related to the 2011 Injury, Employer sought to modify a supplemental agreement based on its overpaying Claimant $14,233.88 in wage loss benefits due to Claimant’s failure to disclose income from other employment and/or provide earnings data as required by the supplemental agreement. The WCJ held that Claimant had been unjustly enriched by the overpayment and that Employer was entitled to a recoupment of benefits. Ultimately, Claimant returned to full-duty work without wage loss in 2016, her wage loss benefits for the 2011 injury ended, and $10,333.88 of the overpayment amount remained unpaid.

Claimant subsequently sustained a different work-related injury, to her low back, on January 22, 2019. Employer stipulated that it would accept the injury as a medical-only claim, notwithstanding Claimant’s undisputed wage loss, because it wanted to recoup part of the overpayment from the 2011 injury as a credit against the benefits owed for the 2019 injury. The WCJ granted the Claim Petition. On the issue of the payment of wage loss benefits for this period, the WCJ held that Employer was not entitled to the requested credit against the wage loss benefits for the 2019 injury and directed Employer to pay Claimant. Employer appealed and the Board affirmed.

Holding:

The parties all agreed, there is no provision in the Act or its regulations that expressly allows the relief Employer seeks, nor is there a provision that prohibits it, and no court has granted an offset to recoup an overpayment for one work-related injury against the benefits of a subsequent work-related injury. However, the Court has found that WCJs have implied authority under the first paragraph of Section 413(a) of the Act to impose equitable remedies, such as restitution and recoupment, to avoid double recoveries and unjust enrichment. Section 413[(a)] does not expressly provide that a WCJ or the Board has equitable powers and the Act as a whole is silent on the question of equitable remedies. Section 413(a), however, gives a WCJ broad authority to modify a notice of compensation payable, award or agreement, and a WCJ may thereby reach the question of whether a party was erroneously overpaid or underpaid. Because Section 413(a) gives a WCJ the power to decide these difficult problems, which often may be resolved only by disgorging funds from the party who has been unjustly enriched, we believe that the authority to utilize the equitable remedy of restitution is implied in the statute. Under Section 413(a), in the absence of an existing agreement, there is no recoupment for an overpayment of benefits. If there was no agreement, the Court has concluded that Section 413(a) did not provide the WCJ the power to order a recoupment for an overpayment of benefits. The authority to order recoupment through a credit against future benefits is limited to situations where the overpayment and credit related to the same, existing agreement, for the same injury. As this requirement is not present in this case, Section 413(a) does not authorize a WCJ to grant Employer the credit it seeks. The fact that no recourse may exist under the Act does not authorize this Court to act outside its role to create a remedy that the General Assembly did not provide, or to apply a remedy that does not arise under a statutory provision. There was no error in denying Employer’s request for a credit against Claimant’s WC benefits for the 2019 injury for the overpayment of benefits related to Claimant’s 2011 injury.

Affirmed.

NOTICE AND VOLUNTARY RETIREMENT

JJ White, Inc., v. Kader Yahawi (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 2, 2022

Issues:

1. Whether the Board improperly concluded that Claimant provided adequate and timely notice under the Act? 2. Whether the claimant voluntarily retired?

Background:

Claimant was injured while lifting a bucket out of a hole, immediately feeling pain in his lower left side and back. Claimant stopped working and reported the injury to his union shop steward, Ed Harkins, that same day. Claimant filed a claim petition alleging that he sustained a work injury. Employer argued that Claimant did not satisfy the notice requirements of section 313 of the Act as he only reported his injury to the shop steward, Mr. Harkins, who never reported the alleged work injury to Employer.

Holding:

The Board did not err or exceed its authority in overturning the WCJ’s determinations of credibility and the weight to be accorded evidence, as those are the prerogative of the WCJ, not the Board. The claimant carries the burden of demonstrating that timely notice of an alleged injury was given. Sections 311 and 312 of the Act provide when and in what form a claimant must give notice to an employer in order to perfect his claim.

Notice of a work-related injury is required within 120 days of the injury. Notice of a work-related injury may be given to the immediate or other superior of claimant, to the employer, or any agent of the employer regularly employed at the place of employment of the claimant. A supervisory position is not the only requirement under the Act despite Employer’s policy. The Act also allows an agent of the employer or other superior of the claimant to receive a report of an injury. The undisputed evidence demonstrated that Mr. Harkins, the shop steward, performed several functions as an agent of Employer for purposes of accepting reports of work injuries from union employees. The Court determined that Mr. Harkins acted with authority on behalf of Employer and there was no error in the Board’s conclusion that the WCJ capriciously disregarded that evidence and failed to properly apply the provisions of section 313 of the Act. Claimant provided adequate and timely notice under section 313 of the Act.

A claimant who has been forced into retirement as a result of a work-related injury may continue to receive workers’ compensation benefits. An employer may seek a suspension of those benefits where a claimant voluntarily leaves the workforce rather than being forced into retirement because of the work injury. An employer bears the burden of showing that a claimant has retired. There is no presumption that a claimant has voluntarily retired from the entire workforce merely because a claimant has accepted some type of pension benefit. There is merely an inference that the claimant has retired. The factfinder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce. If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. The WCJ’s determination that Claimant did not retire from the entire workforce was based in part on his testimony that he was unable to earn a living after his injury, and he took the annuity as a lump sum in order to live. Moreover, Claimant credibly testified that he still pays union dues and attends monthly union meetings.

Affirmed.

COURSE AND SCOPE OF EMPLOYMENT

Lemont Blackmon v. Sodexo Global Services (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: December 7, 2022

Issue:

Whether an employee injured in an accident while driving home after receiving therapy for a prior work-related injury was injured in the scope of his employment?

Background:

Claimant suffered a work-related injury to his right elbow in August 2019 while working for Employer at West Chester University. That injury resulted in no wage loss but required physical therapy, for which Employer issued a medical-only notice of compensation payable. Claimant was receiving physical therapy several times a week at a facility in Ridley Park. Claimant and Employer reached an agreement by which on days he received therapy he would start work earlier in the day at 5:00 a.m., work some hours, leave for his therapy appointment in Ridley Park, and then be free to do as he pleased for the rest of the workday until his supervisor clocked him out. Claimant would be paid for a full workday, with the understanding that the therapy facility was close to his home in Philadelphia and that to return to West Chester University’s campus would leave him with little remaining work time. On September 20, 2019, after leaving work and going to therapy, Claimant was on his way home, with a brief detour to pick up his dog from a friend’s house. After picking up his dog, Claimant was involved in a motor vehicle accident while he was still on the clock at his job but free from further work responsibilities. The accident left him with extensive injuries which prevented his return to work. Claimant filed a claim for benefits for the injuries sustained in the accident. The WCJ denied that claim because she concluded that his injuries were not work-related. The Board affirmed.

Holding:

A claimant’s injury suffered while driving to an appointment necessary for treatment as a result of a work-related injury was work-related, and thus in the course of his employment, because, but for driving to his physician for treatment of his earlier work- related injury, claimant would not have been in a position to be involved in the accident which caused his further injuries. Claimant asked the court to extend this rule to cover those, like him, who are leaving a therapy appointment necessitated by a work-related injury as an alleged special circumstance in furtherance of the business of Employer.

However, this is distinguishable in that that claimant’s trip was to physical therapy for an earlier work-related injury, and thus qualified for the “special circumstances” exception to the general “going and coming” rule that an employer is not liable for injuries that occur while the employee is traveling off premises. Claimant had finished his physical therapy appointment and, although being paid, was left to his own devices to do as he pleased. Claimant’s workday was, for all intents and purposes, finished for the day, as he had concluded any activities that could be considered a special assignment for the employer or furthering the business of the employer. Claimant had no further obligation to Employer for the rest of the day. As such, the claim was not compensable.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

Jeffrey Chamberlin v. Commonwealth of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum

Decision Decided: December 6, 2022

Issues:

Whether the IRE process violated claimant’s rights under the Pennsylvania Constitution?

Background:

Claimant suffered an injury while employed as a Youth Development Counselor Supervisor at a juvenile detention facility. Employer issued a notice of compensation payable (NCP) which acknowledged Claimant suffered a work-related injury. Employer filed a petition seeking to modify Claimant’s benefits status from total to partial disability. Employer relied on an impairment rating evaluation (IRE). Claimant filed a review petition seeking to amend the description of his work injury. The WCJ entered an order granting Employer’s petition to modify Claimant’s benefit status from total to partial disability. Moreover, the order granted Claimant’s review petition in part. The Board affirmed.

Holding:

The Court reviews workers’ compensation orders for violations of a petitioner’s constitutional rights, violations of agency practice and procedure, and other errors of law, as well as whether substantial evidence supports the findings of fact necessary to sustain the decision. The WCJ is the factfinder in workers’ compensation matters and is entitled to weigh the evidence and assess credibility of witnesses. The WCJ provided a sufficiently “reasoned decision” under Section 422(a). The WCJ supplied findings of fact and credibility determinations with explanations for her determinations. Further, the Act’s current IRE provisions do not violate the Pennsylvania Constitution.

Affirmed.

Thomas Murray v. Lycoming Supply, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unreported Memorandum Decision

Decided: December 9, 2022

Issue:

Whether the WCJ committed an error of law by reinstating benefits as of the date claimant filed his Reinstatement Petition rather than the date of his 2010 IRE?

Background:

Claimant was working as a demolition laborer for Employer and suffered a low back injury. Claimant began receiving temporary total disability (TTD) shortly after his injury. Claimant underwent an IRE in 2010 which found that Claimant had a Percentage of Impairment Rating (Impairment Rating) of 13%. As his Impairment Rating was under 50%, the Bureau of Workers’ Compensation issued a Notice of Change of Workers’ Disability Status from TTD to temporary partial disability (TPD) on August 13, 2010.

Claimant did not appeal. In January 2020, Claimant received his final payment of TPD and on February 26, 2020, Claimant filed a Reinstatement Petition. Pursuant to Section 306(a.3) of the Act, on February 17, 2020, Claimant underwent another IRE. Relying on the IRE results, Employer filed a Petition to Modify seeking to modify Claimant’s benefit status from TTD to TPD. Claimant had an Impairment Rating of 11%. The WCJ found Claimant met his burden of proving his benefits should be reinstated. The WCJ granted Claimant’s Reinstatement Petition arising from the August 4, 2010 IRE effective February 26, 2020 (the date of filing). The WCJ also granted Employer’s Petition to Modify as of February 17, 2020, the date of the latter IRE. The Board affirmed the WCJ’s decision granting Claimant’s Reinstatement Petition and Employer’s Petition to Modify on October 20, 2021. Claimant appealed.

Holding:

The WCJ and Board committed no error of law by reinstating his benefits as of the date claimant filed his Reinstatement Petition rather than the date of his 2010 IRE. Claimant did not appeal the Board’s decision to grant Employer’s Petition to Modify.

Affirmed.

Wendy Johnston v. Sealed Air Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion Decided: December 12, 2022

Issue:

Whether the provisions of Act 111, pertaining to IREs, is constitutional?

Background:

Claimant sustained a work-related injury while employed by Employer. Employer issued a Notice of Compensation Payable. In 2018, a WCJ approved a Stipulation of Facts expanding the nature of the injuries. In 2021, Claimant underwent an IRE, provided for in Section 306(a.3) of the WC Act (Act), which resulted in a whole-body impairment rating of 27%. Employer filed the Modification Petition, seeking to modify Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted Employer’s Modification Petition. Claimant appealed to the Board. The Board affirmed.

Holding:

The Court rejected Claimant’s arguments as to constitutionality and retroactivity, based upon its prior precedent. The Court noted that the claimant was merely preserving the arguments for presentation to the PA Supreme Court.

Affirmed.

Lauren M. Sanders v. Recordtrak, LLC (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision Filed: December 12, 2022

Issue:

Whether Act 111 is an unconstitutional delegation to the AMA and violates article II, section 1 of Pennsylvania’s Constitution?

Background:

While in the course of her employment with Employer, Claimant sustained a work- related repetitive motion injury. In 2020, claimant underwent an IRE, as provided for in Section 306(a.3) of the Act. The IRE evaluator opined multiple diagnoses, and calculated Claimant’s whole-body impairment as 25%. Consequently, Employer filed a Modification Petition seeking to change Claimant’s disability status from total to partial. Claimant opposed the Modification Petition on the grounds that Act 111 is unconstitutional. The WCJ granted Employer’s Modification Petition and the Board affirmed.

Holding:

The Court rejected Claimant’s argument and held that Act 111 is not an unconstitutional delegation to the AMA and does not violate article II, section 1 of Pennsylvania’s Constitution. Further, the court noted that, an NCP should define compensable injury for purposes of this inquiry. However, such holding does not determine the range of impairments which may be due to such injury. It is the physician-evaluator who determines the injuries at the time of the IRE, not the NCP.

Affirmed.

Donald Stevenson v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision Decided: December 12, 2022

Issue:

Whether the retroactive effect and application of Act 111 violated the federal and state constitutions?

Background:

Claimant was injured in November 2011 in the course and scope of his employment for Employer as a corrections officer. Claimant was paid benefits pursuant to a notice of temporary compensation payable and various amended notices of compensation payable. Employer requested the designation of a physician to perform an IRE. A physician was so designated, who examined Claimant on July 13, 2020, and prepared an IRE report finding that Claimant had a 20% impairment rating. Employer filed a petition to modify compensation benefits based upon the 20% impairment rating assigned. In July 2021, the WCJ issued a decision and order granting the petition to modify benefits from temporary total disability to temporary partial disability effective July 13, 2020.

Holding:

The Court previously squarely addressed whether there is a vested right in continued receipt of temporary total disability that is violated by the IRE process and concluded that there is not. The Court stated explicitly that if the employer pursued a new IRE under Act 111 following the procedures of Section 306(a.3), it would be entitled to credit for the weeks of partial disability benefits paid prior to the effective date.

Affirmed.

EMPLOYMENT RELATIONSHIP – INDEPENDENT CONTRACTOR

Manjinder S. Tiwanna, Dec., by Balwinder Kaur, Dependent v. Jatt Friends, Inc., Kaolin Mushroom Farms, Inc., Uninsured Employers Guaranty Fund, and USA Freight, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 1, 2022

Issue:

Whether the WCJ’s factual findings as to Decedent’s employment status as an independent contractor were supported by substantial evidence?

Background:

Before June 1, 2018, Decedent was driving a tractor trailer pursuant to an independent contractor agreement with Jatt. Decedent signed a notice of termination, with an effective date of May 31, 2018, which indicated that he was “voluntarily terminating his contract for driving with Jatt ….” On June 1, 2018, Decedent signed an Independent Contractor Agreement with Race, wherein Race agreed to obtain delivery jobs for Decedent, Decedent agreed to pay Race a dispatch fee, and Decedent agreed to lease a tractor trailer from Race. The agreement also specified “[i]t is expressly agreed that Decedent shall always be acting as an independent contractor during the performance of any services under the Agreement. This Agreement does not constitute, and shall under no circumstances be construed as constituting, or creating, an employer/employee relationship between Race and Decedent.” Decedent died on June 5, 2018, due to injuries he sustained from a tractor trailer accident. At the time of his death, Decedent was transporting a load of mushrooms, which Kaolin subcontracted to Race.

Claimant/Mother filed Fatal Claim Petitions against Jatt and Race. Claimant alleged that she was living with and totally dependent upon her son. Shortly thereafter, Claimant filed claim petitions for benefits from UEGF against Jatt and Race. The UEGF then filed joinder petitions, seeking to add Kaolin and USA Freight as additional employers. Due to Race and Jatt’s failure to timely file an answer to Claimant’s Fatal Claim Petitions, the WCJ deemed the factual allegations in those petitions admitted. Based upon numerous factual findings, the WCJ determined that Claimant did not sustain her burden of proving that Decedent’s death was caused by an injury he sustained during his employment with one of alleged Employers and denied Claimant’s Fatal Claim Petitions. The Board affirmed.

Holding:

The Court reviewed the considerations in determining a claimant’s employment status, noting that, while no hard and fast rule exists to determine whether a particular relationship is that of employer-employee or owner-independent contractor, certain guidelines have been established and certain factors are required to be taken into consideration. These include (1) control of manner the work is done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) nature of the work/occupation; (5) skill required for performance; (6) whether one is engaged in a distinct occupation or business; (7) which party supplies the tools/equipment; (8) whether payment is by time or by the job; (9) whether work is part of the regular business of employer; and, (10) the right to terminate employment. Control over the work to be completed and the manner in which it is to be performed are the primary factors in determining employee status. Control exists where the alleged employer possesses the right to select the employee; the right and power to discharge the employee; the power to direct the manner of performance; and the power to control the employee. Moreover, payment of wages and payroll deductions are significant factors, as is provision of workers’ compensation coverage. The existence of an employment or independent contractor agreement is another factor to consider, but it is not, by itself, dispositive.

Although Race would be violating its contract with Kaolin by having Decedent transport Kaolin’s load as an independent contractor, this does not preclude a finding that Decedent was acting as an independent contractor. Nor does Kaolin’s transportation manager’s belief that Decedent was Race’s employee. Instead, these were merely factors in determining whether Decedent was Race’s employee. The WCJ extensively analyzed and weighed the testimony and documentary evidence in this matter. Each of the WCJ’s factual findings were supported by testimony or documentary evidence that the WCJ found to be credible. Therefore, the Board did not err in determining the WCJ’s findings of fact were supported by substantial evidence and that the WCJ did not commit an error of law when it determined Decedent was an independent contractor at the time of his death.

Affirmed.

STATUTE OF LIMITATIONS

Sueanne Keim v. PMC Pinnacle Hospitals (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: December 12, 2022

Issue:

Whether the WCJ erroneously concluded that the payment of medical expenses under a medical-only NCP does not toll the statute of limitations under Sections 315 and 413(a) of the WC Act?

Background:

Claimant was injured on April 4, 2017, while in the course and scope of her employment. Employer issued a medical-only NTCP. The NTCP converted to a Notice of Compensation Payable (NCP). Claimant filed a Claim Petition in 2021, more than 3 years after the injury, seeking partial disability benefits from April 4, 2017 through March 31, 2021, and total disability benefits from April 1, 2021 and ongoing. On August 18, 2021, the WCJ denied and dismissed the Claim Petition, finding that Employer’s medical expense payments did not toll the statute of limitations and, therefore, the Claim Petition was time barred. The Board affirmed.

Holding:

Section 315 of the Act mandates that in cases of personal injury all claims for compensation shall be forever barred, unless, within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition. Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of three years from the time of the making of the most recent payment prior to date of filing such petition. The effect of issuing a medical-only NCP is distinct from the effect of a WCJ ruling that a claimant has suffered a loss of earning power and granting a claim petition but immediately suspending benefits. Under Section 413(a) of the Act, a reinstatement petition must be filed within three years after the date of the most recent payment of compensation made prior to the filing of such petition. The payment of medical benefits by an employer does not constitute compensation for the purposes of Section 413(a). There was no evidence presented, nor any findings of fact made, to establish that Employer intended its medical expense payments to substitute for disability compensation. Similarly, there was no evidence presented, and no findings made, that Employer misled Claimant by only paying medical benefits, that it intentionally or unintentionally deceived her, or that it somehow lulled her into a false sense of security sufficient to toll the statute of limitations. Here, by issuing the medical-only NCP, Employer made its intent expressly clear that it would pay Claimant’s medical expenses but accepted no liability for wage-loss benefits. A claimant has three years from either the date-of-injury or the last payment of compensation to file a review petition or it is untimely. Where, as here, no disability compensation was paid, the date-of-injury controls.

Affirmed.

NEW JERSEY WORKERS’ COMPENSATION CASE SUMMARIES

12/01/2022 – 12/23/2022

BURDEN OF PROOF

Dennis Coaxum v. Board of Trustees, Police and Firemen’s Retirement System

Superior Court of New Jersey, Appellate Division No. A-0568-21; 2022 WL 17726234

Decided: 12/16/2022

Background:

Dennis injured his low back on July 18, 2017 while carrying a man down a narrow flight of stairs with his partner. He was sent to the workers’ compensation doctor, who prescribed him medicine and returned him to full duty with no restrictions. After two visits, Claimant complained to his supervisor, and he then returned for a third time, when he was referred for physical therapy and injections, and put on light duty.

Light duty eventually became an issue, as he was unable to take his prescribed medication and work. He stated he was advised that he either needed to retire and apply for accidental disability retirement benefits (ADRB), or be written up for failure to be medically cleared. On February 24, 2018, Dennis applied for accidental disability retirement benefits. The Board denied the application, and the matter was transferred to the Office of Administrative Law. The Administrative Law Judge (ALJ) decided that Dennis had not proven he was totally and permanently disabled and did not prove his injury was “undesigned and unexpected.”

Holding:

The court reviewed the testimony of Dennis’s expert, Dr. Shah, and the Board’s expert, Dr. Berman, and concluded that the ALJ’s findings, and specifically credibility conclusions, were supported by the substantial evidence in the record. Since the Board did not err in determining that Dennis failed to prove he was permanently and totally disabled, the court’s review would normally end there, however, they addressed whether his injury was “undesigned and unexpected.”

The court summarizes the Moran and Brooks cases cited by Dennis, which the court then distinguishes. The court held that Dennis was performing his normal job duties at the time of the incident, as he had training to carry people in the manner he was during the incident. Further, the court stated that the record did not contain any evidence that his injury arose from anything other than ordinary strenuous work effort.

The court held that the Board’s finding that Dennis is not totally and permanently disabled and the incident was not undesigned and unexpected was supported by credible evidence and not arbitrary, capricious, or unreasonable.

Affirmed.

CAUSATION & FIDUCIARY DUTY

Holm v. Purdy

Supreme Court of New Jersey 2022 WL 17587788

Decided: 12/13/2022

Background:

The administratrix of the estate of an LLC member (Holm) who died after falling at their workplace brought action against the LLC’s insurance broker (Purdy) and asserted claims of professional negligence and breach of fiduciary duty, stemming from the allegation that the broker did not advise the LLC that they could obtain workers’ compensation coverage for the member. A jury trial ensued, and the Superior Court, Law Division, Monmouth County granted the broker’s motion for an involuntary dismissal and motion for judgment at trial. The administratrix appealed, and the Superior Court, Appellate Division affirmed in part and reversed in part, and remanded the case for new trial. The broker petitioned for certification.

Robert Friedauer and his brother Walter owned Holmdel Nurseries from 1978, eventually forming an LLC in which they were each members owning 50%. Robert’s sons Christopher and Michael worked part-time at the nursery starting as teens, then became full-time employees after college. Defendant has decades of experience as an insurance broker, specializing in commercial insurance for agriculture-related businesses. He became the insurance broker for Holmdel Nurseries in 2002. From that time, he discussed with Robert the various types of insurance available, and Robert instructed defendant to obtain policies including workers’ compensation. For a year after workers’ compensation coverage became available for LLC members, Holmdel Nurseries obtained that coverage for Robert and Walter, however, after Robert broke his wrist at work, he and his brother decided it was not cost-effective to maintain workers’ compensation insurance.

Defendant testified that every policy renewal included the form by which the LLC could elect workers’ compensation coverage. Plaintiff denies that the LLC received the notices of election. From 2002 to 2012, Holmdel Nurseries provided no workers’ compensation coverage to LLC members, but Christopher and Michael were covered as employees.

In 2012, Christopher and Michael bought Walter’s 50% interest in the nursery. The agreement was retroactive to January 1, 2012, making Michael and Christopher no longer employees, but LLC members as of that date. On July 12, 2012, defendant had his annual meeting with Holmdel Nurseries management to discuss the LLC’s insurance needs. All parties agree that during that meeting, defendant did not tell Christopher or Michael that because they were now LLC members rather than employees, they were not covered by the workers’ compensation insurance or that the LLC could elect to purchase workers’ compensation insurance that would cover them.

On February 15, 2015, Christopher was at work preparing trucks for snowplowing. Michael stated that Christopher seemed completely out of it, and Christopher told him that he had slipped and hit his head so hard he saw stars. Michael later found Christopher dead in a truck.

Plaintiff filed this action in the Law Division, asserting professional negligence, and that defendant breached his duty to act as an insurance broker of reasonable skill and diligence by failing to recommend basic insurance coverage such as workers’ compensation, disability, or life insurance. After discovery, defendant moved for summary judgment, and plaintiff counter-moved for partial summary judgment, both of which were denied.

At trial, plaintiff testified, along with Robert and Michael, who stated that if they had been aware of the availability of insurance coverage for LLC members, they would have obtained such coverage. Two experts also testified on behalf of the plaintiff. Plaintiff also sought to introduce the autopsy report to prove that the death was work-related, but the trial court excluded the report. Defendant testified on his own behalf and had his own expert testify.

The trial court held that an insurance broker owes a duty to an LLC to inform them of the availability of workers’ compensation insurance, however, it rejected plaintiff’s argument that an LLC’s broker has a duty to inform individual LLC members of their right to elect workers’ compensation coverage. The court also found no evidence that Christopher would have decided that the LLC would provide workers’ compensation insurance to its members had he been aware of its availability, and found no evidence that Christopher suffered a work-related injury, and therefore could not decide if his death would have been compensable if they had insurance. The trial court granted defendant’s motion for an involuntary dismissal and judgment at trial. Plaintiff appealed, and the Appellate Division affirmed the trial court’s denial of plaintiff’s cross-motion for partial summary judgment and reversed the trial court’s grant of defendant’s motion for involuntary dismissal and motion for judgment at trial.

Holding:

The court held that they must consider the foreseeability of harm to a potential plaintiff and then analyze whether accepted fairness and policy considerations support the imposition of a duty. There are four factors they must weigh: 1) relationship of the parties, 2) nature of the risk, 3) opportunity and ability to exercise care, and 4) public interest.

The court stated that insurance carriers and brokers have a duty to advise insureds of their coverage needs where the insurer is aware of a particular peril, but a broker is not responsible for failure to procure coverage when there is no evidence that insured requested such coverage.

The court held that the fiduciary duty of a broker is constrained to the categories of insurance coverage that the broker undertakes to obtain for the insured, or the coverage necessitated by a particular peril known to the broker, and there is no duty to advise an insured about the many varieties of insurance available.

Regarding the first factor, the relationship of the parties, the court held that defendant was the insurance broker to Holmdel Nurseries for over a decade and was charged by the company to secure workers’ compensation policies every year. They further stated that by virtue of that role, he had a statutory obligation to ensure that the LLC received the mandatory notice, and Christopher was in the category of individuals who the Legislature intended to protect. Therefore, the relationship of the parties favors the imposition of a duty in this matter.

Regarding the second factor, the court held that the risk imposed on Christopher and his dependents were significant, as the trial record shows Christopher conducted potentially dangerous tasks in his job and raises the specter that he would suffer a serious work- related injury without workers’ compensation policy. Therefore, the court held that the facts support the imposition of a duty.

With regard to the third factor, the court held that defendant had both the opportunity and the ability to tell the LLC members about the availability of workers’ compensation coverage and the requirements to obtain it, and therefore the third factor favors the imposition of a duty.

Regarding the fourth factor, the court held that an insurance broker for an LLC, who is charged by the LLC to obtain workers’ compensation coverage, has a non-waivable duty to provide notice that such coverage is available to LLC members who actively perform services on behalf of the LLC, but that the coverage is only available if the LLC elects. Furthermore, the court held that because it is foreseeable that the failure to provide such notice may harm an LLC member of their dependents, the duty may extend to the LLC members eligible for workers’ compensation coverage. The court does state that the statute precludes the imposition of liability on broker absent proof of willful, wanton, or grossly negligent act of commission or omission by the broker. The court held that because the trial court’s grant of defendant’s motions was based mostly on its conclusion that defendant owed no duty to the LLC members, they agreed with the Appellate Division that the court erred when it granted the motions.

The court then addressed the trial court’s ruling on proximate cause. The court stated that they disagreed with the trial court’s assessment of the evidence, and a reasonable juror could have concluded that all three LLC members wanted to maximize insurance coverage for Christopher, the father of young children whose work was sometimes dangerous. The court further held that in order to award death benefits to Christopher’s dependents, a workers’ compensation judge would have to find that his death resulted from an accident arising out of and in the course of his employment and they disagree with the trial court’s conclusion that plaintiff presented no evidence that Christopher died in a work-related accident and therefore it did not need to reach the question of proximate

cause. The court held that the trial court should have reached the issue whether plaintiff’s proofs on the proximate cause of Christopher’s death were sufficient to warrant denial of defendant’s motions for involuntary dismissal and judgment at trial.

Finally, the court held that because the trial court did not recognize a duty for a broker to provide notice to an LLC member of the availability of workers’ compensation coverage, the trial court did not consider whether defendant caused damage by willful, wanton, or grossly negligent act of commission or omission, and the court remands the matter to the trial court for a determination of plaintiff’s claims under the willful, wanton, or grossly negligent standard. The court affirmed as modified the judgment of the Appellate Division and remanded the matter to the trial court for further proceeding in accordance with the opinion.

Remanded.

AWARD OF FEES

Garzon v. Morris County Golf Club

Superior Court of New Jersey, Appellate Division No. A-1100-21; 2022 WL 17882435

Decided: 12/23/2022

Background:

Petitioner, Garzon, worked for the Club for 3 years, preparing and serving food. On December 15, 2016, petitioner tripped over a box in the kitchen, injuring her neck, back, and left hand. The Club provided her with temporary disability benefits from the day after the accident to December 29, 2016, when she went on a two-week vacation to Colombia. The Club resumed payments as of January 25, 2017. The adjuster for the Club’s insurance carrier questioned petitioner’s doctor on how he could have extended her disability when she had left the country, thereby delaying her treatment. The doctor responded that her vacation had no bearing on her care or his recommendations, noting that the Club was closed and unable to offer her light duty work. The adjuster subsequently advised petitioner she could no longer treat with that doctor and had to seek treatment from a different medical practice.

In February 2017, petitioner filed a claim petition. The Club’s answer denied that her injuries had arisen out of the course and scope of her employment, as well as the nature, extent, and permanency of her injuries. Petitioner then filed a motion to compel the Club to pay her temporary compensation and medical treatment. A hearing was held in March 2017, after the end of the first day, the parties resolved the issues in petitioner’s motion and agreed the Club would pay temporary disability benefits for the period of December 29, 2016 through January 24, 2017, and would continue to authorize treatment. This was approved and petitioner was paid $1,880.84.

Petitioner’s treating physician later imposed permanent work restrictions, which caused the Club to stop the temporary disability benefits. However, after a December 2018 conference before a new judge, the Club agreed to reinstate petitioner’s benefits. The Club did not immediately restore the benefits, and in January 2019, petitioner moved to enforce the order to reinstate the payments. The Club did resume making temporary disability payments.

The trial began in August 2021 to determine the nature and extent of petitioner’s disability. Affidavits were submitted by both sides regarding counsel fees, and in October 2021, the judge issued an order approving settlement of the permanency issue and granting a permanent disability award of $164,577. The judge also granted counsel fees of $32,915, equal to 20% of the award, and assessed the entire fee against the Club. In connection with the 2017 motion to compel, the judge held that petitioner was entitled to a penalty for the withholding of the temporary benefits. Instead of basing the 25% penalty on the $1,880.84, the amount withheld, the judge assumed the petitioner had not been paid for four full weeks, and awarded a penalty on that amount, or $548.58. The

judge also approximated the total paid in temporary and medical benefits to be about

$390,000 and awarded petitioner 20% of that amount in counsel fees for the motion to compel, which is $78,000.

Regarding the 2019 motion to enforce, the judge asserted a penalty equal to 25% of the amount of the $5,564.17 of withheld benefits, or $1,391.04, and awarded $12,500 in counsel fees, which was the 25 hours petitioner’s counsel asserted he had worked multiplied by counsel’s suggested hourly rate of $500. The judge also assessed an additional penalty of $5,000 to be paid into the Second Injury Fund.

The Club appealed, arguing that the counsel fee awards were excessive, arbitrary, and abuses of discretion.

Holding:

The court held that the judge’s first step when determining a reasonable amount for attorney’s fees is determining the “lodestar” which is the number of hours reasonably expended multiplied by a reasonable hourly rate. In awarding petitioner attorney fees that were 20% of the permanent disability award, the compensation judge failed to make a full analysis of the fee submission and did not engage in a reasonableness analysis.

Therefore, the attorney fee award of $32,915 in connection with the permanency award is reversed and vacated.

The judge made the same error when calculating the fee award for the 2017 motion to compel. He calculated the 20% math and did not consider what fees were actually incurred in bringing the motion and if they were reasonable. Therefore, the $78,000 fee award for the motion to compel is reversed and vacated.

Regarding the 2019 motion to enforce, the judge issued a fee award based on petitioner’s counsel’s suggested hourly rate and total numbers of hours worked. The document stated that counsel spent a total of 25 hours of work performed in 2017, 2018, and 2019, so in awarding a fee for the 2019 motion based on all 25 hours, the judge was not awarding reasonable legal fees to enforce the order, and therefore the $12,500 fee award for the motion to enforce is reversed and vacated.

Reversed and Remanded.

4859-2012-8584, v. 1

CASE SUMMARIES 10/28/2022 to 11/30/2022

Dec 19, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

10/28/2022 – 11/30/2022

EXPERT TESTIMONY – COMPETENCE

Great Arrow Builders v. Barry Shemenski (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided October 28, 2022

Issue:

Whether claimant’s expert’s opinion on causation was incompetent because it was based on an inaccurate and incomplete medical history?

Background:

Employer hired Claimant as a union laborer who assisted carpenters working with concrete. Claimant began having neck pain, visited his primary care physician, and started taking pain medication. Claimant then developed severe hip pain, which he believed was from walking on the large rocks. Claimant again visited his primary care physician, who diagnosed back pain. Claimant filed a claim petition. The WCJ credited the testimony of Claimant and claimant’s expert. The WCJ acknowledged that Claimant was a poor historian of his prior treatment history. The WCJ granted Claimant’s petition, and Employer appealed to the Board. The Board acknowledged that claimant’s expert was not familiar with the entire breadth of Claimant’s extensive medical history, but noted that claimant’s expert explained that this history did not affect his opinions.

Holding:

The WCJ is the fact-finder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence. Here claimant’s expert reviewed Claimant’s various medical records and did not base his expert opinion solely on Claimant’s reported medical history. Employer’s argument goes to the weight of the testimony and not its competency. The WCJ credited claimant’s expert’s and Claimant’s testimony that Claimant’s back injury was a work-related injury. This is the prerogative of the fact-finder. Because there is substantial evidence of record supporting the WCJ’s findings, and because Claimant is entitled to the benefit of all favorable inferences drawn from the evidence, the court agreed with the Board that the WCJ’s findings are neither arbitrary nor capricious, and declined to reweigh the evidence or disturb the WCJ’s credibility determinations.

Affirmed.

IMPAIRMENT RATING EVALUATIONS

Donna Kilgallon v. The Village at Palmerton & Laundry Owners Mutual (WCAB)

Commonwealth Court of Pennsylvania – Unpublished. en banc, Memorandum Opinion

Decided: November 21, 2022

Issue:

Whether claimant met her burden on a Reinstatement from an IRE modification, and is her current petition barred by Res Judicata?

Background:

Claimant sustained a disabling work-related injury on March 3, 2007 and began receiving temporary total disability (TTD) benefits in the fall of 2007. A 2011 IRE returned an impairment rating of less than 50%, and Claimant’s benefits were modified to temporary partial disability (TPD) status with a 500-week limit as of November 28, 2009, the date when Claimant had reached 104 weeks of TTD since her injury. After Protz II, Claimant filed petitions in 2017 seeking reinstatement of her TTD status. The WCJ issued an October 27, 2017, decision granting Claimant’s petitions and reinstating her TTD benefits as of December 16, 2009. In June 2018, during the pendency of Employer’s appeal to the Board, the Court issued the Whitfield Decision. The General Assembly also passed Act 111 of 2018. The Board therefore remanded the matter to the WCJ to reopen the record and address the recent changes in the law. The WCJ, relying on Whitfield, concluded Claimant had not met her burden to show that her injury was ongoing and denied her reinstatement petitions in a June 2019 decision and order. The WCJ also concluded that Act 111 was not relevant as the modification of Claimant’s benefits had taken place under former Section 306(a.2) of the Act. Claimant appealed. While the foregoing litigation was active, Claimant filed the present reinstatement, review, and penalty petitions on October 14, 2020. The petitions, which contain identical wording, assert that as of September 30, 2020, Employer wrongfully stopped Claimant’s benefits on the basis of former Section 306(a.2) of the Act, which was repealed after being found unconstitutional in Protz II. Counsel for Claimant acknowledged that the gist of the current petitions is that Whitfield was wrongly decided. In a May 5, 2021, decision and order, the WCJ restated this Court’s determination in Whitfield that in order to have TTD status restored in the post-Protz II context, the claimant must, at the least, testify credibly that her work-related injury continues. The WCJ determined, and the Board affirmed, that Claimant’s arguments concerning Whitfield had been raised and addressed in her appeal based on her 2017 petitions, which concluded with Kilgallon I, and therefore were precluded pursuant to res judicata principles.

Holding:

In order to secure reinstatement of TTD benefits after Protz II, a claimant “must testify that her work-related injury continues, and the WCJ must credit that testimony over any evidence that an employer presents to the contrary.” Claimant asked the Court to rule again on a claim that she had a full and fair opportunity to (and did) litigate in 2020-21. It was not clear why Claimant decided to relitigate these issues with new petitions in October 2020 when her previous litigation on similar petitions were still active, but her failure to testify that her injury is ongoing, both then and now, dictates the same unsuccessful outcome here on the merits.

Affirmed.

Sherri Corsaro v. Commonwealth of Pennsylvania and Inservco Ins. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decision: November 2, 2022

Issue:

Whether the retroactive application of the IRE process contained in Section 306(a.3) to an injury that occurred before Act 111’s effective date is unconstitutional?

Background:

Claimant was injured during the course and scope of her employment when she slipped and fell on icy pavement and injured her lower back and hips and lacerated her left knee. Employer accepted liability for Claimant’s work injury. In 2020 Employer filed a Petition to Modify, asserting that Claimant’s benefits should be converted from TTD to partial disability based upon an IRE. The WCJ found that Employer had proven that Claimant had a whole-body impairment of zero percent under the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Sixth Edition, Second Printing (Guides). The WCJ modified Claimant’s benefits to partial disability effective the date of the IRE. The Board affirmed the WCJ.

Holding:

Act 111 was not an unconstitutional delegation of legislative authority. No vested right or contractual obligation is involved. An act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events prior to that date. Claimant did not automatically lose anything by the enactment of Act 111. Act 111 simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole[-]body impairment of less than 35%, after receiving 104 weeks of TTD benefits.

Affirmed.

Jacqueline Perillo v. Extended Healthcare Services (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 2, 2022

Issues:

Whether Section 306(a.3) of the Act violates article I, section 11 of the Pennsylvania Constitution, and whether Section 306(a.3) of the Act contains sufficiently specific language to be applied retroactively?

Background:

Claimant suffered an injury in the course of her employment with Employer on October 9, 2003. On May 1, 2019, Claimant underwent an IRE, which returned a 4% impairment rating based on the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. Employer filed a Modification Petition requesting Claimant’s disability status be changed from TTD to TPD as of the date of the IRE. The WCJ granted Employer’s petition and modified Claimant’s status to TPD as of the date of the IRE.

Holding:

Recently, in the published decision of DiPaolo v. UPMC Magee Women’s Hospital (Workers’ Compensation Appeal Board), a panel of the Court rejected a claimant’s argument that Section 306(a.3) of the Act violated article I, section 11 of the Pennsylvania Constitution. For the same reasons outlined therein, the court rejected claimant’s challenges to Section 306(a.3) of the Act.

Affirmed.

William McDonald v. Pennsylvania Turnpike Commission and UPMC Benefit Management Services (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 4, 2022

Issues:

Whether the retroactive application of Act 111 violates the Remedies Clause of the Pennsylvania Constitution and whether the WCJ should have rejected the IRE because Claimant has not received 104 weeks of total disability benefits since Act 111 came into effect?

Background:

Claimant sustained work-related post-traumatic stress disorder. In 2019, Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 20% and that he had reached maximum medical improvement (MMI). The IRE evaluator used the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides). In response, Claimant presented the testimony of a board-certified psychiatrist who opined that Claimant had not reached MMI and that Claimant was incapable of gainful employment, but Claimant’s expert also conceded that he was not certified to perform an IRE. The WCJ concluded that Employer established that Claimant had reached MMI and had a whole-body impairment of 20% and, therefore, granted Employer’s petition, modifying Claimant’s benefits to partial disability status as of the date of the IRE. The Board affirmed.

Holding:

Act 111 does not deprive claimants of a vested right but simply provides employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole-body impairment of less than 35%, after receiving 104 weeks of total temporary disability benefits. The employer credit provision was explicitly given retroactive effect by the General Assembly.

Affirmed.

Choya Force v. Commonwealth of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 10, 2022

Issue:

Whether Act 111 can be retroactively applied to the claimant’s injury?

Background:

Claimant suffered a work-related injury to her back and received total disability benefits. Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 14%. Claimant indicated she was challenging only the applicability of Act 111 because her injury predated the Act. The WCJ granted Employer’s modification petition, reasoning that Employer had proven that Claimant had a 14% whole body impairment, and therefore Claimant should receive partial disability benefits. Claimant appealed to the Board, which affirmed.

Holding:

Claimant sustained her work-related injury before the passage of Act 111. Based upon established precedent, the Board’s application of Act 111 in modifying Claimant’s benefits to partial disability status did not violate the Remedies Clause found in article I, section 11 of the Pennsylvania Constitution because Claimant does not have a vested right to workers’ compensation benefits.

Affirmed.

Benedict J. Doe v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided November 17, 2022

Issues:

Whether Act 111 can be retroactively applied to injuries that occurred before the date when Act 111 became effective and whether Act 111 is an unconstitutional delegation of the General Assembly’s legislative authority?

Background:

Claimant sustained injuries to his hands and face resulting from an electric shock which occurred in the course of his employment. In 2021, Employer submitted a petition to modify Claimant’s benefits from TTD to partial, based on an IRE. That examination, conducted in accordance with the 6th edition of the AMA Guides, assigned Claimant a whole body impairment rating of 19%. The WCJ granted the modification petition and changed Claimant’s benefits to partial status as of the date of the IRE. The Board affirmed the WCJ.

Holding:

The Court noted that it has already considered and rejected the claimant’s arguments. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Further, there is no delegation to the AMA in Section 306(a.3). It does not adopt, sight unseen, future standards or editions of the AMA Guidelines, without guidance by the General Assembly as to the basic policy decisions and standards to restrain the discretion of the entity setting those standards.

Affirmed.

Paul Dick v. Royal Flush Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 18, 2022

Issues:

Whether Act 111 is unconstitutional on its face and can be applied retroactively?

Background:

Claimant sustained injuries to his left femur, tibia, fibula, and kneecap as a result of a motor vehicle collision that occurred in the course of his employment. Employer recognized the injuries via a Notice of Temporary Compensation Payable (NTCP). Employer submitted a modification petition based on the results of an IRE. The examination, which was performed in accordance with the Sixth Edition of the AMA Guides, assigned Claimant a whole body impairment rating of 26%. The WCJ granted the modification petition and changed Claimant’s benefit status from total to partial, effective the date of the IRE.

Holding:

The Court noted that it has already considered and rejected the claimant’s arguments. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Further, there is no delegation to the AMA in Section 306(a.3). It does not adopt, sight unseen, future standards or editions of the AMA Guidelines, without guidance by the General Assembly as to the basic policy decisions and standards to restrain the discretion of the entity setting those standards.

Affirmed.

Jeanie Ellwood v. Pocono Medical Center and PMA Management Corp. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 29, 2022

Issues:

Whether Act 111 can be constitutionally applied to workers whose injuries occurred before the effective date of Act 111 and whether Act 111 contains sufficiently specific language to make the law retroactive?

Background:

Claimant sustained a work-related injury. In 2019, Claimant underwent an IRE, provided for in Section 306(a.3) of the WC Act, which resulted in a whole person impairment rating of 13%. Employer filed a Modification Petition, seeking to modify Claimant’s disability status from total to partial based upon the IRE results. The WCJ granted the Modification Petition. The Board affirmed.

Holding:

Act 111 simply provides employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole-body impairment of less than 35%, after receiving 104 weeks of temporary total disability benefits. That the General Assembly used specific language to give retroactive effect to certain carefully selected individual provisions does not make the entirety of Act 111 retroactive as the amendment lacks clear language to that effect. There is no provision in Act 111 which specifically or implicitly provides for an IRE performed prior to Section 306(a.3) of the Act’s enactment to be validated afterward. The 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Accordingly, Claimant’s argument that Act 111 does not contain sufficiently specific language to make the law retroactive lacks merit.

Affirmed.

MENTAL INJURIES

Berks Area Regional Transportation Authority v. Lena Katzenmoyer (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 8, 2022

Issue:

Whether incidents to which the claimant was exposed were abnormal working conditions?

Background:

Claimant worked as a bus driver for Employer since 2014. On October 19, 2018, Claimant was driving when she heard and saw shots being fired in her rear-view mirror (October incident). Claimant saw people running up the sidewalk and screaming. Her bus was struck twice by bullets. Two months later, on December 19, 2018, there was a second incident involving Claimant’s bus being shot at and struck by bullets (December incident). Claimant was driving when a big window on the passenger side of the bus was “shot out.” The driver’s side windshield above Claimant’s head was also struck with bullets. Claimant filed two claim petitions, one alleging psychological injury from the October incident, and one alleging psychological injury from the December incident, both of which Employer denied. The WCJ found, and the Board affirmed, that Claimant met her burden of establishing that she had a psychological condition caused by her employment through the unequivocal medical testimony and that Claimant met her burden of proving that her psychological injury was a result of abnormal working conditions, as required by the applicable mental-mental standard. While her manager testified that drivers have a short classroom training on various projectiles hitting the bus and vandalism, Claimant’s situation was far more severe than merely vandalism or rocks being thrown at the bus.

Holding:

Although each individual event could alone rise to the level of an abnormal working condition, the combination of the two within two months of each other even more clearly establishes abnormal working conditions. Although a city bus driver could potentially experience events such as vandalism or projectiles being thrown at the bus, these two events both were far more severe and were highly unusual and traumatic, far outside what bus drivers would be expected to experience at their jobs. Employer does not dispute that Claimant’s bus was shot at and struck by bullets, or that Claimant heard and saw multiple gunshots take place behind her bus during the October incident. The fact that Claimant did not learn until the next day that a person was killed in the incident, or that she did not view the bullet holes in her bus, does not render the Board’s description inaccurate. Mental injuries as a result of abnormal working conditions present a mixed question of law and fact and the question of whether the events may be considered abnormal must be considered in the context of specific employment.

There was no error in the WCJ’s or Board’s conclusion that these two incidents, either separately or together, constituted abnormal working conditions, in the context of Claimant’s job as a bus driver.

Affirmed.

Amy Kratz v. Commonwealth of Pennsylvania, Department of Corrections (WCAB)

Commonwealth Court of Pennsylvania – Unpublished, en banc, Memorandum Opinion

Decided: November 30, 2022

Issues:

Whether Claimant presented evidence of a physical/mental injury that was sufficient to meet her burden of proofe using the physical/mental standard? Whether, the Court should adopt a new standard under the Workers’ Compensation Act for a sexual assault/mental injury?

Background:

Claimant was working as a Registered Nurse for the Department of Corrections (Employer). One day, she was completing an assessment of an inmate, who requested a triage after stating he was not feeling well. While he was taking cough medicine and she was providing verbal instructions and education, he reached over and grabbed between her legs. She then used both hands to push him away. Claimant reported that she had some swelling and tenderness of her genital area for about two or three days afterwards. A few days later, Claimant went to an urgent care office, complaining of anxiety. During her regularly scheduled OB-GYN visit, Claimant was examined by a physician’s assistant. She did not treat with any other providers for her physical symptoms. With regard to her psychological or mental symptoms following the incident, Claimant initially saw her family practitioner who prescribed Xanax, Lexapro, and Trazodone. She then saw a psychiatrist who changed her prescriptions to Effexor, Neurontin and Minipress. She also began to visit a psychologist, for therapy. Claimant filed a claim petition describing the work injury as “swelling and tenderness of genital area, anxiety, depression and sleep disturbance.” The WCJ denied and dismissed Claimant’s claim petition, concluding that Claimant did not sustain a physical/mental injury as a result of the incident. The Board affirmed.

Holding:

Substantial evidence supports the WCJ’s finding Claimant did not establish that her mental injury resulted from a work-related, triggering physical stimulus. First, regarding the physical prong of the physical/mental claim, Claimant argues that she was the victim of a sexual assault, and that sexual assault should be considered a physical stimulus even absent a physical injury. The Court did not need to decide this issue instantly because Claimant failed to meet the second prong of the physical/mental test. Based on the credited evidence, the WCJ found that Claimant did not prove that she suffered a mental injury as the result of the incident. The WCJ credited the opinions of employer’s expert as more credible and persuasive and, based on that evidence, concluded that Claimant did not meet the burden of proof for purposes of establishing that she suffered a compensable mental injury using the physical/mental standard. A WCJ’s credibility determinations are due substantial deference, and such determinations may only be overturned if they are arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render them irrational

Affirmed.

JUDICIAL DISCRETION

Joseph Marvelli v. US Foods, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 2, 2022

Issues:

Whether substantial evidence supports the WCJ’s finding that the workplace incident was not the cause of Claimant’s lower back injury? Whether the mechanism of the work injury and the fact testimony establish an obvious causal connection between the injury and the lower back and leg symptoms?

Background:

Claimant worked for Employer, a foodservice distributor, as a territory sales manager. He sustained an injury while taking items for a delivery out of the back seat of his truck. Employer accepted liability for the injury through a medical-only Notice of Compensation Payable (NCP), which described the injury as a strain or tear of the shoulder. Claimant filed review petitions which alleged injuries to the neck, shoulder, and back, including lumbar radiculopathy, as a result of his work-related accident. Employer filed a review petition of its own, requesting that the injury description be amended to refer to “a cervical strain” rather than a shoulder strain. The WCJ denied Claimant’s Petitions and granted Employer’s Review Petition. The WCJ explained that, to the extent that the two medical experts disagree, he found employer’s expert more credible due to claimant’s expert’s failure to examine previous treatment records before forming his opinion. Claimant appealed to the Board, which remanded due to an error in the language of the WCJ’s Order. On remand, the WCJ corrected the error and readopted and reissued all the factual findings and legal conclusions in his earlier opinion. The Board affirmed.

Holding:

When the connection between the injury and the alleged work-related cause is not obvious, it is necessary to establish the cause by unequivocal medical evidence. By deeming a witness’s testimony generally credible, the WCJ does not commit himself to a wholesale adoption of every statement made by that witness. Credibility and persuasiveness are not identical qualities. A WCJ may find a witness completely credible (that is, stating the truth as he or she believes it) without being persuasive (that is, convincing in support of a particular conclusion). Since the inference of a causal connection required unequivocal medical testimony, the WCJ properly looked to the medical experts to form his conclusion. The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight. Unless made arbitrarily or capriciously, the WCJ’s credibility determinations will be upheld on appeal. Since the WCJ’s credibility findings in the instant matter are well supported by the record, there is no reason to regard them as either arbitrary or capricious.

Affirmed.

Olivia Brooks v. Brown’s Super Stores (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 4, 2022

Issue:

Whether the WCJ erred in finding that claimant did not suffer an injury, despite the video, in light of the medical-only NCP, MRI results, and the IME findings of employer’s expert?

Background:

A box fell from a shelf onto Claimant at work (the Incident). The Incident and Claimant’s behavior in the 20 minutes thereafter were captured by Employer’s surveillance footage (Video). Employer issued a Notice of Temporary Compensation Payable (NTCP) accepting the injury as a cervical and lumbar strain and timely filed a medical-only Notice of Compensation Payable (NCP). Thereafter, Claimant filed a claim petition for temporary total disability benefits, alleging injuries to her neck, back, and head. Employer denied the allegations of injury or disability but stated that if an injury did occur, it has since ceased, and was not work-related. Claimant underwent an independent medical examination (IME) which found that she could return to her pre-Incident work because she had fully recovered from her Incident-related injuries of a head contusion and aggravation of a cervical and lumbar sprain/strain. Employer presented the Video, and depositions from its medical expert. Employer’s expert testified that the immense force needed to herniate disks as revealed by an MRI is not depicted on Video. The Video did not show any disorientation or serious injury to Claimant. The WCJ found that Claimant was not injured from the Incident and, thus, failed to establish her burden of proving disability under the Act. The WCJ deemed Claimant’s testimony was totally inconsistent with the Video and that she had exaggerated her injury. Accordingly, the WCJ denied Claimant’s petition for disability benefits. The Board affirmed the WCJ’s decision on appeal.

Holding:

Substantial evidence supports the WCJ’s determination that Claimant did not sustain a compensable injury from the Incident and, thus, is not entitled to disability benefits under the Act. To the extent Claimant disputes the WCJ’s findings, issues of credibility and evidentiary weight are within the sole discretion of the WCJ. An employer’s issuance of a medical-only NCP stops temporary compensation and prevents an automatic NCP conversion. By issuing a medical-only NCP, an employer acknowledges injury and accepts liability for associated medical payments, but nothing more. A claimant still maintains the burden of proving a disabling work injury by competent medical evidence. Further, an employer may successfully terminate a claimant’s benefits where its medical expert recognizes the work injury as described in the NCP and opines that the claimant has fully recovered from that injury. Therefore, the WCJ’s “no injury” finding was not in error but rather is supported by substantial evidence. Finally, the weight the WCJ assigned to the Video is not reviewable by this Court on appeal.

Affirmed.

John W. Pague v. Capital Area Transit Authority (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: November 18, 2022

Issue:

Whether the claimant preserved the issue of whether the WCJ’s findings and credibility determinations are supported by substantial evidence?

Background:

On November 6, 2019, Claimant hit a large pothole while driving a bus in the course of his employment with the Capital Area Transit Authority (Employer). Following this incident, Claimant filed a claim petition, seeking total disability benefits. The WCJ circulated a decision denying Claimant’s claim and penalty petitions. Claimant, pro se, filed an appeal with the Board, stating that he wished to preserve his right to appeal while seeking an attorney to represent him. Regarding the grounds for his appeal, Claimant simply argued that there are “too many errors of the WCJ’s decisions in this work injury case.” The Board dismissed Claimant’s appeal on the basis that it failed to raise any issues with specificity. Even had Claimant preserved any issues for appeal, the Board concluded that the WCJ’s decision was supported by substantial, competent evidence, as the WCJ rejected Claimant’s medical evidence and Claimant was unable to meet his burden of establishing that he suffered a work-related injury.

Holding:

Where a claimant has failed to raise an issue in any manner before the Board, that issue is waived. Claimant’s LIBC-25/26 merely alleges that “there are too many errors of the WCJ’s decisions in this work injury case.” C.R., Item No. 9. Additionally, Claimant stated that he “wish[es] to preserve [his] right to appeal this case while seeking an attorney to represent [him] in this matter[,]” Claimant’s general allegations of error on the WCJ’s part, and his desire to preserve the right to appeal while seeking legal representation, do not absolve Claimant of the obligation to comply with the requirements of Section 111.11(a)(2). Accordingly, the Board did not err in dismissing Claimant’s appeal based on his failure to raise any issues with specificity. Further, Claimant waived the issues raised in his petition for review, as those issues were not raised before the Board. Even if Claimant had challenged those findings in his appeal, Claimant failed to support the arguments in his brief with pertinent legal authority, as required by Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure. The Court will not consider the merits of an issue that is not properly raised and developed in a brief.

Affirmed.

COURSE AND SCOPE STANDARD

Barbara Wormley v. Air Wisconsin Airlines (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: November 22, 2022

Issue:

Whether the WCJ and the Board erred in concluding that claimant’s injury did not occur in the course and scope of her employment?

Background:

Claimant works as a flight attendant for Air Wisconsin Airlines (Employer). Claimant fell on a SEPTA train platform attempting to get on a train on her way to work. Claimant filed a claim petition alleging a work injury. The WCJ found that Claimant was not a traveling employee, explaining that she had a fixed place of employment at Chicago O’Hare Airport. The WCJ found that when Claimant was injured, she was commuting to work and was not on Employer’s premises. Claimant was responsible for getting herself to the airport to get a flight to Chicago O’Hare. Employer did not provide transportation for its employees to and from work; it only provided general flight privileges from airport to airport. Therefore, the WCJ concluded that Claimant did not meet her burden of proving that she was in the course of employment when she was injured at the train station and denied her claim petition. The Board affirmed. On Appeal, claimant argues that her injury was compensable because she was on her way to work, in uniform, and traveling by train to the Philadelphia Airport to fly to Chicago O’Hare Airport, which was a reasonable way for her to access Employer’s premises.

Holding:

Claimant was not engaged in furthering the activities of Employer when she was injured. The injury occurred the day before she was scheduled to work out of Chicago O’Hare. Additionally, the train station is not part of its premises because it did not issue any directive or exercise control over the mode of its employees’ transportation to and from work. Claimant does not assert that she was furthering Employer’s business when she was injured. Rather, Claimant argues that she was injured on Employer’s premises. However, Employer does not own, maintain, or control the train or the train platform, and the train is not a part of Employer’s business, Claimant did not show an injury on its premises. Whether the injury occurred on the employer’s “premises” under Section 301(c)(1) of the Act turns on whether the site of the accident is so connected with the employer’s business as to form an integral part thereof. The critical factor is not the employer’s title to or control over the area, but rather the fact that the employer had caused the area to be used by its employees in performance of their assigned tasks. Claimant fell on a train platform. The train and its platform were not a place where Employer’s “business or affairs are being carried on,” or where Claimant’s “presence thereon was required by the nature of her employment.” Claimant presented no evidence that her presence on the train was required by the nature of her employment. Claimant was not reimbursed for any travel and could have chosen any means to get to the Philadelphia Airport, or, for that matter, to Chicago. The trains were not provided for airport employees and Claimant was not entering or exiting her workplace within a reasonable time before or after her shift.

Affirmed.

WORKERS’ COMPENSATION INSURANCE COVERAGE

Connect A Care Network, LLC v. SWIF and Elaine Davis (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: November 17, 2022

Issue:

Whether Employer had an effective workers’ compensation policy with SWIF on the date of Claimant’s injury?

Background:

Claimant’s initial petition alleged that she sustained extensive injuries when she was assaulted by a client of Employer and sought total disability benefits. Subsequently, Claimant filed an uninsured claim petition against Employer and the Uninsured Employers Guaranty Fund (UEGF). Thereafter, Claimant filed a joinder petition against SWIF contending that it was Employer’s workers’ compensation carrier on the date of the injury. SWIF filed a joinder petition against UPMC Work Partners alleging that it provided coverage for Employer on the date of the injury. SWIF presented testimony that Employer did not have a workers’ compensation policy in effect with SWIF on the date of the injury, the policy having been cancelled by Employer prior to the injury. Employer was in the process, but had yet to finalize, the application for a new policy on the date of the injury. The WCJ ultimately found that Employer did not have workers’ compensation coverage through either SWIF or UPMC Work Partners. The Board affirmed the WCJ’s conclusion that Employer did not have a policy with SWIF in effect on the date of the injury.

Holding:

It is well established that a WCJ has jurisdiction to determine questions of insurance coverage. This jurisdiction includes authority to determine whether or not a policy has been cancelled. The WCJ is the finder of fact and is free to accept or reject, in whole or in part, the testimony of any witness. There is substantial, competent evidence in the record to support the WCJ’s findings, and the Court does not have the authority to review the WCJ’s well-reasoned credibility determinations.

Affirmed.

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

10/25/2022-11/30/2022

TIMELINESS OF APPEAL

Orellana v. Zaklikovsky et al.

Superior Court of New Jersey, Appellate Division

No. A-0780-21; 2022 WL 16595920

Decided: 10/31/2022

Background:

Petitioner was employed by Chabad as a domestic helper for the Zaklikovskys. On August 23, 2017, petitioner was injured at the Zaklikovsky residence in the course of her employment, causing a left knee meniscal tear and lumbar and cervical herniations. Petitioner filed a workers’ compensation petition against Chabad, but they did not maintain workers’ compensation insurance at the time, so she then amended her petition to assert claims against the Zaklikovskys. On April 16, 2018, a judge of compensation entered an order against Chabad, awarding petitioner temporary disability benefits and payment of medical treatment. Chabad appealed, and on October 9, 2019 the court affirmed, and found that respondents did not defend the motion, and therefore relinquished the right to control petitioner’s treatment.

On May 19, 2020, the judge of compensation awarded petitioner both temporary and permanent disability benefits. The judge also placed the case on the discontinuance list, closing the case temporarily until a new judge was assigned. Respondents did not appeal the award. On May 8, 2021, petitioner filed a motion to reinstate the matter from the discontinuance list as to the Uninsured Employers Fund (UEF).

On October 5, 2021, the compensation court granted petitioner’s request to reinstate the case, but the judge immediately closed the case, thereby dismissing petitioner’s request for additional compensation without prejudice and reaffirming the judgments of April 16, 2018 and May 19, 2020. At not time during the October 5 hearing did the Respondents challenge the May 19, 2020 award of permanent disability benefits.

Holding:

The court stated that “appeals from final judgments of courts, final judgments or orders of judges sitting as statutory agents, and final judgments of the [DWC] shall be filed within 45 days of their entry.” The court held that both the April 16, 2018 and May 19, 2020 Orders were final judgments of the DWC and therefore Respondents’ appeal is time-barred. Respondents did timely appeal the April 16, 2018 order awarding temporary disability benefits, which the court affirmed. The court stated that there is no reason for continued discussion of that Order, and Respondent’s appeal of the May 19, 2020 order istime-barred, as the time to appeal that Order expired on June 29, 2020. Finally, the court notes that at no point in the underlying proceedings did Respondents raise an objection or move to vacate the May 2020 award, and the challenge is raised for the first time in the instant appeal.

Affirmed.

CAUSATION

Pace v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-2685-20; 2022 WL 16709530

Decided: 11/04/2022

Background:

Pace was employed as a maintenance janitor for the Lower Township Board of Education. Prior to August 2017, he never had any complaints or treatment related to his neck. On August 21, 2017, Pace fell into an uncovered manhole on school property. Afterwards, he reported neck and back pain. Pace treated with his workers’ compensation doctor, Dr. Glass, who eventually ordered cervical and lumbar MRIs. The MRI of Pace’s neck revealed herniated discs at four levels, requiring immediate neck surgery instead of the lumbar surgery originally proposed. Dr. Glass performed a three-level cervical fusion of Pace on August 1, 2018, after which Pace was unable to lift more than 10 pounds, causing him to be unable to return to work.

On October 10, 2018, Pace applied to the Board for accidental disability retirement benefits. The Board denied Pace’s application, finding his disability was not a direct result of the August 2017 incident, but was the result of pre-existing disease alone, or that was aggravated or accelerated by the incident. Pace appealed, and the matter was transferred to the Office of Administrative Law. Dr. David Weiss testified on behalf of Pace, and Dr. Arnold Berman testified on behalf of the Board. On February 8, 2021, the ALJ determined Pace was entitled to accidental disability retirement benefits. She further concluded that Dr. Berman’s findings were not substantially supported by the record, and that Dr. Weiss was more credible.

On March 17, 2021, the Board rejected the ALJ’s determination, and found that “Pace failed to meet his burden of proof because: 1) he had neck issues prior to the incident; 2) both experts agreed that Mr. Pace had aggravated pre-existing conditions and a cervical surgery that combined to cause his disability; 3) the ALJ applied a ‘but for’ standard, which Dr. Weiss disagreed with, that is not applicable and relied on a hearsay document created by a physician not subject to direct or cross examination, which should be given zero weight in rendering a decision; and 4) Dr. Berman, the better credentialed medical expert, should be given more weight because he reliably explained how the mechanism of injury could not have caused the seen herniations.” Pace appealed the Board’s denial.

Holding:

Accidental disability retirement benefits require that an employee show that he is “permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties.” The court refers to the Gerba case, which held that an applicant for accidental disability retirement benefits only needs to show a traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability. (Gerba v. Board of Trustees, Public Employees’ Retirement System, 83 N.J. 174 (1980)).

The court stated that based on the review of the record, they are satisfied that the Board’s decision was arbitrary, capricious, and untethered to the credible evidence in the record before the ALJ. The court agrees with the ALJ that Pace’s cervical fusion was substantially caused by the August 2017 incident. The court also noted that there is no evidence in the record that Pace had any injury or treatment to his neck prior to August 2017, and there is nothing in the record to support the conclusion that Pace received medical treatment for his neck prior to the August 2017 work incident, and therefore he is entitled to an award of accidental disability retirement benefits.

Reversed.

Kim v. Board of Trustees, Police and Firemen’s Retirement System

Superior Court of New Jersey, Appellate Division

No. A-0776-20; 2022 WL 16825484

Decided: 11/09/2022

Background:

On May 11, 2011, petitioner filed an application for accidental disability retirement benefits based on a July 18, 2008 incident. Kim alleged he had orthopedic, psychologic, and psychiatric residuals of injury to his left hand, anxiety, and depression. On July 18, 2008 he alleged he shot a crime suspect and since had anxiety, depression, loss of sleep and appetite, and adjustment disorder.

During a May 2012 meeting, the Board found petitioner was totally and permanently disabled from his duties as a result of the July 18, 2008 incident and granted ordinary disability retirement benefits. Accidental disability retirement benefits were denied because the disability did not result from “direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury, and or a similarly serious threat to the physical integrity of the member or another person.” Kim appealed the decision. The Board reconsidered in December 2018, and again denied his application for accidental disability retirement benefits. The Board also reversed the finding that his disability was a direct result of the July 2008 incident, and determined it was multicausal.

An ALJ had a hearing in July 2019. Petitioner, petitioner’s expert Dr. Puig, and the Board’s expert Dr. LoPreto testified. The focus of the hearing was whether the 2008 incident was not objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury and if that resulted from direct personal experience of a terrifying or horror-inducing event. Petitioner stated that the 2008 incident occurred when he heard shuffling of feet at a call, and saw a person point a gun at him, causing him to fire his weapon. After a short pursuit, petitioner found a man lying on the ground, and believed he had shot and killed him, but in fact, the person was unharmed, and no gun was found. Petitioner continued to work for the Camden City Police Department until 2011. Petitioner also testified that he experienced workplace harassment in connection with his Korean heritage.

Dr. Puig first saw petitioner in 2008, diagnosed him with PTSD after seeing him once, and opined he could not return to work. Dr. Puig next saw him in 2017, when he opined that petitioner was already chronically traumatized by the harassment, and the July 2008 incident was the catalyst that brought the PTSD symptomatology into chaos from which he has not recovered. Dr. LoPreto evaluated petitioner on January 18, 2012, and initially found petitioner to be totally and permanently disabled and this was a direct result of the July 2008 incident and not associated with or accelerated by a pre-existing condition. He did feel that a more appropriate diagnosis was acute stress disorder and not PTSD. After revieing Dr. Puig’s 2018 report, Dr. LoPreto issued an addendum, opining that no workplace harassment had been disclosed to him, and he could no longer attribute petitioner’s disability significantly and substantially to the incident in July 2008. Reports

In September 2020, the ALJ found that Dr. LoPreto was more credible than that of Dr. Puig, and that petitioner was not entitled to accidental disability retirement benefits, and affirmed the Board’s denial. Petitioner filed exceptions with the Board, and the Board adopted the ALJ’s decision denying his application for accidental disability retirement benefits. Petitioner appealed.

28

Holding:

The court cites the Patterson case, which determined that the standard governing a claim for accidental disability retirement benefits is premised on a permanent mental disability resulting from a mental stressor without any physical impact. The court also cites Richardson, which held that the disability must have resulted from “direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person,” and limited accidental disability to stressors sufficient to inflict a disabling injury when experienced by a reasonable person in similar circumstances of Drs. Kelly and Glass were also submitted, neither of which mentioned workplace harassment.

The court held that the credibility determinations of the ALJ plus the undisputed facts support the ALJ’s determination that the petitioner did not meet the Patterson threshold because he did not prove that the July 2008 incident was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury. The court also held that petitioner failed to establish the Richardson standard that his disability was the direct result of a traumatic event. Therefore, the court stated that there was nothing arbitrary, capricious, or unreasonable about the Board’s adoption of the ALJ’s decision.

Affirmed.

SUMMARY JUDGMENT

Herrera v. Shoprite of Northvale, Inserra Supermarkets, Inc.

Superior Court of New Jersey, Appellate Division

No. A-1136-21; 2022 WL 16825972

Decided: 11/09/2022

Background:

Plaintiff stated he was employed by defendant for many years and suffered an injury at work. He claimed he notified a supervisor about the injury, who told him not to file a workers’ compensation claim and he would be terminated if he did not comply. Defendant fired plaintiff a few years later. Plaintiff alleged that defendant: 1) wrongfully terminated him; 2) subjected him to a hostile work environment in violation of the Law Against Discrimination, 3) discriminated against him based on his age, and 4) caused him emotional distress. Claimant alleged that a supervisor named Daniel Ortiz is the one who threatened to fire him, and his coworkers teased him about his age and made him do difficult tasks to prove he was not old. He also alleged that he was forced to work even though he was injured.

At the close of discovery, defendant filed for summary judgment, and provided documentation concerning plaintiff’s workers’ compensation claim. Defendant stated that after Thanksgiving 2016, plaintiff called out sick for several days, then reported he had injured his shoulder at the store before the holiday. In January 2017, an assistant store manager filed an accident report with NJM, defendant’s workers’ compensation carrier. That month plaintiff submitted a claim for temporary disability benefits. Plaintiff’s treating physician certified that plaintiff’s injury was not work-related. In April 2017, NJM denied coverage of plaintiff’s injury based at least partly on the physician’s certification. The State granted plaintiff’s application for temporary disability benefits.

Plaintiff was out of work between November 2016 and May 7, 2017, at which time plaintiff returned to work and was transferred to the produce department, which was less physically demanding than his prior position. Two years later, plaintiff told several supervisors that he planned to retire, and on his last day, May 31, 2019, his department threw him a retirement celebration. Plaintiff never filed a report regarding harassment to HR. Without producing any evidence, plaintiff opposed defendant’s motion for summary judgment, and in fact only disputed one of defendant’s undisputed facts.

After conducting oral arguments, Judge Harz granted defendant’s motion for summary judgment and dismissed all four counts of plaintiff’s complaint. This appeal followed.

Holding:

The court held that it is satisfied that Judge Harz properly granted summary judgment to defendant, and it affirms her opinion. The court adds that the material facts of the matter are not in dispute: defendant did not object to plaintiff filing a workers’ compensation claim, and in fact filed one for him; NJM denied the claim because plaintiff’s doctor certified he was not injured at work; and defendant helped plaintiff with his application for temporary disability benefits, gave him extended leave, and moved him to a less physically demanding area. Plaintiff was unable to identify any of the employees that he alleged harassed him, and could provide no additional details about their actions.

Affirmed.

CASE SUMMARIES 10/01/2022 to 10/25/2022

Nov 2, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

10/01/2022 – 10/25/2022

EMPLOYMENT RELATIONSHIP

IDI Logistics, Inc. v. Larry Clayton and Uninsured Employers Guarantee Fund (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided October 18, 2022

Issue:

Whether Claimant was Employer’s employee and not an independent contractor? Whether Employer established that it offered Claimant valid light-duty work?

Background:

Claimant filed a claim petition against Employer seeking medical and wage loss benefits for a work-related left wrist injury. Claimant also filed a claim petition against the Uninsured Employers Guaranty Fund (UEGF). The workers’ compensation judge (WCJ) issued an opinion concluding that Claimant had not established employee status. The Board noted that employment status is a question of law reviewable on appeal, albeit based on facts of record, and emphasized Employer’s control in assigning loads to drivers, paying drivers by the mile rather than by the load or job, paying for gas and insurance for its trucks, requiring use of its trucks for its jobs, and forbidding drivers from using its trucks to drive for other companies; the Board also observed that trucking was part of Employer’s regular business. The Board concluded that the independent contractor agreement Claimant signed was not dispositive when considered against the evidence favoring employee status. The Board remanded to the WCJ for determination of the extent and duration of Claimant’s disability.  On remand, the WCJ did not take further evidence other than a stipulation by counsel that Claimant returned to work with a new employer at a higher rate of pay in October 2018.  The WCJ concluded that Employer had not offered Claimant specific light-duty work during his period of disability.  On Employer’s post-remand appeal, the Board affirmed, finding Employer’s offer to pay Claimant for riding along with other drivers lacked the requisite specificity and documentation to warrant a suspension of benefits. The Board reaffirmed its previous conclusion that Claimant was an employee rather than an independent contractor.

Holding:

Under Sections 103 and 104 of the Workers’ Compensation Act (Act), an independent contractor is not entitled to benefits, due to the absence of a master/servant relationship.  Employer and UEGF argue that Claimant did not establish employment status because Claimant failed to show that Employer had the right to control Claimant’s work; therefore, the Board erred in reweighing the evidence and reversing the WCJ.   Many facts weigh in favor of finding employee status. Employer owned and insured the trucks and paid for gas. Claimant did not keep Employer’s trucks at his home when he was not working. He was free to work for other companies but could not use Employer’s trucks to do so. While on the road in Employer’s truck, Claimant would call in to Employer’s dispatcher and receive another assignment; Employer apparently also would call Claimant and offer assignments.  Here Claimant could refuse an assignment. But the ability to refuse an assignment is not dispositive of contractor status.  Also, the company barred its drivers from using its trucks for outside work. Claimant was guaranteed payment for each mile he drove Employer’s truck. Payment by the mile is a variation on payment by the hour, which is the hallmark of an employment relationship. The entire risk here is borne by Employer, who must pay Claimant for each mile he drives regardless of what the customer pays or, even, does not pay Employer.  Employment status is a question of law fully reviewable on appeal. The facts here, viewed reasonably and in the unique context of the trucking industry, sufficiently support an inference that Claimant was an employee.  Further, the WCJ did not err in finding that Employer’s job offer lacked sufficient specificity. Employer’s offer to pay Claimant for riding along with other drivers does not include the date when the offer would take effect or expire, a rate of pay, a schedule, or an assurance that the work would remain within Claimant’s insured capacity. There is no indication that Employer’s offer was in bad faith or deliberately vague, but the WCJ was within his discretionary authority in finding it insufficient to limit or negate an award of benefits.

Affirmed.

Patricia Duty and Debra Miller, Admin. of the Est. of Jennifer Wright v. WCAB (Johnson Controls, Inc., Master Staffing, LLC, Zurich American Ins. Co., and Arch Ins. Co.)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 19, 2022

Issue:

Whether the temporary employment agency or the company to whom an employee was assigned was the employer for purposes of the Workers’ Compensation Act?

Background:

Claimants, on behalf of the two minor children of Decedent, petitioned for review of the order of the Workers’ Compensation Appeal Board affirming the decision and order of the Workers’ Compensation Judge (WCJ), who granted Claimants’ fatal claim petition against Johnson Controls, Inc. (JCI). It was the prevailing Claimants who sought to shift liability for benefits to Master Staffing; JCI had accepted liability for benefits.  Decedent was hired by Master Staffing, a temp agency, which referred her as a potential worker to JCI, a client company manufacturing air-handling equipment.  Claimants filed a fatal claim petition against JCI.  JCI filed a joinder petition alleging that Master Staffing might have been Decedent’s employer.

Holding:

The right to control the performance of work is the overriding factor here.   The WCJ found, based on credible testimony, that JCI instructed Decedent as to how to perform her job duties at its facility; that JCI could and did direct Decedent as to when her shift started, when to take breaks, and which department she would work in on a particular day; that JCI provided the equipment, uniforms, and safety gear that Decedent needed to perform her job duties at its facility; that JCI determined if Decedent was performing the work properly or if any disciplinary issues needed to be addressed; and that Decedent contacted JCI directly if she had to call off work and required a JCI employee’s permission to take off. Master Staffing had no representatives present at the JCI facility and provided no input concerning the Decedent’s day-to-day activities performed there. The Board did not err in affirming the decision of the WCJ with respect to JCI being Decedent’s borrowing employer.  The identity of the insurer is not relevant to the central inquiry of this case, which is who had the right to control the manner of Decedent’s work.  The provision of workers’ compensation coverage may be considered but is not a determinative factor of whether an employee is borrowed.  Note: The Court referred to the Act’s “exclusivity provision,” as the “elephant in the room,” and the driving force behind this case.  Claimants wanted to sue JCI in a third party lawsuit and JCI wanted to avoid such a suit.

Affirmed.

SUMMARY RELIEF

Walter T. Swierbinski v. Uninsured Employers Guaranty Fund

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 20, 2022

Issue:

Whether the Petitioner may obtain mandamus relief by means of an order compelling the Uninsured Employers Guaranty Fund (Fund) to pay Petitioner workers’ compensation benefits awarded by a workers’ compensation judge (WCJ)?

Background:

Petitioner sustained a work injury. Employer did not carry workers’ compensation insurance, and Petitioner filed a claim petition naming the Fund, as well as the employer.  The WCJ directed that the Fund pay wage loss benefits to Petitioner in the amount of $453.33 per week with a credit for payments in lieu of compensation Petitioner received from Employer.  The Fund appealed the WCJ’s decision to the Workers’ Compensation Appeal Board (Board).  The Board denied supersedeas.  Petitioner filed his Petition for Relief (PFR) seeking the Fund’s compliance with the WCJ’s order, alleging that the Fund has failed and refused to comply with the WCJ’s order to pay Petitioner compensation. Petitioner requested judgment in his favor and an order directing that the Fund pay Petitioner’s compensation as awarded by the WCJ.   Subsequent to Petitioner’s filing of the PFR, the Board issued an order reversing the WCJ on the basis that Petitioner’s claim against the Fund was barred by Section 1603(b) of the Act, for failing to notify the Fund within 45 days.

Discussion:

An application for summary relief is evaluated according to the standards for summary judgment.  Petitioner does not have a right to the relief requested, as he cannot meet the requirements for mandamus relief. Specifically, Petitioner has an adequate remedy at law, pursuant to Section 428 of the Act, 77 P.S. § 921, which provides as follows: Whenever the employer shall be in default in compensation payments for thirty days or more, the employee or dependents entitled to compensation thereunder may file a certified copy of the agreement and the order of the department approving the same or of the award or order with the prothonotary of the court of common pleas of any county, and the prothonotary shall enter the entire balance payable under the agreement, award or order to be payable to the employee or his dependents, as a judgment against the employer or insurer liable under such agreement or award.  In the absence of language to the contrary, Section 428 of the Act is applicable to the Fund.

Application Denied.

VIOLATION OF POSITIVE ORDER

Fine Arts Discovery Series, Inc. v. Daniel Critton (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision

Decided: October 20, 2022

Issue:

Whether Claimant violated Employer’s positive work order when he used the rear entrance of the theater, therefore removing him from the course of his employment at the time of his injury?

Background:

Claimant suffered a work injury when he slipped and fell on ice while utilizing the rear entrance of a theater operated by Employer. Employer denied liability for Claimant’s injury on the basis that Claimant violated Employer’s policy against entering the theater through the rear door and therefore Claimant’s injury was not sustained in the course of employment.   The WCJ noted that the affirmative defense of violating a positive work order requires that an employer demonstrate that a policy existed, of which the claimant was aware, and that the claimant’s violation of the policy removed him from the course of employment and concluded that employer failed to demonstrate that Claimant’s use of the rear entrance removed him from the course of his employment. The WCJ disagreed with the employer. The Board affirmed the WCJ.

Holding:

To assert the defense that a claimant was in violation of a positive work order at the time he sustained an injury, the employer must prove that (1) the injury was caused by the claimant’s violation of the order; (2) the claimant actually knew of the order; and (3) the order implicated an activity that was not connected with the claimant’s work duties. An injury sustained in the performance of an act that is connected to a claimant’s work duties is compensable, even if the act itself violates the employer’s positive work order.  Employer had not specified how Claimant’s use of the rear entrance versus the alternate entrance in the front has so removed him from his duties as a security guard that the activity should render him a stranger or trespasser.  One of Employer’s witnesses testified that security personnel are occasionally stationed at the rear entrance of the theater, and Employer presented no evidence that Claimant’s duties as a security guard did not encompass this location. Consequently, it cannot be said that the rear entrance to the theater was a location at which Claimant had no duty to perform and his presence there could be likened to that of a stranger or trespasser. At the time of his injury, Claimant was simply attempting to access the building to begin his work duties. It cannot be said that such an activity is so disconnected from Claimant’s job duties that he was removed from the course of employment when he was injured.

Affirmed.

IMPAIRMENT RATINGS

Saundra Fanning v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided October 6, 2022

Issues:

Whether the WCJ erred in reinstating TTD benefits as of the date the Claimant filed her reinstatement petition instead of the date her disability status was modified from total to partial?

Background:

Claimant was working for the City of Philadelphia (Employer) as a police officer when she sustained injuries to her left arm, right ankle, and back in 1999. A 2013 decision by a WCJ modified Claimant’s disability status from total to partial as of August 7, 2012, the date of an IRE.  On March 9, 2020, Claimant filed a petition seeking reinstatement of TTD benefits arguing that, because the method of the 2012 IRE was ruled unconstitutional in Protz II, she was entitled to a reinstatement of benefits as of the date that the IRE was performed.  In its 2021 decision, the WCJ granted Claimant’s petition and reinstated her TTD benefits as of the date the petition was filed. The Board affirmed.

Holding:

Claimant filed her reinstatement petition on March 9, 2020, well after the Supreme Court issued its Protz II decision, thus precluding retroactive application. Because Claimant did not challenge her 2012 IRE until after Protz II was decided, she is entitled to a reinstatement of benefits as of the date that her reinstatement petition was filed. Claimant has no vested property right to earlier TTD benefits, or to any other workers’ compensation benefits.

Affirmed.

Raymond George v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided October 11, 2022

Issue:

Whether the Board erred by affirming the WCJ’s decision reinstating his temporary total disability (TTD) benefits effective the date the claimant filed his reinstatement petition, instead of the date benefits were originally modified?

Background:

In 1999 the Claimant sustained injuries while in the course and scope of his employment as a police officer for Employer, for which he received TTD. In 2012, Claimant underwent an Impairment Rating Evaluation (IRE) during which the doctor determined that Claimant had an 8% whole-body impairment. Based upon the parties’ agreement memorialized in a 2012 WCJ decision, Claimant’s status was modified to temporary partial disability (TPD) effective January 5, 2012.  Based upon Protz II, on May 14, 2019, before 500 weeks of Claimant’s TPD expired, Claimant filed the Reinstatement Petition to have his TTD reinstated effective January 5, 2012.  On September 17, 2019, Claimant underwent a new IRE which determined that Claimant had a 6% whole-body impairment.  Employer filed a Modification Petition, claiming that Claimant’s disability status should again be changed to TPD effective September 17, 2019.  The WCJ granted the Reinstatement Petition effective as of the May 14, 2019 Reinstatement Petition filing date and granted the Modification Petition effective as of the September 17, 2019 IRE date, with a credit against the 500-week partial disability cap for the weeks Employer paid Claimant TPD. Claimant appealed from the portions of the WCJ’s decision granting the Reinstatement and Modification Petitions to the Board. The Board affirmed.

Holding:

The Board did not err by upholding the WCJ determinations granting Claimant’s Reinstatement Petition effective May 14, 2019 and granting the Modification Petition effective September 17, 2019.  Claimant did not challenge the validity of the January 5, 2012 IRE until after Protz II was decided.  Therefore, Claimant is not entitled to reinstatement of total disability benefits as of the IRE date but, rather, at the time he filed his reinstatement petition.   This is consistent with the overall remedial purpose and humanitarian objective of the Act, which is intended to benefit the injured worker.   Further, based on the Court’s previous rulings that Act 111 is constitutional and applicable to injuries occurring prior to October 24, 2018, the Board properly upheld the WCJ’s decision granting the Modification Petition effective as of the September 17, 2019 IRE date.

Affirmed.

COUNSEL FEES

Stanley Magurczek v. Philadelphia Federal Credit Union (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 20, 2022

Issue:

Whether, and to what extent, the Claimant is entitled to summary relief as to counsel fees in light of the Lorino holding.

Background:

Employer filed a request for utilization review.  The Bureau denied the UR Request. In response, Employer applied for review by a workers’ compensation judge (WCJ). The WCJ affirmed the Bureau’s determination but held that Employer had a reasonable basis for filing the UR Request.  The WCJ then awarded $2,500 in attorney’s fees to Claimant’s counsel (Counsel) pursuant to Section 440(a) of the Act.  The Board reversed the WCJ’s award of attorney’s fees on the basis that Section 440 of the Act only allows an award of attorney’s fees for an unreasonable contest.   Claimant seeks summary relief pursuant to Pa. R.A.P. 1532(b), which allows for immediate disposition of an appeal where the right of the applicant thereto is clear.

Holding:

Lorino repudiated the reasoning relied upon by the Board to deny claimant an award of attorney’s fees. Lorino did overturn the Court’s longstanding rule that Section 440 only allowed attorney’s fees if the employer engaged in an unreasonable contest.  Lorino held that where the employer has established a reasonable basis for its contest the WCJ is permitted, but not required, to exclude an award of attorney’s fees.  Based upon Lorino, The Court granted the claimant’s application to the extent it sought reversal of the Board’s holding that attorney’s fees under Section 440 are automatically excluded where there was a reasonable basis for filing the UR Request.

Reversed and Remanded.

LITIGATION COSTS

Denise Lawhorne v. Lutron Electronics Co., Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: October 18, 2022

Issue:

Whether the WCJ erred or abused his discretion in denying reimbursement of claimant’s medical expert’s deposition fee where Claimant prevailed on a disputed issue in the litigation of the Termination Petition?

Background:

Claimant sustained an injury in the course and scope of her employment with Employer. Employer recognized the injury as a left-hand strain.  Thereafter, Claimant filed a Review Petition to expand the description of her injury to include a left shoulder strain, left carpal tunnel syndrome, left wrist strain, left elbow strain, and left arm strain. She also filed Reinstatement and Penalty Petitions.  Employer later filed a Termination Petition.  Ultimately, the WCJ rejected the testimony of Claimant and her medical expert, as well as Employer’s medical expert, as not credible and detailed his reasons why. The WCJ concluded that Claimant successfully defended the Termination Petition and was entitled to ongoing partial disability benefits. Because Claimant prevailed in part, the WCJ awarded Claimant reimbursement for litigation costs, but less the $3,800 fee for claimant’s expert’s deposition because he rejected the doctor’s testimony as not credible.   Claimant appealed the WCJ’s decision to the Board, which affirmed. With regard to the denial of the expert’s fee, the Board echoed that, although Claimant successfully defended against the Termination Petition, its expert’s deposition did not contribute to Claimant’s success because the WCJ rejected his testimony as not credible. Thus, the Board declined to disturb the WCJ’s denial of reimbursement.

Holding:

Section 440(a) of the Workers’ Compensation Act (Act) authorizes an award to a claimant for litigation costs where the claimant prevails in part or in whole.  For litigation costs to be reasonable, the WCJ must ascertain the extent to which they relate to the matter at issue on which the claimant prevailed.  The costs incurred do not have to contribute to the success of the matter at issue. In situations where an employer unreasonably contests a particular issue, attorney’s fees are assessed in an amount attributable to the litigation of that issue, and not the entire claim. This rationale for apportionment of attorney’s fees logically extends to other litigation costs where a claimant prevails in part.  Claimant partially prevailed in the litigation by successfully defending against the Termination Petition, Claimant is entitled to recoup any costs related thereto. The Court reversed the Board’s determination insofar as it affirmed the WCJ’s complete denial of claimant’s expert’s fee and remanded for the WCJ to calculate and assess an award of the medical expert’s fee insofar as it reasonably related to the issue of whether Claimant had fully recovered from her work-related injury upon which Claimant prevailed.

Reversed and Remanded.

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

10/1/2022-10/25/2022

SCOURSE OF EMPLOYMENT

Keim v. Above All Termite & Pest Control

Superior Court of New Jersey, Appellate Division

No. A-3660-20; 2022 WL 6833581

Decided: 10/12/2022

Background:

Keim was employed by Above All as a pesticide applicator. He traveled from his home in a company vehicle to job sites, and obtained supplies from Above All’s shop in Forked River. Michael Zummo, the owner of Above All, directed employees not to carry large quantities of pesticides and supplies in their company vehicles because of risk of exposure to the elements and the risk that they will be stolen.

On July 16, 2020, Keim was on his way to Above All’s shop to replenish the supplies he would need for the day, when he was in a series motor vehicle accident, causing his head to hit the inside of the vehicle and for him to lose consciousness, as well as injuries to his left flank and ribs. Keim reported the accident. Two months later, Keim was experiencing balance issues and reported the symptoms to Above All, who advised him to seek medical attention, eventually requiring surgery. On October 21, 2020, Keim filed a workers’ compensation employee claim petition. Above All then filed a motion to dismiss, alleging that Keim’s injuries did not occur in the course of his employment. On July 13, 2021, the Judge of Compensation (JWC) issued an oral decision and order dismissing Keim’s petition with prejudice, determining that Keim’s injuries were not compensable because they did not arise within the course and scope of his employment. Keim appealed.

Holding:

Keim argued that he was performing duties required by Zummo, and was not commuting to work, but instead was engaged in an activity that was specifically directed by his employer, namely driving his company vehicle to Above All’s shop to retrieve the necessary supplies for his workday. The court gives a history of the “going and coming” rule, and how it was replaced with the premises rule. The premises rule states that an injury arises in the course of employment if it occurs on the employer’s premises. However, this rule has two notable exceptions: 1) the special mission exception, and 2) the authorized operation of a business vehicle. The court holds that the activities in this matter fall under the second exception, which states that the authorized operation of a business vehicle on business authorized by the employer is an exception to the premises rule.

The court further held that “when an employer directs or requires an employee to undertake an activity, that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment.” The court also distinguishes that employees who work off-premises are within the scope of their employment when they are where they are supposed to be and doing what they are supposed to be doing, except when they are commuting.

The court holds that Keim was within the course and scope of his employment at the time of the accident and was performing duties that were expressly authorized and directed by his employer, which falls within the authorized operation of a business vehicle exception, and therefore his injuries are compensable under the Act.

Reversed and Remanded.

PA & NJ – CASE SUMMARIES 8/01/2022 to 8/31/2022

Sep 13, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

8/01/2022 – 8/30/2022

SUBPOENA ENFORCEMENT

 Jo Jo Pizza and Eastern Alliance Ins. Co. v. Larry Pitt & Associates

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 5, 2022

Issues:

Whether the WCJ lacked subject matter jurisdiction to address Employer’s petitions and issue the subpoena because the benefits portion of the workers’ compensation matter concluded years earlier when the parties completed the C&R?  Whether the WCJ, an officer of the executive branch, violated separation of powers principles by allegedly seeking a contempt order in the trial court against Attorney Pitt?

Background:

Claimant slipped and fell on ice in Employer’s parking lot.  Attorney Pitt filed a workers’ compensation claim petition on her behalf as well as a third-party premises liability action in the trial court against the owner of the property where Employer is located.  The claim petition was granted.  Subsequently, the WCJ approved a compromise and release agreement (C&R) between the parties that resolved Claimant’s medical and wage loss claims. The C&R recognized Employer’s full right to subrogation.  Employer declined to reduce its lien and in anticipation of the risks of a trial, Claimant and Attorney Pitt signed a new fee agreement increasing Attorney Pitt’s fee to 50% of any recovery in tort. The third-party action ultimately resolved.  Employer, suspicious that Attorney Pitt improperly diverted amounts from his attorneys’ fees to Claimant that should have been subject to Employer’s subrogation lien, filed review and modification petitions with the WCJ.  In association with these petitions, Employer issued a subpoena, approved by the WCJ, which asked Attorney Pitt to produce copies of all fee agreements between himself and Claimant, releases, distribution sheets, and copies of any checks issued by Attorney Pitt to Claimant.  Attorney Pitt refused to respond to the subpoena or participate in proceedings, writing in a letter to the WCJ that there was no subject matter jurisdiction for Employer’s petitions as Claimant’s workers’ compensation matter had been fully and finally resolved by the C&R.  Contempt proceedings were commenced in Common Pleas Court.  On January 15, 2021, the trial court issued its order finding Attorney Pitt in civil contempt for willful noncompliance with Employer’s subpoena, ordering disclosure of the requested information, and awarding Employer attorneys’ fees and costs associated with its litigation of the civil contempt petition.

Holding:

The Act does not limit the WCJ’s jurisdictional authority over subrogation matters to instances where there remain open and active workers’ compensation matters before the WCJ. Moreover, claimants and their counsel may not manipulate attorneys’ fees in a manner that would negatively affect the employer’s subrogation lien. The WCJ did not err in accepting jurisdiction over Employer’s petitions or in issuing Employer’s subpoena, the intent of which was to ensure that Claimant and Attorney Pitt had not manipulated attorneys’ fees to thwart Employer’s right to the fullest possible satisfaction of its lien, particularly in light of Attorney Pitt’s concession, on the record, that Claimant had received “some” money from the third-party settlement, and this amount was not reflected in Mr. Pitt’s distribution letter. Employer declined to compromise its lien prior to settlement of the third-party case, and it did not concede its right to receive the full amount of its lien. Further, Employer’s right to seek enforcement of the full extent of its lien by a WCJ was not extinguished when Employer resolved Claimant’s benefits via a C&R.   By extension, the trial court did not err or abuse its discretion in granting Employer’s petition for civil contempt against Attorney Pitt for his failure to comply with the subpoena.  The WCJ did not violate separation of powers principles and the trial court did not err or abuse its discretion in agreeing with the WCJ on this issue.  Further, the record does not support Attorney Pitt’s argument that the WCJ ordered Employer to commence subpoena enforcement proceedings in the trial court. The mere fact that the WCJ advised both parties of Employer’s right to pursue such proceedings, up to and including Employer’s petition for civil contempt against Attorney Pitt, does not mean that the WCJ thwarted or intervened in the Supreme Court’s role in governing the state courts and practicing attorneys.

Affirmed.

NOTICE OF A WOK INJURY

 Kelly Twaroski v. BASF Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 30, 2022

Issue:

Whether the WCJ misinterpreted and misapplied the discovery rule under the Act?

Background:

On February 13, 2020, Claimant filed a claim petition asserting that he suffered a work-related injury described as cervical myelopathy on July 14, 2019, when he ran into a pipe overhead and jerked his neck backwards.  Claimant continued working and the pain “pretty much went away and he felt fine.”  Claimant finished the work week but noticed his fingertips “felt tingly.” The plant then shut down for a week, and Claimant continued to feel intermittent tingling in his fingertips. When the plant reopened, Claimant stated he returned to work and noticed more intense tingling in his fingers. Claimant told his supervisor about the issue with his hands and that he could not come in to work because he could not perform his job. Claimant admitted that he did not report the July 14, 2019 incident to his supervisor at this time because he did not have continuing neck pain and did not think it was related to the issue he was experiencing with his hands.  The WCJ issued a decision and order dismissing Claimant’s claim petition due to Claimant’s failure to timely notify Employer of the existence of a work-related incident within 120 days of July 14, 2019. The Board affirmed the WCJ’s decision on appeal noting that the Claimant had a specific incident on the date of injury that caused him neck pain.  This incident triggered the 120-day notice requirement, with which Claimant failed to comply.

Holding:

The WCJ neither erred nor misapplied the discovery rule of Section 311 of the Act; rather, it simply did not apply in this case.  Under Section 311 of the Act, unless notice is given within 120 days after the occurrence of the injury, no compensation shall be allowed.   Section 311’s 120-day notice period includes the ‘discovery rule.’  In order to trigger the running of the 120-day period for notice, a claimant must have: (1) knowledge or constructive knowledge, (2) of a disability, (3) which exists, (4) which results from an occupational disease or injury, and (5) which has a possible relationship to the employment.  Substantial evidence of record, i.e., Claimant’s own testimony, supports the WCJ’s finding that Claimant failed to give timely notice of his alleged work-related injury. Specifically, Claimant credibly testified that he injured himself at work on July 14, 2019, and that he immediately experienced pain afterwards, but he “just basically shook it off,” continued working, and did not tell Employer.   Thus, Claimant knew in that moment that he had injured his neck and that the injury was related to his employment; he simply did not know the possible extent of that injury. While he told his Employer his hands were hurting following the plant shutdown and that he went out of work on August 18, 2019 and did not return due to him receiving carpal tunnel surgery, he never related this condition and surgery to any work injury or incident at work.  He did not submit a claim petition until February 13, 2020, which was outside of the 120-day period allowed by the Act.  The WCJ found that on July 14, 2019 Claimant knew, or should have known, that this injury was related, or possibly was related, to his employment.  The notice provisions of Section 311 are mandatory.

Affirmed.

JUDICIAL DISCRETION

Elbert L. Hatten, Jr. v. J.B. Hunt Transport Services, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 1, 2022

 Issue:

Whether the WCJ’ s findings were arbitrary and capricious?

Background:

Claimant operated a tractor trailer and delivered freight for Employer.  Claimant was injured when he fell from the step board of Employer’s truck and landed on his buttocks. Ultimately, Employer accepted injuries to Claimant’s lumbar and/or sacral vertebrae and commenced payment of weekly indemnity benefits.  Based on the results of an independent medical examination (IME), Employer filed a Termination Petition, alleging that Claimant had fully recovered from his injuries.  Prior to addressing Employer’s Termination Petition, the WCJ recognized that Claimant sought to expand the description of his work injury to include four additional injuries. The WCJ accepted Claimant’s expert’s diagnosis for two of the diagnoses but did not find credible evidence of the other two. Thus, the WCJ expanded the description of Claimant’s work injury but not to the extent sought by Claimant. Nevertheless, because the WCJ specifically found Claimant’s testimony of an ongoing work injury credible and persuasive, the WCJ denied the Termination Petition.

Holding:

It is well settled that the WCJ is the factfinder, and it is solely for the WCJ to assess credibility and to resolve conflicts in the evidence.  Where both parties present evidence, it is irrelevant that the record contains evidence which supports a finding contrary to that made by the WCJ; rather, the pertinent inquiry is whether evidence exists that supports the WCJ’s findings.  The Court may not reweigh the evidence or the WCJ’s credibility determinations.  The Court may overturn a credibility determination only if it is arbitrary and capricious, so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.  A party seeking to amend an NCP has the burden of proving that the NCP is materially incorrect. In this case, the WCJ set forth the evidence from both parties in neutral fashion, then issued several findings based on that evidence. The WCJ did not credit some of the expert’s diagnoses. This is the prerogative of the factfinder. Because there is substantial evidence of record supporting the WCJ’s findings, and because Employer is entitled to the benefit of all favorable inferences drawn from the evidence, the WCJ’s findings are neither arbitrary nor capricious, and may not be reweighed or disturbed.

Affirmed.

OBLIGATION FOR REASONABLE MEDICAL SERVICES

 Ralph Martin Constr. & Lackawanna American Ins. Co. V. Miguel Castaneda-Escobar (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 1, 2022

Issue:

Whether the Board erred in requiring Employer to pay for home modifications that were never done?

Background:

Claimant fell off a roof and injured his cervical spine, thereby rendering him a paraplegic. Employer accepted liability for the injury in a Notice of Compensation Payable.  In 2011, a design and construction firm estimated that it would cost $119,722.21 to modify the claimant’s residence, the Reading Home, to accommodate his work injury.  The design firm observed that it might be more cost effective for Claimant to relocate to a single-floor residence with wheelchair accessibility.  In 2013, Employer’s consultant stated that modifying the Reading Home would not be the best long-term solution for Claimant due to the fact that he does not own the home, the unknown duration of his stay in this home and the limited options for modifications.  In 2018, Claimant bought a home, the Leesport Home, for $230,000 for which he incurred closing costs of $4,158. This Leesport Home accommodated Claimant’s needs, however, the shower in the master bathroom had to be modified to provide wheelchair accessibility. Employer reimbursed Claimant for the $5,905.04 Claimant spent to modify this bathroom.  Claimant did not testify to explain his decision to purchase a home.  Employer filed a Medical Review Petition, asserting that Claimant’s purchase of the Leesport Home was not a reimbursable medical expense under Section 306(f.1)(1)(ii) of the Act.  Because the modification to the Reading house, where Claimant resided at the time of his injury, was projected to cost $119,722.21, the Board, reversed the WCJ and held that Employer was required to contribute that amount towards Claimant’s purchase of a one-story home that required few modifications.

Holding:

The term “orthopedic appliances” has been construed to cover the construction of home modifications, where necessary to allow the claimant to use the orthopedic appliances and prostheses. The particular circumstances of the claimant must be considered in determining the precise obligation of the employer.  At the time of injury, Claimant resided in the Reading Home, which required modifications projected to cost $119,722.21. Before any work was done, Claimant purchased the Leesport Home. Nonetheless, Claimant continues to seek “reimbursement” of the $119,722.21 that was never spent on the Reading Home.   Claimant’s wheelchair is clearly an orthopedic appliance, and precedent has established that home modifications to make the wheelchair useful to Claimant are Employer’s responsibility. However, there is no precedent under the Act that has established that an employer can be held liable to purchase an entire house for a claimant or to pay for modifications that were never undertaken.  Here, there is no record evidence to support a finding that Claimant needed to own his own home in order to facilitate the use of his wheelchair.   On the other hand, a structural renovation to Claimant’s new home was a necessity, and Employer promptly paid for the shower modification in Claimant’s bathroom. There is no evidence that Claimant has presented Employer with any additional invoices for renovations to the Leesport Home.  Claimant’s consultants determined that $119,722.21 was required to remodel the Reading Home to make it accessible for Claimant, but this amount did not become Claimant’s baseline entitlement, as suggested by the Board. Further, Claimant did not incur any costs to modify the Reading Home. Nor was the estimate of $119,722.21 adjudicated as reasonable. Notably, the Reading Home had unique challenges due to its age and construction that contributed to the estimated cost of $119,722.21.  Claimant purchased a home that was generally accessible to Claimant, with the exception of the bathroom. Employer paid for that modification, and this fulfilled Employer’s obligation under Section 306(f.1)(1)(ii) of the Act.  If Claimant had not been willing, or not been able, to move from the old home, some modification would have been required. The extent of that modification would have required a weighing of the remedial purposes of the Act against the need to avoid windfalls to Claimant. This analysis was never undertaken.  Further, there is no evidence that the purchase of a new house, as opposed to some other living arrangement, was essential to Claimant’s medical treatment.   Section 306(f.1)(1)(ii) of the Act did not authorize the Board to order Employer to pay Claimant $113,817.17 for home modifications never done or to contribute to the purchase of a new home. We affirm the Board’s holding that Employer was not liable for Claimant’s closing costs for the new home.

Affirmed in part and Reversed in part.

IMPAIRMENT RATING EVALUATION

 Halsted Communications, LTD v. WCAB (Miller)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issue:

Whether the Board erred in affirming the WCJ’s decision because Claimant failed to present medical evidence of ongoing total disability to support the grant of his Reinstatement Petition?

Background:

Claimant sustained work-related injuries while in the course and scope of his employment as a TV technician for Employer. In 2012, via a Notice of Change of Workers’ Compensation Disability Status (Notice of Change), Claimant’s WC benefits were modified to partial disability benefits based on an impairment rating evaluation (IRE) which found that Claimant had a 19% whole body impairment rating. This Notice of Change was not challenged.   In 2019, Claimant filed the Reinstatement Petition, alleging that his WC benefits should be reinstated as of the date of the IRE based on the PA Supreme Court’s decision Protz II, finding the former provision of the Act authorizing IREs was unconstitutional.  The WCJ granted Claimant’s Reinstatement Petition, as of the date of the filing of the Reinstatement Petition.  The Appeal Board affirmed.

Holding:

The WCJ accepted Claimant’s testimony that he continues to be disabled from his work-related back and foot injuries. He also noted that employer’s expert agreed that Claimant continues to have an impairment from his back condition. Employer accepted, pursuant to an NCP, that Claimant suffered compensable work-related injuries to his left foot, low back, and ribs fracture.  Claimant clearly testified that these accepted injuries prevented him from performing the duties of his pre-injury position with Employer. Employer’s medical expert was found to be credible to the extent that it corroborated Claimant’s testimony that his recognized work-related injuries continue. As a result, the WCJ did not err in granting Claimant’s Reinstatement Petition and directing that he receives total disability benefits effective as of the date that he filed the Reinstatement Petition.  The Court further held that the Employer is not entitled to a credit under Section 306(a.3) for payments made under an unconstitutional IRE that was conducted six years prior to its enactment, and the Board did not err in affirming the WCJ’s decision in this regard. Rather, Employer may vindicate its right to a credit in a subsequent, new IRE proceeding under Section 306(a.3) of the Act.

Affirmed.

James Gilbert v. Albert Einstein Medical Center (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issues:

Whether Protz II must be given full retroactive effect, rendering all IREs performed pursuant to Section 306(a.2) of the Act, and all the legal effects therefrom, void ab initio?

Background:

Claimant suffered an injury in the course and scope of his employment.  Employer issued a Notice of Compensation Payable that described Claimant’s work injury as a right cervical strain for which Employer paid Claimant TTD benefits.   In 2006 an IRE determined that Claimant had reached maximum medical improvement from his work injury and had a corresponding 35% whole-body impairment rating. In a 2007 Supplemental Agreement, Employer and Claimant agreed that Claimant’s work injury benefit status changed from TTD to temporary partial disability (TPD) based upon the 2006 IRE.   In 2017, Claimant filed the Modification Petition alleging that Claimant’s WC benefit status should be modified from TPD to TTD as of the effective date of the change in Claimant’s WC benefit status as set forth in the Supplemental Agreement.  Claimant also filed a Reinstatement Petition alleging that Claimant’s TTD benefit status should be reinstated as of January 12, 2016, the day after Claimant’s 500 weeks of TPD benefits ended.   The WCJ granted Claimant’s Reinstatement Petition effective November 10, 2017, the date Claimant filed his Reinstatement Petition, and denied Claimant’s Modification Petition.  The Board affirmed.

Holding:

Neither the WCJ nor the Board erred as a matter of law by relying on the holdings in Whitfield and Dana Holding Corp., and reinstating Claimant’s WC benefits to TTD status as of the date that he filed his Reinstatement Petition, rather than reinstating him to TTD status as of June 15, 2006, the effective date of the unconstitutional IRE.  Claimant filed his Reinstatement Petition well over the three years afforded by Section 413(a) of the Act. Because Claimant had not sought reinstatement of his TTD status within the three years provided by Section 413(a) of the Act, and because his challenge was not preserved in active litigation at the time Protz II was decided, Claimant is not entitled to relief.

Affirmed.

Tyvia Robinson v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issues:

Whether Act 111 is unconstitutional when retroactively applied to work injuries sustained before its enactment?

Background:

Claimant sustained a work-related injury in the nature of a right thumb contusion when a door closed on her thumb in the course of her employment with Employer. The injury was recognized by Employer via a Notice of Compensation Payable.  On February 7, 2020, Claimant underwent an IRE performed by Lynn W. Yang, D.O., using the American Medical Association Guides (AMA Guides). Dr. Yang opined Claimant had reached maximum medical improvement (MMI) and concluded Claimant’s Whole-Body Impairment (WBI) was 15%. Claimant had received at least 104 weeks of temporary total disability benefits. Employer filed the modification petition seeking to have Claimant’s benefits changed from temporary total disability to partial disability benefits.  The WCJ granted Employer’s modification petition.

Holding:

Where the claimant sustained an injury prior to Act 111’s enactment, the retroactive application of Act 111 does not deprive the claimant of his vested right to workers’ compensation benefits. Moreover, the Claimant’s vested rights were not affected by Act 111 because “there are reasonable expectations under the Act that benefits may change.”  Claimant’s IRE occurred after Act 111 was enacted, and thus, it did not constitute a retroactive application of the law. Moreover, Act 111 did not automatically change Claimant’s disability status or deprive her of vested rights, but instead, provided Employer with a way to pursue a change in Claimant’s disability status by requiring medical evidence that Claimant’s WBI was less than 35%.

Affirmed.

Kirk Wescoe v. Fedchem, LLC and SWIF (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 16, 2022

Issue:

Whether Act 111 is unconstitutional when retroactively applied to work injuries sustained before its enactment?

Background:

In 2011, Claimant sustained a work-related injury to his lower back.  Employer acknowledged the injury as a lower back strain in a notice of compensation payable, which was later amended to include an L4-5 disc herniation with radiculopathy. In 2019, Employer filed a modification petition alleging that Claimant had a whole-body impairment rating of 13% based upon an IRE examination, performed under the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) (second printing April 2009).  The WCJ concluded that Employer established that Claimant had a whole-body impairment of 13% and, therefore, granted Employer’s petition, modifying Claimant’s benefits to partial disability status effective the date of the IRE examination.

Holding:

This Court addressed the retroactive application of Act 111 on numerous occasions, holding that a vested right is one that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person’s consent.  There are reasonable expectations under the Act that benefits may change.  Thus, Act 111 did not deprive claimants of a vested right but simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence that the claimant has a whole-body impairment of less than 35%, after receiving 104 weeks of [total temporary disability] benefits.  Further, the General Assembly specified using clear language that employers/insurers were entitled to credit for the weeks of disability compensation paid to an injured employee prior to the passage of Act 111. The Board’s application of Act 111 in modifying Claimant’s benefits to partial disability status did not violate the Remedies Clause found in article I, section 11 of the Pennsylvania Constitution because Claimant does not have a vested right to workers’ compensation benefits. Thus, we affirm the Board’s adjudication.

Affirmed.

Robert Yeager v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 4, 2022

Issue:

Whether claimant’s temporary total disability benefits should be reinstated as of the date that the pre-Protz II IRE was performed, rather than as of the date that he filed his reinstatement petition?

Background:

Claimant sustained a work injury to his right knee. Employer accepted the injury as a “right knee sprain.” In 2013, Claimant underwent an Impairment Rating Evaluation (IRE) that found that Claimant had a 1% impairment. The parties stipulated to the modification of Claimant’s benefits to partial disability as of the date of the IRE.  On September 14, 2017, Claimant filed a reinstatement petition based on the PA Supreme Court’s decision in Protz (Protz II).  The WCJ found as fact that Claimant has never fully recovered from his work injury and he has never been physically able to return to his pre-injury job as an asphalt spreader. Therefore, the WCJ granted Claimant’s reinstatement petition, as of the filing date of the reinstatement petition.

Holding:

Claimant argued he has a vested property right to total disability benefits from 2013, when the IRE was rendered unconstitutional by Protz II and that the Remedies Clause in article I, section 11 of the Pennsylvania Constitution precludes retroactive legislation that altered his vested right to total disability benefits under the Act.  The Court addressed the retroactive application of Protz II in Whitfield, where it held that the claimant, whose disability status was rendered invalid by Protz II, and who filed a reinstatement petition within three years of her last compensation payment, was entitled to reinstatement as of the date that she filed her reinstatement petition.   A reinstatement of the claimant’s benefits was governed by Section 413(a) of the Act, requiring proof that the claimant’s disability continued.  A claimant need not produce medical testimony to satisfy his burden of proof as his own credited testimony will suffice. The Court has repeatedly affirmed that a claimant’s reinstatement of total disability benefits is effective as of the date that the reinstatement petition was filed, and not as of the date of the now-unconstitutional IRE under Protz I or Protz II.  Here, Claimant satisfied his burden for reinstatement, based on his own testimony that he was totally disabled, as credited by the WCJ. Claimant’s reinstatement was properly granted as of the date that Claimant filed for reinstatement in 2017.

Affirmed.

PENALTY PETITION

 Frank Hughes v. Wawa, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Disposition

Decided August 8, 2022

Issues:

Whether the WCJ’s denial of the penalty petition was the result of capricious disregard of undisputed evidence of a violation of the Act?

Background:

Claimant sustained a work-related injury while working as a truck driver for Employer. In 2011, the parties entered into a Compromise and Release (C&R) Agreement approved by the WCJ resolving wage loss benefits. The medical portion of Claimant’s claim remained open.  In 2018, Employer filed two Utilization Review (UR) requests to determine whether certain prescriptions were reasonable and necessary. The WCJ found that Employer had met its burden of proof and that a reduction of the prescriptions was necessary as to the providers.  Claimant filed a penalty petition, alleging that Employer failed to pay for necessary medical treatment in violation of the Act.  The WCJ denied and dismissed Claimant’s penalty petition. The WCJ found that Claimant had not met his burden of proving a violation of the Act.  The Board affirmed the WCJ’s decision in its entirety.

Holding:

The WCJ did not capriciously disregard any evidence. The standard of capricious disregard requires an examination of whether the WCJ willfully and deliberately disregarded competent testimony and relevant evidence that one of ordinary intelligence could not possibly have avoided in reaching a result.  Claimant had the burden of establishing a violation. A conclusory Affidavit from provider attesting that the bills were “properly submitted,” was not determinative of whether Employer violated the Act. There was no evidence that provider’s bills were properly submitted with the required medical reports in accordance with the Act. To the contrary, the record demonstrated that there were no supporting medical notes, or diagnosis, or description of treatment or any other explanation of the dosages that would enable Employer/insurer to assess the reasonableness or necessity of the treatment.   Moreover, providers that treat injured employees are required to submit the required medical reports within 10 days of commencing treatment and at least once a month thereafter as long as treatment continues. The only documents provided to Employer were the Health Insurance Claim Forms, which contained a mere summary of the dates and dosages and which are all dated after the penalty petition was filed.  Employer had no factual basis upon which to confirm or deny causation or the reasonableness and necessity of the underlying treatment represented by these bills or to decide whether it had a valid basis upon which to seek a UR.  Employer was not required to pay for this treatment.

Affirmed.

UTILIZATION REVIEW

 Hulda Gillot v. Visiting Nurse Assoc. of Greater Phila. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 30, 2022

 Issues:

1. Whether the Employer’s UR requests were untimely because they were filed nearly two years after liability was established via a medical-only NTCP; and 2. Whether the Employer did not meet its burden of proving claimant’s palliative medical treatment was unreasonable and unnecessary?

Background:

In 2016, Claimant sustained an injury while working for Employer. Claimant filed a claim petition alleging that she sustained multiple injuries at work, resulting in disability. The next day, Employer issued a medical-only notice of temporary compensation payable (NTCP) acknowledging that a work injury occurred but disputing that it caused disability.   A WCJ granted Claimant’s claim petition, adding to the originally accepted injuries.  Within 30 days of the decision, the Employer filed UR requests to determine if Claimant’s treatments from five providers were reasonable and necessary.  The UR determinations where not entirely in the providers’ favors. Claimant filed a petition for review of the UR determinations.  Following review, the WCJ found Claimant’s testimony not credible regarding the reasonableness and necessity of her treatment.   The Appeal Board affirmed.

Holding:

Claimant’s contention that the UR requests Employer filed after the decision granting the claim petition in 2018, were timely for challenging the treatment from 2016 forward had no merit.  There was no proof that the Employer was required to file for UR prior to the granting of the claim petition.  Importantly, the record did not establish the nature of the injury that was accepted in the 2016 medical only NTCP, because the document was never submitted.  Based on the fact that Claimant filed a claim petition, it is not clear if she professed to have suffered from injuries not encompassed in the NTCP. Undoubtedly, Employer was contesting liability for at least some of Claimant’s injuries or she would not have needed to file a claim petition.  Claimant’s argument that Employer’s UR requests were untimely because it was obligated to challenge her medical treatments because they were accepted by the 2016 medical only NTCP is not based on any evidence of record. As such, Claimant’s first contention of error is meritless.  As to the second issue, while treatment may be reasonable and necessary even if it is designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition, there is no requirement that the employer raise the issue of palliative care. When evidence is presented that the treatment is palliative in nature, the employer merely bears the burden of refuting it.  Before the WCJ, Claimant testified that some of her treatments were palliative in nature. However, the WCJ found her testimony not credible.  The WCJ also found there was no evidence that the treatments helped Claimant’s work-related conditions or symptoms.   The WCJ noted that when Claimant missed a treatment, there did not appear to be a worsening in her condition.  Provider also indicated that some of his treatments were used to decrease Claimant’s pain, however, the WCJ rejected these opinions as not credible. Lack of progress in pain improvement is a factor that the WCJ may consider in making the factual determination of whether palliative care is reasonable and necessary.   Thus, the WCJ was free to determine that the palliative treatments for Claimant’s pain did not effectively improve her symptoms.

Affirmed.

SUSPENSION PETITION

Hi-Tech Flooring, Inc. v. WCAB (Santucci)

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 9, 2022

Issue:

Whether the Employer had shown by a totality of the circumstances that Claimant had chosen not to return to the workforce?

Background:

Claimant, a tile setter, has been a Union member since 1985. In 2014, Claimant sustained a work-related injury in the form of a right knee contusion.  Thereafter, Employer issued a Notice of Temporary Compensation Payable accepting the work injury.  In 2018 Employer filed a Suspension Petition, alleging that Claimant had voluntarily left the workforce by accepting a pension from the Union in 2017, and receiving SSD benefits for physical injuries or conditions beyond the work-related right knee injury. The WCJ agreed with the Employer and granted the suspension.  The Board determined that the WCJ erred in finding that Employer had shown, by a totality of the circumstances, that Claimant had chosen not to return to the workforce. Accordingly, the Board reversed the WCJ’s grant of Employer’s Suspension Petition.

 Holding:

An employer bears the burden of showing that a claimant has retired.  The PA Supreme Court has rejected attempts to create a rebuttable presumption that a claimant has voluntarily retired from the entire workforce merely from the fact that a claimant has accepted some type of pension benefit.   Claimant received the SSD benefits based, in part, on his work-related injury and lack of transferrable skills, which prevented Claimant from working. Therefore, Claimant’s receipt of SSD benefits in this matter suggests that Claimant’s work injury forced him out of the labor market.  As to the Union disability pension, Claimant’s Union disability pension relates to the very position that the WCJ already found Claimant could not, and cannot, perform due to the work injury. That Claimant might have some other conditions that also affect his ability to perform that work does not eliminate the fact that Claimant’s unresolved work-related injury prevents him from doing so. Thus, Claimant’s receipt of a disability pension that is based on his total and permanent disability from his trade, a trade from which he is already disabled due to the work-related injury, does not speak to Claimant’s voluntary removal from the entire workforce.  Claimant’s receipt of a disability pension shows that he could not perform the time-of-injury position; it does not necessarily follow that Claimant decided to forgo all employment.  Moreover, the WCJ specifically found Claimant has not fully recovered from the work-related injury and is unable to return to his pre-injury position.   Claimant here accepted a disability pension from the Union and SSD benefits, as opposed to age-based retirement benefits. Given this difference in the type of pension and SSD benefits in the present case, and in light of the above circumstances, precedent does not require a finding of removal from the workforce.  Further, the totality of the circumstances shows Claimant did not look for other work because he did not know what other kind of work to look for.  This does not evidence an intent to retire from the workforce but, rather, a lack of understanding what options may be available to Claimant to remain in the workforce.   The totality of the circumstances in this case, including all relevant and credible evidence, do not support Employer’s assertion that Claimant voluntarily retired and left the workforce.

Affirmed.

COMPROMISE AND RELEASE AGREEMENTS

James Hymms v. Commonwealth of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 11, 2022

Issue:

Whether, at the time of the entry into the C&R, there was either a mutual mistake, or a unilateral mistake that converted into a mutual mistake, regarding the calculation of the lump sum payment contained in the C & R Agreement?

Background:

Claimant, who was represented by counsel entered into a C&R Agreement with the employer.  The C&R Agreement stated that Claimant suffered a binaural hearing loss, and that the Agreement will resolve all claims for specific loss/hearing loss benefits for a lump sum payment of $34,000, minus counsel fees of $6,800, for a net total payment of $27,200.   A telephonic hearing was held before the WCJ regarding approval of the C&R Agreement. Claimant testified that he read and signed the C&R Agreement, with consultation from Counsel. The WCJ had Claimant look at the C & R Agreement and asked if he understood that he was settling all of his rights to hearing loss benefits for a lump sum reflected therein, minus the amount to be paid to Counsel. Claimant was also asked if he understood that Employer would remain responsible for medical treatment for his hearing loss for one year, after which it would become Claimant’s responsibility. Claimant again responded “yes.” The WCJ then informed Claimant that once she approved the C&R Agreement, Claimant would not be able to come back to Workers’ Compensation for any money relating to this injury except for what was agreed to with the medical bills, even “if at some time in the future you believe you settled for too little money, it is still over when I approve it.” Claimant acknowledged this and affirmed that he still wanted to settle his case. The WCJ found that Claimant understood the full legal significance of the C&R Agreement and understood the effect it would have on future payments of compensation and medical expenses and approved it.

Holding:

Under the WC Act, settlement agreements are not valid or binding until approved by a WCJ. Further, the WCJ shall not approve any C&R agreement unless he first determines that the claimant understands the full legal significance of the agreement.  Evidence demonstrating a mutual mistake must be clear, precise, and indubitable.  However, if a party to a contract knows or has reason to know of a unilateral mistake by the other party and the mistake, as well as the actual intent of the parties, is clearly shown, relief will be granted to the same extent as if a mutual mistake existed.  There was no evidence of record supporting Claimant’s claim of mutual mistake. The C&R Agreement does not mention Claimant’s specialist or a formula, and Claimant’s specialist’s findings were not submitted into evidence before the WCJ. Moreover, at the hearing before the WCJ, Claimant testified that he understood he was agreeing to settle all of his rights to hearing loss benefits for a total lump sum payment of $34,000, minus attorney’s fees, and neither he nor his Counsel suggested that the payment was based on a formula. As such, the record and the C&R Agreement are devoid of any proof of a mutual mistake. Claimant did not meet his burden of proving Employer was also mistaken as to a present, material fact that existed at the time the C&R Agreement was executed.

Affirmed.

SPECIFIC LOSS

Joseph J. Trovato, Jr. v. Citizens Financial Group (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 29, 2022

 Issue:

Whether the Board erred in reversing the WCJ’s Decision as the WCJ’s specific loss determination is supported by substantial evidence?

Background:

Claimant filed a Claim Petition in which he alleged that he sustained a work-related injury in the nature of a retinal detachment of the left eye during the course and scope of his employment with Employer as a Senior Project Manager/Vice President.  Claimant sought specific loss benefits for his left eye.  Claimant’s vision quickly deteriorated, such that, within very little time, he lost almost 75% of his vision.  Claimant sought medical treatment and underwent surgery within days of the incident. Claimant denied ever experiencing sparks or bright lights in his left eye before the incident. Claimant acknowledged prior cataract surgeries for both eyes; the left eye surgery was in 2013.  About a month after surgery, Claimant again noticed rapid deterioration of his vison. He underwent a second surgery.  Following the second surgery, Claimant testified that there was not much change in the vision of his left eye. Without glasses, Claimant testified that his left eye vision is wavy and distorted.   The WCJ found the testimony of Claimant to be credible but noted that Claimant’s credibility is not at issue because this case involves the issue of medical causation. The WCJ accepted the opinions of Claimant’s medical expert over Employer’s expert.   The WCJ found that Claimant sustained a loss of use for all practical intents and purposes of his left eye and that the loss was causally related to the incident that occurred at work.  The Board reversed the award of specific loss of sight benefits upon concluding that Claimant’s medical evidence was insufficient to meet the legal standard but affirmed in all other respects.

Holding:

The Board did not reweigh the evidence or render new credibility findings in reversing the award of specific loss benefits. The Board simply reviewed Claimant’s expert’s credible testimony in its entirety and determined it did not constitute substantial evidence as a matter of law to support a conclusion that Claimant had lost his left eye for all intents and purposes.  When a claimant alleges specific loss and seeks benefits pursuant to Section 306(c) of the Workers’ Compensation Act (Act), he bears the burden of proving that he suffered a permanent loss of use of his injured body part.   Where an eye has been injured but not destroyed, the test to determine whether compensation should be awarded is whether the eye was lost for all intents and purposes. Loss for all intents and purposes will be found where the injured eye does not contribute materially to the claimant’s vision in conjunction with the use of the uninjured eye.  This “material contribution test” requires the factfinder to determine if the claimant’s vision is materially improved when using both eyes rather than the good eye alone, not just whether the claimant in fact has vision in the injured eye.   Compensation may not be had if, using both eyes, the claimant can see better, in general, than by using the uninjured eye alone.  Claimant’s expert offered no opinion as to whether the injured eye materially contributes to Claimant’s vision in conjunction with the uninjured eye and offered no opinion on whether Claimant’s vision is better when using both eyes than when using the uninjured eye alone.

Affirmed.

STATUTORY EMPLOYMENT

Ronald And Jill Oster, h/w v. Serfass Construction Company, Inc., et al.

Superior Court of Pennsylvania – Unpublished Memorandum Opinion

Decided August 17, 2022

Issue:

Whether the trial court erred as a matter of law in granting Serfass’ Motion for Summary Judgment based upon the statutory employer doctrine where genuine issues of material fact exist as to whether Serfass could establish the defense of a statutory employer at trial?

Background:

Ronald and Jill Oster (Appellants) appeal from two orders which respectively granted summary judgment in favor of Appellees in Appellants’ personal injury action.   In 2016, Serfass and Tower entered a contract whereby Serfass provided general contracting for demolition of a building (the “Tower Building”) and construction of a new building in Allentown (generally, the “Tower Project”). Serfass employed several subcontractors during the project, including Duggan & Marcon, Inc. (“Duggan”) for whom Mr. Oster worked.  In Fall 2016, two pairs of Serfass employees began chipping adhered brick off the neighboring Trifecta Building.  In mid-November 2016, an excavator struck the Trifecta Building. As a result, on November 17, 2016, Serfass commissioned an engineer to inspect demolition activity along the west wall of the Tower Building and the interior and exterior faces of the east wall of the abutting Trifecta Building. The engineer concluded that there was no discernable effect on the adjoining Trifecta Building structure.  On November 26, 2016, Mr. Oster and another Duggan employee took the place of one of the pairs of Serfass employees, picking up where they had left off chipping leftover Tower brick from the Trifecta Building. At some point that day, the chimney of the Trifecta Building unexpectedly collapsed while the Duggan and Serfass employees worked. As a result, multiple bricks fell and struck Mr. Oster in the head, neck, and shoulders, causing injury.  Appellants filed negligence actions against Serfass and Tower.  The trial court granted summary judgment to all defendants.

Holding:

Pursuant to Section 302(b) of the Workers’ Compensation Act, general contractors bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors. In this sense, general contractors have been denominated ‘statutory-employers’ relative to workers’ compensation liability.  Statutory employers under Section 302(b) enjoy a measure of immunity from liability in tort pertaining to work-related injuries for which they bear secondary liability under the Act.   Pennsylvania courts have long applied the following five-factor test to determine if a general contractor was the statutory employer of an injured employee of a subcontractor:  (1) The general contractor was under contract with an owner or one in the position of the owner; (2) The general contractor controlled or occupied the premises where the injury occurred; (3) The general contractor entered a subcontract; (4) The general contractor designated part of its regular business to the subcontractor; and (5) The injured party was an employee of such subcontractor.   In support of the statutory employer determination, the trial court noted the record showed that (1) Serfass was the general contractor on the Tower Project; (2) Serfass directed Mr. Oster’s conduct on the Tower Project site and was responsible for worker safety; (3) Mr. Oster was working on the Tower Project pursuant to a subcontract between Duggan and Serfass; (4) demolition work was part of Serfass’ regular business; and (5) Duggan employed Mr. Oster at the time of his injury.  Additionally, Serfass controlled access to the Tower Project site via a locked gate, Duggan’s employees did not have the access code for the gate, a Serfass employee instructed Mr. Oster on what work to do and where to do it on the worksite, and Mr. Oster took over work that had been started by Serfass employees before his arrival.  Serfass had a contract between it and Tower establishing the parties’ relationship, including “demolition and masonry” as part of Serfass’ job duties.  These uncontested facts provide additional support to the trial court’s finding that no question of fact existed regarding Serfass’ status as Mr. Oster’s statutory employer.

Affirmed.

Concurring/Dissenting Opinion

There was a concurring/dissenting opinion which expressed, in relevant part, disagreement with the manner in which the statutory employer doctrine has been wielded by negligent general contractors to shield themselves from civil liability when they have not taken any steps to ensure the employees of their subcontractors will be adequately compensated (or even insured) for on-the-job injuries they sustain as a result of that negligence.  The opinion acknowledged that the court was bound by existing, controlling statutory and case law to the contrary.  The opinion referred to the five-factor test, as “an irrational relic of a bygone era.”  This opinion advocated for a change in the workers’ compensation law, and the test should require a sixth element — proof that the general contractor either paid the injured worker’s benefits, or prior to the injury, obtained a policy which would have covered the injured employee.

MUNICIPAL LAW – ACT 101 BENEFITS

Megan Diaz on Behalf of the Est. of Raymond Diaz, (Deceased) v. Dept. of General Services

Commonwealth Court of Pennsylvania – Published Opinion

Decided August 16, 2022

Issue:

Whether the Department erred in holding that the connection between Decedent’s work injury and his death was too attenuated to support a claim for Act 101 benefits?

Background:

In 1996, Decedent began working as a police officer for the City of Philadelphia. In 2014 he was injured in a motor vehicle accident in the course of his employment, sustaining a concussion and injuries to his neck and back. Decedent did not return to work after the vehicle accident, and prior to his death was collecting Heart and Lung Act benefits.   In 2016 Decedent fell in his home and injured his left arm.  Decedent underwent surgery to repair the arm and was discharged with a prescription for hydromorphone to treat his post-surgical pain.  Two days later the Decedent was found unresponsive and died at the hospital. The City’s medical examiner reported that the cause of death was Decedent’s intoxication by the combined effects of hydromorphone, oxycodone, and fentanyl therapy for chronic and postsurgical pain.   In 2017, the City of Philadelphia, on behalf of Claimant, applied to the Department for Act 101 death benefits. On April 10, 2019, Eric Decker, Assistant Bureau Director of the Department’s Bureau of Finance and Risk Management, denied the application.

Holding:

Act 101 provides a death benefit to survivors of certain public servants engaged in hazardous occupations. The Act provides two forms of benefits: (1) a one-time cash payment of $100,000, adjusted for inflation, to a spouse or survivors, and (2) lifetime monthly payments to the spouse or survivors in an amount equal to the monthly salary of the deceased.  Act 101 requires a “causal relation between death and performance of duties,” and it is to be construed liberally in favor of its intended beneficiaries.   Claimant’s testimony and documentary evidence established a causal connection between Decedent’s work injury and his death. But for the work injury, Decedent would not have been prescribed pain medication or experienced ongoing balance problems that led to his fall in 2016. But for that fall, he would not have needed surgery or been prescribed hydromorphone. Regardless of whether the fall resulted from his post-concussive syndrome, it is undisputed that but for Decedent’s work injury, oxycodone and fentanyl would not have been present in his bloodstream when he took the hydromorphone, and their fatal combination with hydromorphone would not have occurred. Thus, Decedent’s death was a direct result of the injuries he sustained in the performance of his official duties.   Foreseeability and superseding cause are irrelevant to Act 101 benefits.  Under Act 101, the only relevant inquiry is whether death comes as a result of the performance of the decedent officer’s duties.  But for Decedent’s work injury, the fatal combination of drugs prescribed for his work injury with the hydromorphone would not have occurred.   The medical examiner’s report and death certificate both established that it was the combination of medications that caused his death, not hydromorphone alone. There is no evidence to substantiate the Department’s suggestion that the ongoing use of oxycodone and fentanyl were not related to Decedent’s death.   Claimant established a causal connection between Decedent’s injury sustained in the performance of his duties and his death. Therefore, the Department erred in denying her claim for death benefits under Act 101.  Claimant is entitled to benefits under Act 101.

Reversed.

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

8/1/2022-8/31/2022

CAUSATION

Jones v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-3571-19; 2022 WL 3221966

Decided: 8/10/2022

Background:

Jones worked as a recycling operator for Ocean County. In 2010, Jones was connecting an industrial tub grinder to a truck when he slipped and fell, piercing the palm of his right hand on a bungee cord hook. An MRI reflected no evidence of a tendon tear, but performed exploratory surgery a week after the fall, which reported all the nerves and tendons were intact. A month after the fall when he was exercising at home, Jones reported feeling a tearing in his palm after which he was unable to bend his fingers. Jones resigned from his job and began treating with his own doctors. The Board denied his application for accidental disability retirement benefits because he was not permanently and totally disabled, and there was no evidence that the fall and puncture wound were the direct cause of his symptoms. Jones appealed, and the matter was transferred to the Office of Administrative Law for a hearing.

Medical records indicated that Jones did not report pain in his neck or right shoulder until about a month after the accident. Jones testified he sustained injuries in the accident that were never looked at that have gotten worse over time, and he was in constant pain despite taking no pain medication and receiving no treatment. Jones did not present the testimony of a treating doctor. Instead, each side presented testimony of experts who examined Jones for the purpose of this action.

The Administrative Law Judge (ALJ) found Jones’s expert to be more credible and found the Board’s expert “gave no weight to Jones’s symptoms, the MRI and x-rays, and other medical reports.” The ALJ found that Jones’s disability was total, permanent, and a direct result of the July 2010 accident. The Board rejected the decision of the ALJ and specifically: her findings as to the credibility of the experts who testified; the ALJ’s findings that the Board’s expert gave no weight to Jones’s symptoms, the MRIs and x-rays, and other medical reports; and the ALJ’s summary of the testimony. The Board argued that when the ALJ rejected its experts’ testimony, she found a medically impossible symptomology credible. The Board concluded that Jones failed to produce competent medical testimony that his claimed disability is the direct result of a traumatic event. Jones appealed.

Holding:

The court found that they are satisfied that the Board appropriately rejected the ALJ’s decision finding Jones had established that he was permanently and totally disabled as a direct result of the work injury to his right hand. The court held that while the N.J.S.A. 52:14B-10(c) provides that an agency head may not reject an ALJ’s fact findings as to issues of credibility of lay witness testimony without first determining the findings are arbitrary or capricious, or not supported by sufficient, competent, and credible evidence in the record, that constraint does not extend to the testimony of experts.

The court was satisfied that the Board’s criticisms of the ALJ’s findings of fact are fair, as the ALJ’s summary of the experts’ testimony does not capture the facts underlying the opinion of each expert. The court also found that the ALJ erroneously stated that Jones’s expert concluded his disability was a direct result of the 2010 injury, even though the expert never stated that opinion at the hearing. Because Jones did not establish that his alleged disability was a direct result of the work injury, the court held that the Board was correct to deny Jones accidental disability retirement benefits.

Affirmed.

SUMMARY JUDGMENT

Alleyne v. New Jersey Transit Corporation

Superior Court of New Jersey, Appellate Division

No. A-0753-20; 2022 WL 3348400

Decided: 08/15/2022

Background:

Plaintiff, Anthony Alleyne, appeals from an October 8, 2020 order granting NJ Transit summary judgment and dismissing the plaintiff’s second amended class action complaint. The complaint alleged that NJ Transit’s sleep apnea policy was discriminatorily applied to plaintiff, violating the Law Against Discrimination (LAD) of the Workers’ Compensation Act.

NJ Transit implemented an “Obstructive Sleep Apnea (OSA) Policy – Rail Operations” (Policy) effective April 20, 2017, after a train engineer who suffered from undiagnosed sleep apnea fell asleep at the controls, causing a crash that left one person dead and over 100 injured. NJ Transit therefore requires screening for OSA during routine physical exams mandated by defendant. Employees would be paid for lost wages for scheduled work if they were taken out because they were medically not approved based solely on OSA screening criteria. Plaintiff was a member of the Brotherhood of Locomotive Engineers and Trainmen (BLET), which also required physical examinations and would pay lost wages if the engineer was medically fit to serve at the time he was held out of service.

One of the criteria that makes someone high-risk for sleep apnea is a BMI of 35 or more. NJ Transit considers sleep apnea a medical condition, therefore an employee removed from service for sleep apnea is not reimbursed for costs associated with testing or medical consultations. During plaintiff’s routine physical in October 2016, his BMI was determined to be greater than 35, and he was removed from service pending a sleep study. Plaintiff picked Trinitas Hospital for his sleep study because he felt it would be the quickest. Plaintiff was diagnosed with OSA after the sleep study, completed treatment, and was cleared to return to service on November 9, 2016. He was not reimbursed for costs associated with treatment and testing.

Plaintiff raises 4 challenges on appeal. “Plaintiff argues that the judge erroneously:

1. Determined sleep apnea is not a disability by incorrectly applying the ADA standard, and finding that NJ Transit did not perceive plaintiff had a disability;
2. Applied the burden-shifting framework established in McDonnell Douglas Corp. v. Green, and incorrectly concluded plaintiff failed to establish the policy was discriminatory;
3. Found NJ Transit’s sleep apnea reimbursement policy is ‘inextricably intertwined’ with the CBA and, as such, preempted by the Labor Management Relations Act, notwithstanding defendant’s concession otherwise; and
4. Concluded plaintiff was not required to treat with a specific sleep apnea doctor, barring recovery of reimbursed medical expenses under N.J.S.A. 34:11-24.1.”

Holding:

The court held that the LAD does prohibit discrimination based on an employee’s disability or perceived disability. However, the LAD does not “prohibit the establishment and maintenance of bona fide occupational qualifications” or “prevent the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment.” To establish employment discrimination under the LAD, NJ courts use the burden-shifting analysis in McDonnell Douglas, under which plaintiff must establish a prima facie case of discrimination.

The court agreed that the motion judge applied the wrong standard when ruling plaintiff’s sleep apnea was not a disability under the ADA, as plaintiff did not assert an ADA claim. Plaintiff argued that his BMI was the only reason he was removed from service, and he presented no expert evidence on causation. Plaintiff did not claim that NJ Transit failed to accommodate his sleep apnea, as there is no accommodation that would have permitted plaintiff to safely perform his job.

The court held that summary judgment was properly granted to NJ Transit because even if sleep apnea was a disability under the LAD, plaintiff was removed from service based on a medical condition that posed a serious threat to the health and safety of plaintiff and others, and not because of his physical impairment or perceived impairment. The court held that they do not have to use the McDonnell Douglas framework because plaintiff did not establish a prima facie case of discrimination. The court also was not persuaded by plaintiff that NJ Transit was required to pay for his sleep apnea examination.

Affirmed.

STANDARD OF EVIDENCE

Mack v. Board of Trustees, Teachers’ Pension and Annuity Fund

Superior Court of New Jersey, Appellate Division

No. A-2780-20; 2022 WL 3641728

Decided: 8/24/2022

Background:

Jennifer Mack is a former teacher and school administrator. In August 2014, she began working as an elementary school principal at Delanco. In March 2015, she was informed by the school superintendent that she was not a good fit, and her contract would probably not be renewed. Mack heard rumors that the real reason she was not renewed was her sexual orientation, which was confirmed by a Board member. She began experiencing panic attacks, lethargy, anxiety, and depression, and sought treatment.

In July 2015, after completing her contract with Delanco, she took a job as the student services director for Delran, where she worked until October 2015. Mack testified she left this job because she suffered from depression and could not keep up. Her resignation letter did not mention her illness, and instead stated that the position was not a good fit. Nine days after submitting her resignation letter, she advised that she was taking a medical leave of absence for the remainder of her notice period. Mack began working a six-month part-time position as a site supervisor at the Burlington County Juvenile Detention Facility in January 2016. She was hospitalized in June 2016 and never returned to work.

Mack applied for TPAF ordinary disability retirement benefits in July 2017, and in June 2018, the Board denied her application, finding that she was not totally and permanently disabled at the time she left employment with Delran in October 2015. Mack appealed and a hearing took place in front of an Administrative Law Judge (ALJ). Both parties presented expert witnesses who examined Mack for purposes of litigation. Mack called a Dr. Gollin, who diagnosed her with bipolar II disorder and stated he could not give an exact date as to her disability. The Board called a Dr. LoPreto, who diagnosed her with several mental health diagnoses, but stated that her disability “came crashing down in June 2016” when she had to be hospitalized.

The ALJ concluded that Mack proved she was disabled by October 2015 and she was entitled to ordinary disability retirement benefits. The Board rejected this determination and the ALJ’s credibility findings with regard to the experts. The Board also rejected the ALJ finding that Mack’s employment at the juvenile detention facility was distinguishable from her school administration work because it was less taxing and required less work. The Board also noted that the ALJ did not consider Mack’s resignation letter. The Board therefore denied her application for disability benefits. Mack appealed, alleging that the Board’s decision was not supported by the substantial credible evidence of record.

Holding:

A TPAF member is eligible for ordinary disability retirement benefits if a physician certifies that the member is physically or mentally incapacitated for the performance of duty. The courts have held that the applicant must have left her position due to the disability. The court held that Mack’s reliance on N.J.S.A. 52:14B-10(c) was misguided as it does not apply to expert witnesses. The Board stated specific reasons for crediting the testimony of Dr. LoPreto instead of Dr. Gollin. Furthermore, Dr. Gollin testified that he could not opine as to a specific date or event that triggered her disability, whereas Dr. LoPreto opined that Mack did not become functionally impaired until April 2016 according to her treating doctor, or June 2016, when she was hospitalized.

The court held that the Board’s denial of Mack’s ordinary disability retirement benefits was not arbitrary, capricious, or unreasonable and was supported by sufficient credible evidence.

Affirmed.

RELIEF UNDER RICHTER

Panckeri v. Allentown Police Department

Superior Court of New Jersey, Appellate Division

No. A-2015-19; 2022 WL 3585818

Originally Decided: 3/2/2022

Remanded by Supreme Court: 7/6/2022

Decided: 8/19/2022

Background:

Panckeri was injured during the course of his employment with the Allentown Police Department. He filed both a workers’ compensation claim, and a tort action against the driver and owner of the vehicle that injured him. Panckeri settled both matters. Allentown asserted a lien against Panckeri’s tort settlement under N.J.S.A. 34:15-40 (Section 40). Panckeri challenged the lien against the full amount of permanency benefits and argued that the lien should not include the amount for attorney’s fees and litigation costs for his workers’ compensation claim. The judge of compensation disagreed.

Thereafter, the Richter case was decided by the Supreme Court, which addressed whether recovery under the New Jersey Law Against Discrimination (LAD) was barred by the exclusivity provision of the Workers’ Compensation Act (WCA). The Court affirmed the ability to seek dual relief under both the LAD and WCA. In its opinion, the Court opined that the Section 40 lien was limited to 2/3 the amount paid in workers’ compensation to Richter in medical payments and temporary benefits with the remaining allocated to reimburse Richter’s compensation counsel.

Holding:

This court found that it is clear from the language in Richter that Section 40 was interpreted as preventing employers from being reimbursed for fees that a workers’ compensation claimant paid to counsel out of the compensation award. The court held that viewing the Richter decision through the lens of Section 40 suggests that the split refers to Richter’s potential damages award under the LAD, not her workers’ compensation award. The court held that Section 40 was silent on the treatment of attorney’s fees or litigation costs with regard to a workers’ compensation claim. Section 40 instead deals with the lien and net amount to be paid to a plaintiff when there is a third-party tort action, and the third-party counsel is being paid on a contingent basis pursuant to recovery, whereas the LAD provides for fee shifting if the plaintiff prevails.

The court declined to disturb its decision where there is no binding precedent holding that attorney’s fees and litigation costs arising out of the workers’ compensation claim should be excluded from a Section 40 lien.

Affirmed.

4856-7008-7218, v. 1

PA & NJ – CASE SUMMARIES 6/29/2022 to 7/31/2022

Aug 11, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES

6/29/2022 – 7/31/2022

IMPAIRMENT RATING EVALUATIONS

Joseph Janison v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided June 29, 2022

Issues:

(1) Whether the Board erred by determining that Act 111 can be applied to injuries that occurred before its effective date; and (2) Whether the Board erred by determining that Act 111 is not an unlawful delegation of legislative authority?

Background:

In 2020 Employer filed the Modification Petition seeking to modify Claimant’s WC benefits based on an IRE.   The WCJ granted Employer’s Modification Petition.   Claimant appealed.

Holding:

The Court noted that it has made clear in its prior decisions that the 104-week and credit provisions of Act 111 were explicitly given retroactive effect by the clear language used by the General Assembly. Accordingly, the Board properly determined that Act 111 can be applied to injuries that occurred before its October 24, 2018, effective date.  Further, Act 111 is not an unlawful delegation of legislative authority.  The non-delegation doctrine does not prohibit the General Assembly from adopting as its own a particular set of standards which already are in existence at the time of adoption. That is what the General Assembly did here when it adopted the 6th Edition, second printing, of the AMA Guidelines.  When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will become the law of this Commonwealth. It is not delegating its authority to legislate.

Affirmed

Noel Maldonado v. City of Philadelphia (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 26, 2022

Issue:

Whether Act 111 is unconstitutional?

Background:

Claimant’s left knee was injured during the course of his employment, which resulted in Employer’s issuance of a notice of compensation payable. In November 2019, Employer requested an IRE of Claimant, which happened on February 6, 2020.   The physician-evaluator converted Claimant’s 9% lower-extremity impairment to a 4% whole-person impairment. Based on the IRE findings, Employer filed its petition to modify, which the WCJ granted pursuant to Section 306(a.3), modifying Claimant’s benefit status from total to partial.

Holding:

The retroactive application of Act 111 is not unconstitutional.  If the employer pursues a new IRE under Act 111 following the procedures of Section 306(a.3), it will be entitled to credit for the weeks of partial disability benefits paid prior to the effective date. In this case, the IRE of Claimant was performed after the effective date of Act 111.  The Court has previously rejected the claimant’s constitutional claims, holding that Claimants did not automatically lose anything by the enactment of Act 111, which simply provided employers with a way to change a claimant’s disability status by a different means.  This Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing total disability status.   When the PA Supreme Court struck Section 306(a.2) in Protz II, that provision was not held to be void ab initio, as though it had never been enacted in 1996.

Affirmed

Sheryl Sipes v. UPMC Jefferson Regional Home Health, LP (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 28, 2022

Issues:

(1) Whether Section 306(a.3) of the Act violates Article I, Section 1 or Article I, Section 11 of the Pennsylvania Constitution since it retroactively changes the remedies for an injured worker under the Act and (2) Whether Section 306(a.3) of the Act violates Article III, Section 18 of the Pennsylvania Constitution since it does not provide for reasonable compensation as it measures impairment and not disability?

Background:

Claimant fell and suffered an injury in the course of her employment with Employer.  Employer accepted the work injury through a Notice of Temporary Compensation Payable, which converted to a Notice of Compensation Payable. In 2019 Claimant underwent an IRE, which returned a 14% impairment rating based on the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. Employer filed a Modification Petition requesting Claimant’s disability status be changed from temporary total disability to temporary partial disability (TPD) as of the date of the IRE. Claimant did not present any medical evidence to rebut Employer’s IRE.  The WCJ granted Employer’s petition and modified Claimant’s status to TPD.

Holding:

Claimant’s arguments that Act 111 of 2018, Section 306(a)(3) of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 511.3, is unconstitutional under Article I, Section 1, Article I, Section 11, and Article III, Section 18 of the Pennsylvania Constitution have been previously raised before, and rejected, by the Court. Accordingly, following prior, precedential decisions, the Court rejected Claimant’s constitutional challenges.

Affirmed

APPELLATE PRACTICE

Egan Payne, Sr. v. Americold Logistics LLC (WCAB)

Commonwealth Court of Pennsylvania – Published Opinion

Decided June 29, 2022

Issue:

Whether the Claimant’s appeal to the Board was properly dismissed as untimely filed?

Background:

Claimant sustained a work injury in 2018. Employer issued a Medical-Only Notice of Temporary Compensation Payable accepting the work injury as a lumbar strain. The WCJ determined that the Medical-Only NTCP converted to a Medical-Only Notice of Compensation Payable by operation of law. Thereafter, Claimant filed the Claim Petition alleging that the 2018 low back injury rendered him partially disabled for a period, and thereafter totally disabled. Employer filed a Termination Petition.  The WCJ granted Claimant’s Claim Petition for partial wage loss benefits for a limited period, with a suspension thereafter.  The WCJ also granted Employer’s Termination Petition. Claimant appealed to the Board, and the appeal was dismissed as “not timely received by the Board.”

Holding:

An appeal will be considered filed within the 20-day period if it is mailed to the Board or is entered into WCAIS no later than the twentieth day after notice of a WCJ’s decision.  The Board’s Special Rules provide that an appeal by an aggrieved party “must” be mailed directly to the Board, as opposed to the WCJ or Bureau Petitions Section, within 20 days, on a form provided by the Board. Claimant incorrectly submitted his appeal via the USPS to the WCJ at the Philadelphia Field Office, within the appeal deadline. The Philadelphia Field Office forwarded the appeal to the Board for its consideration, and the Board date-stamped the appeal as received after the appeal deadline.  As Claimant improperly mailed his appeal to the WCJ, instead of the Board and the Board did not receive Claimant’s appeal until over one month after the appeal deadline, the Board properly dismissed Claimant’s appeal as untimely.

Affirmed

PENALTY PETITION

 Joseph Ambrogio v. Pocono Mountain School District & Inservco Ins. (WCAB)

Commonwealth Court of Pennsylvania, en banc – Unpublished Memorandum Opinion

Decided June 29, 2022

Issue:

Whether the WCJ and Board erred in denying the Claimant’s Petition in a case where it was alleged that he was not required to submit his reimbursement request for out-of-pocket expenses on forms intended for medical providers and neither the Medical Marijuana Act nor the Drug Act excuses employers from paying for the reasonable, necessary, and causally related medical expenses for work injuries under the WC Act?

Background:

A Compromise and Release Agreement was executed which resolved the indemnity portion of Claimant’s workers’ compensation claim. Employer remained responsible for the payment of reasonable and necessary medical expenses to treat Claimant’s work injury.  In 2018, after the passage of the Medical Marijuana Act, Claimant sought and obtained certification to use medical marijuana for his injury.  Between August 8, 2018, and December 4, 2019, Claimant submitted requests for reimbursement of his out-of-pocket expenses for medical marijuana to Employer’s counsel, which Employer denied.   Claimant filed a Petition asserting that Employer violated the WC Act by failing to pay reasonable and necessary medical expenses related to Claimant’s work injury.  Claimant agreed that the injury referenced in his medical reports for medical marijuana certification was “long thoracic nerve neuropathy” and that, in the C & R Agreement, his work injury was “described as a right shoulder impingement.” Claimant further agreed that, while he had sent the bills for reimbursement, he had not sent any medical records.  The WCJ issued a decision denying the Petition finding that there was no violation of the WC Act because Claimant had not submitted the reimbursement requests on the requisite forms and, until such reports are submitted, no obligation to pay arises.  The Board affirmed on other grounds, holding that, under the Drug Act, marijuana is a schedule I substance, and it is a federal crime to possess a controlled substance. Accordingly, the Board concluded that neither it nor the WCJ could order reimbursement to Claimant for the medical marijuana and affirmed the denial of the Petition on this basis.

Holding:

Claimant’s accepted work injury, is “right shoulder impingement.” The condition upon which Claimant’s medical marijuana certification and recertification were based was “G54.3 Thoracic root disorders, not elsewhere classified.” Claimant’s accepted work injury is not thoracic root disorder.  Further, “shoulder impingement” is not one of the serious medical conditions identified in the MMA upon which a medical marijuana certification may be issued. Employer is only liable for medical expenses that arise out of Claimant’s right shoulder impingement, and the medical marijuana certification and Claimant’s purchases of medical marijuana did not so arise from the accepted injury, so Employer was not obligated to reimburse Claimant for those expenses.

Affirmed, although with different reasoning than the Board

EXCLUSIVITY

 John Brown v. George Gaydos, an individual, t/d/b/a Gaydos Construction

Superior Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 5, 2022

Issues:

Whether the trial court erroneously concluded that George Gaydos was immune from third-party liability claims as an employer, under the Pennsylvania Workers’ Compensation Act (WCA)?  Whether the trial court erroneously applied the “dual capacity” and/or “co-employee” doctrines when granting George Gaydos tort immunity under the Pennsylvania Workers’ Compensation Act?

Background:

George Gaydos (Defendant) had worked in the contracting field through a sole proprietorship, Gaydos Construction.  Defendant never hired employees through Gaydos Construction and therefore never obtained workers’ compensation insurance. During the period when Defendant was operating his sole proprietorship, he purchased a John Deere skid loader and used the skid loader on Gaydos Construction jobs.  Defendant and Mark Raymond entered into a partnership agreement and formed American Concrete Solutions, LLC (“ACS”).   In addition to Defendant and Raymond, ACS hired additional employees and maintained a workers’ compensation insurance policy. While Defendant had performed various kinds of contracting work, including heating, air conditioning, and masonry through his sole proprietorship, ACS focused exclusively on concrete and paving jobs.  Plaintiff was employed by ACS and working on an ACS paving project. Defendant had brought the skid loader to the job site with the understanding that he was the only individual who was permitted to use it for the job. Plaintiff attempted to enter the skid loader in order to use it for the paving project, but the arm of the skid loader activated, crushing him between the bucket and the top of the cab.  Plaintiff sustained serious injuries, and he subsequently filed a claim for workers’ compensation benefits.  ACS issued a notice of temporary compensation payable, accepted Plaintiff’s injuries as compensable under the WCA, and began paying indemnity and medical benefits to Plaintiff.  Plaintiff filed a third-party complaint, alleging that Defendant was negligent by improperly maintaining the skid loader and failing to supervise or train Plaintiff to use the piece of equipment. Defendant asserted that he was immune from suit under the WC Act. The trial court entered an order granting Defendant’s motion for summary judgment.

Holding:

In light of the fact that Defendant did not directly employ Plaintiff and he did not exert exclusive control over ACS, the court held that there remains a genuine issue of material fact as to whether Defendant was Plaintiff’s “master” under the WCA. Therefore, the trial court erred by granting summary judgment in favor of Defendant on the basis of the employer immunity.  Nevertheless, summary judgement was appropriate based upon the co-employee immunity provision set forth in Section 205 of the WCA, as the Defendant’s alleged liability is based on his negligent conduct as a co-employee.  Co-employee immunity is not confined to rank-and-file workers but extends to the managers and executives of an employer and even individuals with an ownership interest in the employer.  Defendant was entitled to invoke the co-employee immunity bar to Plaintiff’s negligence action.  The evidence of record shows that Defendant was acting in the course of his performance of duties for ACS on the date Plaintiff sustained his injuries. There is no evidence that Defendant performed any work for or was acting on behalf of Gaydos Construction on the date of injury.  Defendant is not disqualified from invoking co-employee immunity in light of his status as a manager of ACS, with an ownership interest in the company.   Defendant’s work under the trade name Gaydos Construction and his use of the skid loader in this other business does not alter the fact that Defendant was performing work exclusively on behalf of ACS on the date of Plaintiff’s injury.

Affirmed

JUDICIAL DISCRETION

 Anwar Singleton v. Dom Leasing, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 5, 2022

Issue:

Whether the Board erred in concluding that the findings in the “Revised Decision,” that his work-related injuries were limited to a soft tissue neck injury, and that he fully recovered from that injury, were supported by substantial evidence?

Background:

Claimant worked as a long-haul truck driver for Dom Leasing, Inc. (Employer). While delivering goods to a Dollar Tree warehouse, he flipped his tractor-trailer. Following the accident, the Pennsylvania State Police cited Claimant for speeding and careless driving and imposed a $2,000 fine. Employer terminated Claimant’s employment.  Claimant filed a Claim Petition, alleging he suffered a nonspecific injury to his left ankle, head, neck, and lower back.  The WCJ granted the Claim Petition in part in a decision which the Board vacated and remanded.  On remand, in the “Revised Decision,” the WCJ credited Claimant’s testimony that his left ankle, shoulder, head, and neck were sore immediately following the accident. However, the WCJ rejected the remainder of Claimant’s testimony, finding he did not suffer a back injury and did not suffer from any ongoing injury.

Holding:

It is not the Court’s role to reopen the debate between the competing medical experts in a case; it is simply tasked with considering whether “substantial evidence” exists to support the WCJ’s findings.  The WCJ’s findings were clearly supported by the testimony of employer’s expert.

Affirmed

Pennsylvania State Police v. Michael Tilton (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided: July 21, 2022

Issues:

Whether Claimant’s ongoing disability is attributable to the recurrence of Claimant’s non-occupational back pain such that the WCJ erred in granting the Review Petition?   Whether the WCJ erred in admitting a pathology report? Whether the WCJ erred in granting Claimant’s Penalty Petitions?

Background:

Claimant sustained a work injury while enrolled as a cadet in the Pennsylvania State Police Academy (Academy). Employer accepted liability for the work injury through issuance of a Notice of Compensation Payable (NCP), which described the work injury as a strain or tear of the lower back and began paying total disability benefits. The parties executed a Supplemental Agreement (First Supplemental Agreement), which suspended Claimant’s wage loss benefits based on his alleged return to work.  Claimant filed a Reinstatement Petition, seeking the payment of wage loss benefits retroactive to the date of his work injury; a Review Petition, requesting an amendment to the description of his work injury to include lumbar disc herniations with radiculopathy and aggravation of a preexisting back condition that required surgical intervention; and a Penalty Petition.   Several months later the parties executed another Supplemental Agreement (Second Supplemental Agreement), in which Employer agreed to reinstate Claimant’s wage loss benefits and to pay statutory interest on all past-due benefits. After Employer failed to make the agreed-upon interest payments, Claimant filed a new Penalty Petition.

Holding:

Employer’s argument that the testimony of Claimant’s witnesses failed to satisfy his burden of proof on the review petition is without merit. Employer’s argument that the evidence indicates that Claimant suffered a recurrence of back pain while rising from bed challenges the WCJ’s credibility determinations. It does not matter if there is evidence in the record that supports findings contrary to those made by the WCJ; the pertinent inquiry is whether there is any evidence to support the findings actually made. Which there was in this case.  Further, Employer’s argument that the pathology report is inadmissible hearsay was rejected.  The courts have long recognized the rule that hospital records are admissible as an exception to the hearsay rule and the Employer has not asserted that the pathology report does not constitute a medical or hospital record under Section 422(b) of the Act.  Further, Employer unquestionably violated the Act when it failed to honor its payment obligations under the Second Supplemental Agreement.  A claimant is entitled to statutory interest on all due and unpaid compensation.   The failure to make do payments need not be intentional to support the award of penalties.  Thus, even if a clerical error is to be blamed, the WCJ did not abuse his discretion in awarding penalties pursuant to Section 435(d)(i) of the Act, 77 P.S. § 991(d)(i).

There was a concurring opinion, which agreed with the outcome of the case, but disagreed that the pathology report was admissible. The concurrence noted that case law regarding hospital records in other contexts instructs that the records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms given.   This exclusion is consistent with the language of Section 422, which lists the terms “treatment” and “diagnosis” separately in Section 422(c), signifying that they denote distinct concepts.  Here, the disputed pathology report is expressly diagnostic in character. Thus, Section 422(b) does not permit its admission as a “record kept by a hospital of the medical or surgical treatment given to an employee in such hospital ….”  Further. although an expert may base his or her opinion on otherwise inadmissible documents, the Rules of Evidence do not permit the admission of a document solely because an expert relied on it.

Affirmed

Guillermo Bautista Capellan v. Ashley Holdings, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 28, 2022

Issue:

Whether there was competent medical and factual evidence in the record to support the WCJ’s finding that no work-related injury had occurred?

Background:

Claimant filed a claim petition alleging that he sustained a low back injury with pain in both legs while lifting furniture for Employer. Claimant sought full disability benefits. The WCJ conducted a hearing during which Claimant testified in person. The WCJ scheduled a final hearing, however, that WCJ retired in the interim, and another WCJ was reassigned the case. Thereafter, and following a conference call, the WCJ received deposition testimony from Claimant and various witnesses.  The WCJ determined that there was no credible evidence that Claimant suffered an injury at work and that Claimant failed to meet his burden of proof by not submitting credible evidence of a causal connection between his physical condition and the alleged incident at work.

Holding:

The burden of proof remained with Claimant throughout the proceedings and never shifted to Employer. Therefore, the testimony that was ignored was effectively irrelevant, and the WCJ’s findings of fact were sufficient to resolve the issues presented in this case.  Section 422(a) of the Act does not require the WCJ to address all of the evidence presented in a proceeding in his adjudication. The WCJ is only required to generally set forth the reasons for making the finding and is only required to make those findings necessary to resolve the issues that were raised by the evidence and which are relevant to making the decision.  Here, the WCJ found, as a matter of fact, that Claimant failed to satisfy his burden of proving that he sustained a work-related injury. This finding, in turn, was based on the WCJ’s credibility determinations.  More specifically, the WCJ rejected the testimony of Claimant and the testimony of his experts. In light of the WCJ’s explanations the Court concluded that the WCJ articulated adequate and objective reasons for deciding not to credit the testimonies of Claimant and his medical experts.

Affirmed

SUBSTANTIAL EVIDENCE OF RECORD

Sheila Lapotsky White v. Johnson Matthey Holdings, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 5, 2022

Issue:

Whether substantial, competent evidence supports the WCJ’s finding that Claimant had fully recovered from her right ankle injury?

Background:

Claimant was employed as a sales coordinator by Employer.  Concurrently, Claimant maintained secondary employment as a waitress. Claimant was injured when she slipped and fell in Employer’s breakroom. Claimant ceased working as a waitress immediately but continued to work for Employer for several months.  Employer acknowledged that Claimant suffered multiple injuries including both physical and psychological, including a right knee contusion, a right ankle sprain, and unspecified injuries to the neck, lumbar, and left knee.  The Claimant underwent an IME which determined that Claimant had recovered from her work injuries, except the injury to her right knee, and that Claimant could return to sedentary work with restrictions.  After considering the evidence, the WCJ determined that Claimant had sustained work-related injuries to her right knee, the cervical and lumbar areas of her spine, right wrist, and right ankle. However, the WCJ further determined that Claimant had recovered from all injuries except the injury to her right knee. For these reasons, the WCJ concluded that Claimant was able to return to her position with Employer, considering the accommodations offered, but remained entitled to partial disability benefits because she could not return to her secondary employment as a waitress.

Holding:

Employer’s expert’s opinion concerning Claimant’s recovery from an injury to her right ankle was not equivocal or incompetent and was based upon substantial evidence of record.  A medical expert’s failure to examine a specific body part is not necessarily fatal, provided he assumes the presence of an injury and finds it to be resolved when he conducts the examination.  Employer’s expert testimony was competent medical evidence that Claimant had recovered from an injury to her right ankle.  The failure of the expert to examine her right ankle specifically does not render the opinion incompetent, where Claimant did not express any complaint regarding her ankle and in referring to an incident report from the day following Claimant’s accident, the expert noted that Claimant had complained of injuries to “both knees, right ankle, right wrist, and low back.” In addition, the expert reviewed an x-ray report that revealed no fracture in Claimant’s ankle. He based his opinions on his physical examination, the records available at the time, and Claimant’s description of her current ailments.

Affirmed

OFFSETS AND CREDITS

 Giles J. Cannon, Inc. v. Gordon Walker (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 18, 2022

Issue:

Whether the Employer is entitled to a credit for Claimant’s Federal Pandemic Unemployment Compensation (FPUC) benefits pursuant to Section 204(a) of the Act?

Background:

Claimant was injured when he tripped on mesh at work and sustained a low back contusion. Pursuant to a stipulation, Employer acknowledged Claimant’s injury and agreed to reinstate his benefits.  The parties remained at an impasse as to what credits Employer should receive against its workers’ compensation obligation. Claimant had received unemployment compensation (UC) benefits pursuant to Pennsylvania law and FPUC benefits pursuant to the CARES Act. Although the parties agreed that Employer should receive a credit for the UC benefits, Claimant disputed Employer’s assertion that Employer should receive a credit for Claimant’s FPUC benefits. In addition, Claimant disputed Employer’s assertion that it should receive a credit for Claimant’s $1,200 federal stimulus payment, also resulting from the CARES Act.  The WCJ concluded that Employer was entitled to a credit for Claimant’s FPUC benefits but not for his $1,200 stimulus payment. Claimant appealed to the Board. On September 15, 2021, the Board issued its opinion and order, which affirmed in part and reversed in part the WCJ’s final decision. The Board reversed the determination that Employer was entitled to a credit for Claimant’s FPUC benefits but affirmed in all other respects.  Employer filed a petition for review in this Court, and now argues the Board erred by concluding that it is not entitled to a credit for Claimant’s FPUC benefits.

Holding:

The purpose of Section 204(a) is to excuse employers from paying duplicate benefits for a single loss of earnings. Disallowing a credit for FPUC benefits would not be contrary to that intent since the federal government paid for FPUC benefits. Further, granting a credit would result in disparate treatment between those who are permitted to collect FPUC by virtue of having lost their jobs, and those who may not because they are burdened with an injury in addition to unemployment. Thus, the employer was not entitled to a credit for the claimant’s FPUC benefits.

Affirmed

SPECIFIC LOSS BENEFITS

 Barbara Daquilante v. Mercy Catholic Medical Center (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 18, 2022

Issue:

Whether the limitation on recovery for disfigurement to disfigurement of the head, neck, and face violates the Remedies Clause and the equal protection principles of the Pennsylvania Constitution?

Background:

Claimant sustained a work injury when she was hit by a truck during the course of her employment with Employer. Claimant filed a claim petition alleging that she had sustained severe scarring of both legs as of August 20, 2012. Employer moved to dismiss the second claim petition because the Act does not authorize specific loss benefits for disfigurement of the legs. By decision and order, the WCJ denied the second claim petition, concluding that the scarring of Claimant’s legs was not compensable. By opinion and order, the Board affirmed.

Holding:

Section 306(c)(22)’s limitation of recovery does not violate the Remedies Clause. Section 306(c)(22) provides for benefits for “serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment.” Article III, Section 18 of the Pennsylvania Constitution expressly authorizes the legislature to limit the remedies available to workers’ compensation claimants, effectively carving out an exception to the Remedies Clause. Such a reading does not deny a claimant the ability to seek total or partial disability benefits for disfigurement of the legs as measured by loss of earning power, it simply does not treat disfigurements to the legs on par with the serious disfigurement to the head, neck, and face as set forth in Section 306(c)(2).   Further, Section 306(c)(22) does not violate the equal protection provisions of the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Pennsylvania Constitution.  The Act confers a social welfare benefit on injured workers and a statutory classification thereunder is consistent with equal protection if it meets the rational basis test. The test is met here because cost containment for workers’ compensation benefits is a legitimate state interest. Employers benefit from not having to pay specific loss benefits for some injuries or higher insurance rates for conditions not included in specific loss provisions, so they can be more competitive. Furthermore, it is possible that the legislature believed disfigurement above the neck to create a greater impediment to employment because it may not be as inconspicuously covered by clothing as injuries below the neck. Whether this is inequitable is a question for the General Assembly, not the Court.

Affirmed

Reed Shaffer Const. and Donegal Mutual Ins. Co. v. Glynn Smith (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 6, 2022

Issue:

Whether the work injury was limited to a specific loss?

Background:

Claimant sustained lacerations to his right middle, ring, and small fingers during the course and scope of his employment with Employer as a full-time carpenter.   Employer issued a Notice of Temporary Compensation Payable acknowledging the injury as laceration cut, scratches, abrasions, superficial wounds, calluses, wound by tearing, and began paying Claimant wage loss benefits.   Employer later filed the Suspension Petition, alleging that, since Claimant suffered specific loss of use of only 50% of his right third, fourth, and fifth fingers, without any injuries or disabilities separate and apart from those three injured digits, Employer was only responsible for paying 58 weeks of specific loss benefits.  Employer has been paying Claimant total disability benefits, but filed the Suspension Petition asserting that, since Claimant’s work injury was limited to a specific loss his WC benefits must cease when the amount of benefits Employer has paid equals the amount to which Claimant would have been entitled for that specific loss.

Holding:

If a claimant suffers an injury that is separate and apart from a specific loss of a body part, that results in a loss of earning power, a claimant may receive compensation under Section 306(a) of the Act, or Section 306(b) of the Act, in addition to benefits for the specific loss of a body part. The WCJ concluded that the Employer failed to sustain its burden of proof in the context of its Suspension Petition based upon the credible testimony of Claimant as well as the accepted opinions and conclusions of Claimant’s expert, finding that there was an injury, separate and apart from the specific loss, that was causing disability.  Employer’s appeal essentially is an attack on the WCJ’s credibility determinations. Because the WCJ’s credibility determinations were clearly supported by the record, the Court may not disturb them.

Affirmed

COMPROMISE AND RELEASE

 Jesse R. May v. Dana Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 21, 2022

Issue:

Whether the C&R Agreements should be voided as a result of fraud, due to the alleged improper use of the 2015 IME, and Claimant was mistaken in his belief that they were not binding, and Employer would continue to remain liable for medical expenses in connection with his 1993 work-related injury?

Background:

Claimant proceeded pro se on petitions to review compensation benefits and to review medical treatment and/or billing.  At all times relevant to the history surrounding these proceedings, Claimant was represented by his former counsel and, with the assistance of said counsel, executed four Compromise and Release (C&R) Agreements in 2003. The C&R Agreements were approved by a WCJ after the WCJ confirmed, at hearings and based on Claimant’s own credible testimony, that Claimant entered the agreements with full understanding of their terms, conditions, and legal significance.

Holding:

The WCJ issued a reasoned decision, supported by substantial evidence, and the WCJ did not otherwise commit an error of law in rendering his determinations.  While the courts may rescind a C&R agreement based on a clear showing of fraud, deception, duress, or mutual mistake, the burden to make such a showing rests with the party seeking to set aside the agreement. The Court agreed with the Board that the WCJ issued a reasoned decision in rejecting Claimant’s testimony as not credible. More specifically, the WCJ determined that Claimant’s current testimony was directly contradicted by the transcript of the 2003 hearing in which Claimant credibly testified that he understood the full legal significance of the C&R Agreements, and, also, the plain language of the C&R Agreements themselves. Moreover, for essentially the same reasons, the WCJ found that Claimant failed to adduce credible evidence establishing that the C&R Agreements should be set aside due to fraud, duress, or deception, or that the parties committed a mutual mistake of fact. In short, the WCJ’s findings in these regards rested solely upon the WCJ’s determination that Claimant’s testimony was not credible. And, because this Court has no basis upon which to disturb the WCJ’s credibility determination, we cannot conclude that the WCJ erred in failing to set aside the C&R Agreements.

Affirmed

TERMINATION PETITION

 William Tobin v. Upper Darby Police Department (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided July 29, 2022

Issues:

Whether the current WCJ improperly disregarded the findings made in an earlier proceeding by a different WCJ; Whether the current WCJ’s findings are supported by substantial and competent medical evidence; and Whether the current WCJ failed to apply the correct standard for terminating benefits under the Workers’ Compensation Act (Act).

Background: 

Claimant sustained a work injury while employed as a police officer for the Employer. Employer accepted liability for the injury through issuance of a Notice of Compensation Payable (NCP), which described the work injury as a lumbosacral sprain and strain and a contusion of the right knee.  Based on the results of a 2013 independent medical examination (IME), Employer filed a petition to terminate Claimant’s benefits, alleging he had fully recovered from his work injury.  That WCJ denied Employer’s termination petition.  Employer filed a second termination petition in 2016.  Claimant denied Employer’s allegations and filed a review petition requesting an amendment to the description of his work injury.  The WCJ granted Employer’s second termination petition and denied Claimant’s review petition.  Based on her credibility determinations, the WCJ concluded that Employer met its burden of proving that Claimant had fully recovered from his June 13, 2012 work injury.   Regarding Claimant’s review petition, the WCJ determined that Claimant was precluded from relitigating the description of his work injury by the doctrines of res judicata and collateral estoppel.   On appeal, the Court found that the WCJ erred in concluding that Claimant was precluded from seeking an amendment to the description of his work injury, as that issue was never raised in the termination proceedings before the first WCJ, who was only required to determine whether Claimant had fully recovered from his work injury.  However, the Court found that the first WCJ did not expand the description of Claimant’s work injury when he credited various opinions that Claimant had not fully recovered.   The Court remanded the matter for a determination on the proper description of Claimant’s work injury, followed by a new consideration of Employer’s second termination petition.  Following remand, the WCJ issued a decision denying Claimant’s review petition and granting Employer’s termination petition.

Holding:

The WCJ has exclusive authority to act as factfinder, determine the credibility of witnesses, and weigh the evidence, and the WCJ’s findings will not be disturbed if they are supported by substantial, competent evidence.   The second WCJ did not err in terminating Claimant’s benefits and she did not disregard the findings of fact made by the earlier WCJ in the first termination proceeding.   Claimant’s argument that the earlier decision can only be read to have expanded the injury was rejected, as Claimant’s additional diagnoses were only referred to by the first WCJ when summarizing expert testimony, whose opinions were credible only insofar as they related to the work injury.  Further the second WCJ did not ignore substantial, competent evidence that Claimant sustained more extensive injuries than those listed on the NCP. The second WCJ ultimately concluded that Claimant’s work injury to his lumbar spine was limited to a sprain and strain. Further she  adequately explained her reason for doing so, which were supported by substantial evidence.  Finally, the second WCJ applied the correct legal standard in granting Employer’s second termination petition.   There was evidence demonstrating a change in his work-related condition from the date of the decision denying Employer’s first termination petition.  The claimant had a normal examination. Claimant advised Dr. McHugh that he no longer took prescription or over-the-counter medication to treat his lumbar symptoms. The record demonstrates the requisite change in Claimant’s condition from the date the first WCJ denied the first termination petition.  Employer presented evidence that sufficiently demonstrated a change in Claimant’s physical condition from the denial of the first termination petition.

Affirmed

NEW JERSEY WORKERS’ COMPENSATION

CASE SUMMARIES

7/1/2022-7/31/2022

STATUTE OF LIMITATIONS

Servais v. Ocean Wholesale Nursery, LLC

Superior Court of New Jersey, Appellate Division

No. A-2988-20; 2022 WL 2720434

Decided: 7/14/2022

Background:

Petitioner/Appellee Donald Servais worked as a nursery manager for 5 years. On January 31, 2017 he and Ocean Wholesale Nursery (the Nursery) entered into an Agreement for $5,000 “in full and complete satisfaction of any and all of his actual and potential claims against the [Nursery].” The Agreement also stated that the consideration would constitute the entire amount of consideration provided to him under the Agreement, and petitioner would not seek any further compensation for and damages, costs, disbursement, or attorney fees in connection with any of the matters encompassed by the Agreement. The Agreement also released the Nursery from any and all actual or potential claims known or unknown which may have arisen or may arise before the date petitioner signed the Agreement.

On October 17, 2018, petitioner filed an employee claim petition, alleging that he had amputated three fingers on his right hand while cutting pallets on January 26, 2016, over 2 years and 8 months prior. On January 18, 2019, the Nursery moved to dismiss the petition, arguing that petitioner failed to file a claim within the 2 year statutory period. Petitioner argued his claim was timely because it was within 2 years of executing the Agreement, and the Agreement was ambiguous in whether the payment was also a partial payment for his work injury.

The judge of compensation conducted a 4 day hearing instead of reviewing the Agreement and making a finding about its ambiguity. The compensation judge denied the Nursery’s motion. The judge concluded he could “only assume” the Agreement included all claims, including the loss of petitioner’s finger, and also held that the $5,000 payment extended the statute of limitations. The parties then proceeded to trial, after which the judge held that petitioner suffered a permanent disability and awarded him $75,000. The judge also found that the $5,000 paid under the Agreement included $1,000 for the loss of petitioner’s fingers, and provided no explanation and factual support for that finding.

The Nursey moved for a stay of judgment pending appeal. The Nursery argues the compensation judge erred by: 1) mischaracterizing the $5,000 separation payment as a workers’ compensation payment; 2) violating their due process rights by determining the petitioner was an employee and not an independent contractor and he had been injured in the course of his employment without holding a trial on these issues; and 3) arbitrarily dividing the $5,000 payment into a $4,000 separation payment and $1,000 work injury payment.

Holding:

The court held that when reviewing the Agreement de novo, there is no ambiguity and the plain language of the Agreement expressly excluded petitioner’s workers’ compensation claim. Additionally, the court held that the judge erred in conducting a 4 day hearing before deciding if the Agreement was ambiguous, and subsequently erred in finding the Agreement was ambiguous after the hearing.

The court further held that a judge cannot assume an agreement includes all claims when it expressly excludes some claims, and the finding that $1,000 of the $5,000 payment was payment for the loss of fingers had no basis in the record. Under the Agreement, petitioner expressly reserved his right to file a workers’ compensation claim, but he just did not do so in a timely manner.

The court held that the Agreement was not ambiguous, and it clearly excluded workers’ compensation claims, therefore the $5,000 payment was not related to any work-related injury and did not toll the two-year statute of limitations.

Reversed and Vacated

LATE NOTICE – EXTRAORDINARY CIRCUMSTANCES

Ugaz v. County of Hudson, et al.

Superior Court of New Jersey, Appellate Division

No. A-2671-20; 2022 WL 2838825

Decided: 07/21/2022

Background:

Plaintiff was employed as a corrections officer at the Hudson County Correctional Facility when he tested positive for COVID-19 on March 25, 2020. Plaintiff was in the hospital for 10 days, where he advised staff that he had been indirectly exposed at work to a person who later tested positive for COVID-19. He was released from the hospital on April 4, 2020.

Plaintiff filed a notice of tort claim on December 31, 2020 and moved for leave to file a late notice in March 2021. The motion for leave to file a late claim included a certification from the plaintiff stating he retained an attorney in May 2020 to pursue workers’ compensation benefits and learned in December 2020 that the family of another officer was pursuing litigation against the county, and it was then he had a basis to believe that his illness was due to the fault of another. The trial court granted the motion on April 27, 2021.

The trial court accepted plaintiff’s certification in combination with the ongoing public health crisis that the statutory threshold for permitting late notice of claim was met. On appeal, defendants assert the court abused its discretion in finding extraordinary circumstances existed to allow plaintiff to file a late notice of tort claim.

Holding:

The court stated that a trial court may grant a motion for leave to file a late notice if there are “sufficient reasons constituting extraordinary circumstances” for the failure to timely file a notice of claim within the 90 day statutory period. Furthermore, the Legislature intended the “extraordinary circumstances” to be a demanding standard.

The court distinguished several cases where the extraordinary circumstances standard was met, and distinguished the instant case stating that plaintiff did not present any facts to demonstrate a situation so ‘severe, debilitating, or uncommon’ that would prevent him from contacting an attorney and pursuing a claim. The court found that on the contrary, plaintiff was aware that he contracted COVID-19 at work and retained counsel in May 2020 to procure workers’ compensation benefits.

The court held that the instant circumstances did not meet the threshold for permittance of a late notice, and his conduct in the 90 days following his diagnosis confirms he could have contacted an attorney. The court held that the trial court misapprehended the applicable law by finding there were sufficient reasons to permit the late filing, as the statute and caselaw require sufficient reasons constituting extraordinary circumstances, which do not exist in this matter.

Reversed

Waddell  v. County of Hudson, et al.

Superior Court of New Jersey, Appellate Division

No. A-2661-20; 2022 WL 2838829

Decided: 7/21/2022

Background:

Bernard Waddell contracted COVID-19 in March 2020, while working as a corrections officer in the Hudson County Correctional Center. He died on April 1, 2020. Plaintiffs filed a notice of tort claim in November 2020 and moved for leave to file a late notice in March 2021. Bernard’s wife, Sheliah, presented a certification stating that Bernard’s death certificate confirmed he died of viral pneumonia secondary to COVID-19, and that from mid-April until the end of May 2020, her son was sick with COVID-19, and she was grieving the death of her husband. She further certified that she did not consider that her husband’s death might have been due to the fault of another until later, and she retained counsel in October 2020.

The defendants presented a certification from a claims analyst for the third-party administrator of the County, which stated that he opened a workers’ compensation claim for Bernard on April 2, 2020 and he had communicated with Sheliah in July regarding her husband’s compensation claim and advised her that his timecard revealed he was exposed to co-workers and inmates who tested positive for COVID-19. Sheliah received reimbursement for funeral expenses as well as dependency benefits. Defendants also presented a certification from an employee of the County Finance Department, which stated that she assisted Sheliah in May 2020 and for several months following helping her to obtain several types of benefits available, including the federal Public Safety Officers’ Benefit Program.

The court granted plaintiff’s motion, stating that they accepted her certification in combination with the ongoing public health crisis as proof that sufficient reasons were shown for failure to timely file the notice of tort claim. Defendants appealed, asserting that the court abused its discretion in finding extraordinary circumstances existed to permit plaintiffs to file a late notice of tort claim.

Holding:

The court stated that a trial court may grant a motion for leave to file a late notice if there are “sufficient reasons constituting extraordinary circumstances” for the failure to timely file a notice of claim within the 90 day statutory period. Furthermore, the Legislature intended the “extraordinary circumstances” to be a demanding standard.

The court distinguished several cases where the extraordinary circumstances standard was met, and distinguished the instant case stating that plaintiff did not present any facts to demonstrate a situation so ‘severe, debilitating, or uncommon’ that would prevent her from contacting an attorney and pursuing a claim. The court stated that she was not incapacitated, confined to a hospital, or under a mental impairment as seen in other cases, and though her son was sick, she did not say he was hospitalized or gravely ill.

The court stated in the weeks following her husband’s death, Sheliah had contact with county employees and workers’ compensation claims representatives regarding potential benefits related to her husband’s death and she was aware he was exposed to COVID-19 while working for the county, which led to his death.

The court held that the instant circumstances did not meet the threshold for permittance of a late notice, and in the 90 days following her husband’s death Sheliah could have contacted an attorney from her home, as she eventually did. The court held that the trial court misapprehended the applicable law by finding there were sufficient reasons to permit the late filing, as the statute and caselaw require sufficient reasons constituting extraordinary circumstances, which do not exist in this matter.

 Reversed

PA & NJ – CASE SUMMARIES 6/1/2022 to 6/30/2022

Jul 20, 2022

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
6/7/2022 – 6/29/2022

EXCLUSIVITY

Samantha Riemenschneider, Admin. of the Estate of David Scott Macleary v. D. Sabatelli, Inc. & Anthony Sabatelli
Superior Court of Pennsylvania – Published Opinion
Decided June 7, 2022

Issue:

Whether the trial court erred as a matter of law in granting Employer’s Preliminary Objections as to the Exclusivity Provision of the Workers’ Compensation Act?

Background:

David Scott Macleary sustained fatal injuries when the brakes failed on a dump truck he was operating, and it began to roll.  Macleary was acting at the time within the course and scope of his employment with the Employer and received workers’ compensation benefits through his employer on the day he died.  Samantha Riemenschneider, as the administrator of the Estate of David Scott Macleary, instituted this suit asserting counts for negligence and wrongful death, naming employer as a defendant. Riemenschneider argued that her wrongful death suit was permissible, notwithstanding the Workers’ Compensation Act’s exclusivity provision, because she was not within the class of individuals entitled to bring a claim under the Act.  She pointed out that children of decedents are eligible for workers’ compensation benefits only if they are “less than 18 years of age, are disabled until the period of disability ends, or, if the child is in school, until the child reaches the age of 23,” and none of those conditions applied here. The trial court determined that the exclusivity provision barred this suit and sustained the preliminary objections.

Holding:

The Court engaged in statutory interpretation to determine the applicability of the exclusivity provision. Riemenschneider did not allege that any language of the Act is ambiguous and should be construed in her favor, much less that the plain language of the Act permits her suit.   The Act plainly states that it provides compensation to children of deceased employees, albeit only if they meet certain requirements.  Riemenschneider’s claim, as the child of a deceased employee, falls squarely within the purview of the Act. However, the exclusivity provision bars the instant suit.  The employee received benefits under the Act on the day of his death. In contrast, Riemenschneider is not an employee, and does not belong to a “class of employees,” but to a potential class, whom the Act purposefully excludes from recovery.   The limitation on beneficiaries is one of the tradeoffs embodied in the Act.

Affirmed

IMPAIRMENT RATING EVALUATIONS

Vincent Sicilia v. API Roofers Advantage Program (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Published Opinion
June 7, 2022

Issue: 

Whether the WCJ erred as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of Claimant’s work injuries?

Background:

Claimant sustained work-related injuries in 1999, when he fell from a ladder on a worksite. Employer accepted Claimant’s work injuries as a lumbar strain and a left knee contusion. The work-related injury was later expanded to include additional physical and psychological diagnoses.  The work injury was again expanded on additional occasions thereafter.  In October 2019, Employer filed a petition seeking a modification of Claimant’s indemnity benefits from total to partial as of August 1, 2019, based upon an Impairment Rating Evaluation (IRE), which considered the accepted work-related injuries.  The result was 25% total impairment.  However, the clinical summary portion of the IRE report included diagnoses secondary to the accident beyond those described in the prior decisions of the assigned WCJs.  Employer asked the IRE reviewer for an addendum to the report including the whole person impairment rating based upon the diagnoses listed in the clinical summary. The IRE addendum assigned a whole person impairment rating of 45%, putting claimant past the 35% threshold for modification.  The WCJ found that the later injuries, that had not been subject to review in court could not be considered.

Holding:

The majority, in a 2-1 split Commonwealth Court decision, determined that a workers’ compensation judge’s review of a claimant’s impairment rating evaluation should have considered work injury-related diagnoses that the claimant received after his initial injury determination. The decision reinstated claimant’s total disability benefits, reversing the Board which affirmed the WCJ’s modification of his compensation status to partial disability.  Under the majority’s interpretation, the Pennsylvania Supreme Court’s decision in Duffey II grants physician-evaluators a large amount of discretion in establishing what diagnoses stem from work-related injuries and therefore supports their reversal of the WCAB decision.  Claimant argued this precedent disputes the WCJ’s determination that the prior injury descriptions in previous WCJ decisions dictate what may be considered in the IRE.  The Commonwealth Court majority agreed, holding that the WCJ’s analysis did not grant the evaluating physician adequate discretion. The Court held that there is no authority supporting the argument that such adjudications have preclusive effect on the IRE physician-evaluator.  The only reason proffered for discrediting the additional diagnoses was that they had not been previously found by other WCJs. The WCJ erred as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of Claimant’s work injuries.

The dissenting judge argued that the WCJ had been correct to discount later diagnoses since impairment evaluations hinge on an adjudicated injury being static.  Further, the dissent disagreed with the idea that the judge improperly discounted parts of the doctor’s findings, arguing that the judge decided that the doctor’s testimony regarding the later injuries was not credible at that the WCJ’s express discrediting of the IRE physician’s testimony supports her ultimate decision to grant employer’s modification petition.

Reversed and remanded by a 2-1 Majority
Angela DiPaolo v. UPMC Magee Women’s Hospital (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided June 13, 2022

Issue:

Whether Act 111’s provisions allowing employers to credit previously paid benefit weeks violate either due process or due course of law principles contained in the Pennsylvania Constitution?

Background:

Claimant sustained a work-related injury in 2008. Employer issued a Notice of Compensation Payable and began paying Claimant temporary total disability (TTD) benefits.  In 2011, Claimant underwent an IRE which returned a 6% impairment rating based on the Sixth Edition of the AMA Guides. Employer filed a Notice of Change in Benefit Status based on the 2011 IRE, and Claimant’s benefit status was changed to temporary partial disability (TPD) as of the date of the 2011 IRE.  Based on the Protz cases, Claimant sought reinstatement of her TTD status, which was granted as of February 19, 2016.  Thereafter, the General Assembly enacted Act 111 of 2018.  Based on Act 111, Employer requested that Claimant undergo another IRE, which she ultimately did in 2019. After the 2019 IRE returned an impairment rating of 23% Employer filed a modification petition seeking to change Claimant’s status to TPD.

Holding:

The due process requirement with respect to both prospective and retroactive aspects of legislation is a legitimate legislative purpose furthered by rational means. A vested right in this context is something more than a mere expectation based upon an anticipated continuance of existing law. It must have become a title legal or equitable to the present or future enforcement of a demand, or a legal exemption from a demand made by another.  Due course of law protections arise from Article I, Section 11 of the Pennsylvania Constitution and has a distinct meaning in the Remedies Clause and provides an independent guarantee of legal remedies for private wrongs by one person against another, through the state’s judicial system.  The Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing TTD status.  The claimant is not without recourse, because Act 111 specifically provides that a claimant placed in partial disability status based on an IRE may challenge the change in his or her status by either presenting a subsequent IRE reflecting a 35% or more impairment rating or establishing through litigation that his or her earning power has decreased.   Act 111’s credit provisions clearly express an intent to apply to prior-injured claimants.  An accrued cause of action and an award of workers’ compensation benefits are not equivalent; workers’ compensation benefits, even once awarded, have always been subject to modification. Moreover, the Court explained that the amendment did not violate due process principles because after balancing the interests of claimants and employers, the amendment amounted to a rational means of implementing a legitimate legislative purpose.  Claimant has not established a vested right in her post-Protz-pre-Act 111 TTD status. She therefore has not met the requirement for relief under either due process or due course of law principles.  Further, Act 111’s restoration of the IRE process does not violate the “reasonable compensation” aspect of Article III, Section 18 of the Pennsylvania Constitution.

Affirmed

Martin Harold v. Abate Irwin, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 13, 2022

Issue:

Whether Act 111 violated Claimant’s Due Process rights or the “reasonable compensation” requirement under the Pennsylvania Constitution?

Background:

Claimant sustained a work-related injury. Claimant underwent an IRE on November 12, 2019 (2019 IRE), which returned a 10% impairment rating based on the Sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Employer filed a modification petition seeking to change Claimant’s benefit status from TTD to TPD as of the date of the IRE. Claimant raised and preserved constitutional challenges to Act 111. The WCJ granted Employer’s petition and modified Claimant’s status to TPD as of the date of the 2019 IRE. The Board affirmed.

Holding:

A vested right in this context is something more than a mere expectation based upon an anticipated continuance of existing law. Claimants did not automatically lose anything by the enactment of Act 111, which simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence. The claimants’ interest in having his claims adjudicated based on the state of the law before the amendment was enacted was not a vested right, but rather a mere expectation based upon an anticipated continuance of existing law. The Courts have never held that any IRE preceding the Protz cases was automatically erased in its entirety, including the weeks of benefits paid by employers for claims arising prior to Act 111.  Claimant has not established a vested right in his post-Protz-pre-Act 111 TTD status. He therefore has not met the requirement for relief under either due process or due course of law principles.  Further, IREs are generally viewed as a more cost-efficient method of modifying a claimant’s benefits compared to alternatives.  The Court has not found IREs to be inherently unreasonable as an alternative means for employers to modify a claimant’s status from TTD to TPD, and the Courts have previously rejected arguments that IREs are inherently unreasonable because they do not depend on a showing by an employer of a claimant’s resumed earning power. Act 111’s provisions granting employers credit for previously paid benefit weeks does not violate either due process or due course of law principles. Further, by reenacting the IRE process, Act 111 does not violate the “reasonable compensation” aspect Article III, Section 18 of the Pennsylvania Constitution.

Affirmed

MODIFICATION/TERMINATION OF BENEFITS
Franklin MONTANO v. ADVANCE STORES COMPANY, INC (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided June 27, 2022

Issue:

Whether the work injury has again affected claimant’s earning ability, or was he terminated for “bad Faith” willful misconduct?

Background:

Claimant sustained injuries to his back and right shoulder when boxes of windshield washer fluid fell on him while in the course and scope of his employment as a general laborer in the warehouse of Employer. Claimant returned to work in a modified-duty position as a trainer with Employer. Employer issued a medical-only Notice of Compensation Payable (NCP) for a work-related injury of an upper back area strain/tear with noted right shoulder pain. Claimant was later discharged from his employment with Employer based on his job performance as a trainer. Claimant filed the Reinstatement Petition seeking the reinstatement of temporary total disability (TTD) benefits for his work-related injuries because he was terminated while on modified duty because of work injury related medical restrictions.  Both Claimant and the employer’s witness confirmed that claimant would have continued to work had he not been fired.  The Employer’s witness testimony and an HR Report outlined the bases for Claimant’s termination, i.e., that he continued to submit incomplete paperwork and signed off that they were done, and after several conversations, thereby falsifying information.  The WCJ found the Report to be credible evidence and it constitutes substantial competent evidence supporting the WCJ’s finding of bad faith on Claimant’s part underlying the termination of his employment with Employer.   The WCJ found that Claimant was totally disabled for a period of time, due to his work-related back surgery after which he was capable of performing the light-duty job for Employer from which he was legitimately discharged.

Holding:

A claimant who has established a partial disability due to a work-related injury should generally continue to receive partial disability benefits by virtue of his loss in earnings capacity, even though subsequently discharged from employment, because the loss in earnings capacity remains extant. Whether the same claimant may receive total disability benefits depends upon whether the employer can demonstrate that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant’s lack of good faith.  Employer’s purported failure to follow its progressive discipline policy does not compel the award of TTD benefits because it in no way affects the WCJ’s finding of bad faith on Claimant’s part.  The unemployment concept of “willful misconduct” is not the standard in workers’ compensation, which goes by the lesser “lack of good faith” standard, which Employer was able to meet in this case.   Claimant may not collaterally attack the WCJ’s determination of his bad faith precluding the award of workers’ compensation benefits under the Act by injecting standards applicable to the award of unemployment compensation benefits under the Unemployment Compensation Law.   Employer’s purported failure to follow its progressive discipline policy does not affect the WCJ’s determination, supported by substantial competent evidence, that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant’s lack of good faith.

Affirmed

Overbrook Golf Club v. Mark Scott (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 17, 2022

Issue:

Whether the WCJ and the Board erred in determining that Claimant’s TTD benefits should be reinstated effective the date of the claimant involuntary discharge from employment?

Background:

The WCJ modified Claimant’s benefits to temporary partial disability benefits based on available light duty work from July 25, 2017, through November 18, 2017. The WCJ found that the modified duty job ceased to be available on and after November 19, 2017, when Employer terminated Claimant’s employment. Accordingly, the WCJ reinstated Claimant’s TTD benefits as of that date. Importantly, the WCJ found that claimant’s expert credibly testified that as of November 13, 2017, Claimant was not physically able to perform any type of work, including the position offered by Employer on July 25, 2017. That position ceased to be available when Employer terminated Claimant’s employment on November 19, 2017.

Holding

The WCJ and the Board did not misapply the burden of proof on the petitions and did not err in reinstating Claimant’s benefits effective November 19, 2017. Once a claimant has refused an available job in bad faith, the employer’s obligation to show job availability ends and the claimant must show a worsening of his medical condition to be granted a reinstatement to total disability.  In the present case, the WCJ did not base Claimant’s reinstatement on claimant’s expert’s credited opinion. Rather, the WCJ based the reinstatement on the lack of availability of the position, which, in and of itself, does not support a restoration of Claimant’s TTD benefits. Therefore, the WCJ applied the wrong burden of proof in the reinstatement of Claimant’s TTD benefits.  However, the WCJ had a basis for reinstating Claimant’s TTD benefits on the basis of claimant’s expert’s credited testimony that Claimant was unable to perform any work. Thus, even though the wrong burden of proof was applied, the court affirmed the reinstatement of Claimant’s TTD benefits because Claimant proved a worsening of his condition.  Further, the WCJ’s finding that claimant’s expert was credible was not inconsistent with the WCJ’s reinstatement of benefits as of November 19, 2017, rather than November 13, 2017, the date claimant’s expert took Claimant off work. There is no dispute that the WCJ reinstated Claimant’s benefits on the basis of claimant’s expert’s credited testimony. As of November 13, 2017, Claimant was not able to work at any job.  This credited opinion established that Claimant’s condition worsened and that he could no longer work in any position as of November 13, 2017.

Affirmed

Mary Ellen Borrell v. Faith Christian School Assoc. of Monroe Co., Inc. & Brotherhood Mutual Insurance Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided June 24, 2022

Issues:

Whether substantial competent evidence supported the WCJ’s finding that Claimant’s continuing symptoms are attributable to arthritis that existed prior to Claimant’s work injury?  Whether the employer’s expert failed to address the accepted injury?

Background:

Claimant sustained a work-related injury when she stepped on a ball and twisted her left knee.  Employer issued a medical-only notice of temporary compensation payable, accepting Claimant’s injury as “a left knee strain.”  Employer subsequently filed a Termination Petition, contending that Claimant had fully recovered from her work-related injury as of the date of its independent medical examination (IME).  Employer’s expert concluded that the work-related injury caused a left-knee medial meniscal tear, and thus, the arthroscopic surgery was a work-related surgery. He pointed out that, at the time of her surgery, Claimant had fairly substantial arthritic change in the knee, but that the work injury did not cause any exacerbation of arthritis of a material nature, and that any future treatments that Claimant receives to her left knee would not be attributable to her work-related injury.  The WCJ determined that Employer sustained its burden of proving that Claimant had fully recovered from her work injury.

Holding:

Employer’s Termination Petition was based on its expert’s opinion that Claimant had fully recovered from a left knee medial meniscal tear. The termination of Claimant’s benefits was not based on the grounds that Claimant had a continuing disability that was no longer work related, but on the basis that Claimant’s work-related injury had ceased and, therefore, that she was no longer disabled for purposes of the Act.  The record contains substantial competent evidence to support the WCJ’s finding that Claimant’s continuing left knee pain is attributable to arthritis that existed prior to Claimant’s work injury.   Because the WCJ found that Claimant’s left knee pain was not related to her work injury based on the credited medical evidence, termination of benefits was proper.  The employer’s expert’s opinion that Claimant had fully recovered from a left knee medial meniscal tear sufficiently encompassed the accepted injury, a left knee strain, because it is much more severe, medically speaking, than the accepted injury. Therefore, it was not improper to grant the termination.

Affirmed

JUDICIAL DISCRETION

Kurtis Stover v. Don’s Performance Corner, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 27, 2022

Background:

Claimant was allegedly injured on his first day of work with the employer when, while lowering a transmission, the jack gave out, causing the transmission to fall and momentarily pin his head against the frame of the Jeep. He was able to extricate himself, sustaining a laceration and other injuries.  Claimant went to lunch after this incident and upon his return, employer fired him. Employer’s witness testified that Claimant did not mention any workplace injury until 8 days later, when he called to report a possible concussion and back injury.   Claimant’s expert opined that Claimant’s alleged work injury resulted in an aggravation of a pre-existing lower back condition, although he admitted that he had no knowledge of Claimant’s medical history or any past treatment he had received for chronic back problems; his sole basis for his opinion was Claimant’s self-described medical history and account of the work injury. He conceded that, if Claimant misrepresented the mechanism of injury, he would be compelled to change his opinion on causation.   Employer’s expert conducted a comprehensive review of Claimant’s medical history, as expressed in various hospital records and notes of treatment. He also physically examined Claimant and concluded he possessed normal strength and range of motion for his age, with the exception of some limitation to his back extension.   He opinioned Claimant did not suffer any work injury.  The WCJ concluded that no compensable work injury was sustained.  The claimant filed the appeal pro se.

Issues:

Whether the WCJ’s credibility determinations were reasoned within the meaning of Section 422(a) of the Act?

Holding:

Claimant devoted a substantial portion of his brief to asserting new evidence and an array of new causes of action against Employer.   The Court could not consider new theories of relief or evidence not presented in the proceedings below.  The WCJ’s decision was a reasoned one.  The WCJ explained why he found Claimant incredible. These observations suffice to support the WCJ’s rejection of Claimant’s testimony.   Further, when a witness testifies live before a WCJ, the WCJ may deem that witness credible or incredible based on observations of the witness’s in-person demeanor.

Affirmed

HEARING LOSS
Dennis Carlson v. General Electric Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 28, 2022

Issue:

Whether the WCJ erred in crediting employer’s expert’s opinion that Claimant’s hearing loss was not occupationally induced because it developed in the latter part of his 40-year career with Employer?

Background:

Claimant filed a claim petition alleging that he suffered a compensable hearing loss because of exposure to hazardous occupational noise that caused a binaural hearing loss of more than 10%.   Employer denied that Claimant’s hearing loss was work related, alleging that Claimant had not been exposed to noise levels in excess of 90 decibels, at least 3 days a week, for 40 weeks in a 12-month period.   By decision dated July 27, 2020, the WCJ found that Claimant did not suffer occupationally induced hearing loss. The WCJ credited employer’s expert’s testimony that Claimant’s hearing loss was not occupationally induced because it developed in the latter part of his 40-year career with Employer.

Holding:

The WCJ did not allow an age-related deduction from Claimant’s binaural hearing loss, in contravention of the law.  There is no presumption that Claimant’s binaural hearing loss in excess of 10% was due to his exposure to occupational noise. Claimant had the burden to establish a causal relationship between his hearing loss and his occupational noise exposure. Here, the WCJ accepted Employer’s medical evidence, and rejected Claimant’s medical evidence, and the WCJ is the arbiter of fact and witness credibility.  To meet his burden, a claimant must prove that his hearing loss was caused by his employment. Claimant’s hearing loss did not appear until 27 years after Claimant was exposed to the most hazardous occupational noise while working in Building.   Further, Claimant’s hearing loss accelerated in the last 3 to 5 years of employment when his occupational noise exposure was reduced. The WCJ concluded that Claimant’s hearing loss was not caused by noise exposure at work but did not find an age-related hearing loss.  While Claimant did establish that he had binaural hearing loss, the WCJ rejected Claimant’s causation theory, thereby precluding Claimant from meeting his burden.  The WCJ’s credibility determination was not arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.    The WCJ has exclusive power over questions of credibility and weight to assign the evidence. Substantial evidence in the record supports the WCJ’s findings of fact.

Affirmed

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
6/1/2022-6/30/2022
COVERAGE

Garden State Equity 1 LLC, et al v. United States Liability Insurance Co.
Superior Court of New Jersey, Appellate Division
No. A-1824-20; 2022 WL 1816245
Decided: 6/03/2022

Background:

Plaintiffs, Garden State Equity 1 LLC (Garden State) and New Town Investments, LLC (New Town) appeal from two February 1, 2021 orders which granted defendant, United States Liability Insurance Co. summary judgment.

An employee of one of New Town’s contractors was severely injured while working on one of plaintiff’s properties. The employee filed a demand for workers’ compensation benefits against New Town, which was forwarded to the defendant, and then denied. Defendant cited a policy exclusion (L-500) which applied to all claims and suits by any person or organization for damages because of bodily injury, including damages for loss of services and care, and “any claim under which insured may be held liable under any Workers’ Compensation Law.” The injured employee sued plaintiffs and sought damages for his injuries. Defendant continued to deny coverage. The parties both filed summary judgment motions following discovery.

Plaintiffs argues that L-500 did not apply because there were two more specific exclusions, L-278 and L-532, which they argue were controlling and restored coverage excluded under L-500. Plaintiffs argued that the court should read the policy holistically and that a lay person reading the policy would not know there was no coverage for the worker’s injury. Judge Beacham rejected plaintiff’s arguments and found that L-500 was the more specific exclusion, and dismissed plaintiff’s waiver and estoppel arguments.

Holding:

The court stated that pursuant to the Cypress Point case, courts examine insurance policies to determine whether it provides an initial grant of coverage, and if so, whether any of the exclusions precludes coverage. If an exclusion applies, the court then determines whether an exception to an exclusion applies to restore coverage. The court stated that “[a]n insurance policy will not be deemed ambiguous merely because the parties offer conflicting interpretations.”

The court held that the L-500 exclusion clearly applied to the claims asserted by the injured employee and that the policy was not ambiguous. Therefore, the court held that summary judgment was properly granted in favor of the defendants.

Affirmed

CREDIBILITY DETERMINATIONS

Lindell v. W.H. Industries, Inc.
Superior Court of New Jersey, Appellate Division
No. A-1815-20; 2022 WL 1763624
Decided: 06/01/2022

Background:

Laurie Lindell (petitioner) appeals a decision dismissing her workers’ compensation claim petitions with prejudice. Petitioner worked for W.H. Industries beginning in 1999. She worked in an office with duties related to accounts payable, HR, workers’ compensation, imports and exports, and purchasing. These tasks required use of a calculator, computer, and making notes on paper.

In 2001, petitioner was hit by a car, causing her right hand to go through the windshield. She was diagnosed with right hand reflex sympathetic dystrophy (RSD). In 2009, petitioner filed two claim petitions alleging she had injured her right hand at work in accidents on June 27, 2007 and September 14, 2007. She then filed another claim petition, alleging she injured her right hand at work on August 12, 2009. She stopped working after this incident and alleged the incident aggravated her RSD. Each workplace incident involved the steel door that separated petitioner’s office from “the floor” being opened onto her right hand. Respondent admitted all three accidents arose out of the course of employment and paid all authorized medical bills.

On September 15, 2015, petitioner was hit by a car while riding her bicycle. Despite having an appointment with her doctor, Dr. Freedman, 8 days later, she did not tell him about the bike accident. In 2016, petitioner had a cervical fusion and a lumbar surgery. Again, she did not tell Dr. Freedman about these surgeries even though she saw him 8 days after the neck surgery and the day before the lumbar surgery. Dr. Freedman concluded that petitioner on numerous occasions had filled prescriptions for controlled substances from other providers while he was treating her, and had he known about the other prescriptions, he would have reduced or eliminated the medications that he prescribed.

Dr. Freedman was called as a witness, as well as petitioner’s expert, neurologist Stephen Dane. Dr. Dane testified that when he saw the petitioner in 2017, she did not tell him about the surgeries she had after the bike accident, and many of her complaints could have been a result of the cervical fusion. Respondent used a neurologist, Charles Effron, as its expert. Dr. Effron concluded that petitioner did not have RSD and there was no permanent disability as a result of the 2009 work injury.

The compensation judge dismissed all three claim petitions, finding the petitioner not credible, and going into great detail about her reasons for that determination. The judge found petitioner’s failure to disclose the bike accident to Drs. Freedman, Dane, and Effron, coupled with lying on the stand about never having prescriptions filled by doctors other than Dr. Freedman irreparably damaged petitioner’s credibility.

The judge dismissed the claim petitions regarding the 2007 work incidents because the entirety of petitioner’s testimony was about her functional status after the 2009 accident, and all of the permanency evaluations took place after the 2009 accident. The judge dismissed the claim petition regarding the 2009 accident, stating that not one doctor opined petitioner was totally disabled, and she presented no expert testimony that she was incapable of working. Petitioner appealed.

Holding:

The court held that because the judge’s decision was supported by sufficient credible evidence present in the record, it affirmed. The court stated it would not disregard the judge’s assessment of petitioner’s credibility, especially in a case in which the treating doctor and expert witness relied extensively on petitioner’s subjective complaints.

The court stated that petitioner was really arguing that because respondent paid her medical bills in connection with the work accidents and made temporary disability payments after the 2009 work accident, the judge had to determine that she was partially permanently disabled as a result of those accidents. The court held that all medical treatment provided under the statute is without prejudice and does not mean there is a partial permanent disability.

Affirmed

ABUSE OF DISCRETION

Ripp v. County of Hudson
Superior Court of New Jersey, Appellate Division
No. A-2972-20; 2022 WL 1815296
Decided: 6/03/2022

Background:

Louis Ripp injured his back in a work accident on February 11, 2013 while he worked for the County of Hudson as an assistant chief engineer/boiler operator. Ripp applied for workers’ compensation benefits, and received temporary disability benefits and medical benefits, before he was declared permanently disabled in 2016.

On January 26, 2021, the judge of workers’ compensation (JWC) entered an order approving a settlement of $365,100. It is undisputed that the County was to pay him $173,480 within 60 days of the entry of the Order. Ripp filed a motion to enforce the Order, as the County had not made the required payments. Ripp did receive the full payment amount due to him on April 12, 2021, sixteen days late. Ripp requested simple interest on the payment and an additional 25% assessment for unreasonable payment delay. The JWC ordered the County to pay an additional $43,370 within 60 days finding that the delay was unreasonable. The County now argues that the JWC abused her discretion in imposing an excessive assessment under the circumstances.

Holding:

The court held that the legislature in N.J.S.A. 34:15-28.2 chose not to specify what is a presumptively unreasonable delay in payment of settlement proceeds under an order entered by a JWC. The court then stated that the legislature intended to leave to the JWC’s discretion what constituted an unreasonable payment delay by leaving it undefined in the statute.

The court held that it was legal error for the JWC to consider litigation delays in deciding an appropriate remedy under the statute as no payments were due to Ripp until the JWC entered the order. The County did not dispute that it failed to pay Ripp in a timely fashion, but gave various excuses for that delay, which the JWC considered, and to some degree accepted as reasonable. Nevertheless, the JWC imposed the maximum statutory penalty for a delay of 16 days.

The court therefore concluded that the JWC mistakenly exercised her discretion in this matter, and they vacated the order and remanded it for reconsideration of an appropriate additional assessment for the minimal delay.

Reversed and remanded