PA & NJ – CASE SUMMARIES 5/18/2022 to 6/1/2022

Jun 21, 2022

PENNSYLVANIA WORKERS’ COMPENSATION

CASE SUMMARIES
5/18/2022 – 6/06/2022
 JUDICIAL DISCRETION

Judith Carbonell-Caban v. Elwyn, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 18, 2022

Issues:

Whether the WCJ erred in finding the Claimant fully recovered from her work injury, in not awarding Claimant wage loss benefits beyond the date of Employer’s IME, in not dismissing the suspension petition as moot, and in not imposing penalties?

Background:

Claimant sustained a work injury as the result of a motor vehicle accident (MVA) that occurred in the course of Claimant’s employment as a service coordinator for Employer. Employer initially accepted liability for the work injury through issuance of a medical-only Notice of Temporary Compensation Payable (NTCP), which described Claimant’s work injury as a strain to her right wrist, low back, and neck.  A second NTCP filed on May 13, 2015, indicated that Claimant would receive total disability benefits.  Thereafter, Employer denied liability for Claimant’s work injury through a Notice Stopping Temporary Compensation (NSTC) and a Notice of Compensation Denial (NCD).  The NCD described Claimant’s injury solely as a right wrist strain and contested the extent of Employer’s liability for Claimant’s work injury and asserted that she had not suffered any wage loss due to the work injury; however, Employer would continue to pay the cost of any reasonable and necessary medical treatment related to the work injury.  Claimant filed a petition seeking reinstatement of benefits under the Act, an amendment to the description of her work injury, and the imposition of penalties for Employer’s alleged violations of the Act.  Employer filed a petition to terminate Claimant’s benefits, based on the opinion that Claimant had fully recovered from her work injury.  Employer also filed a separate petition requesting an immediate suspension of Claimant’s benefits following her receipt of a third-party recovery from the other driver involved in the MVA.

Holding:

Claimant essentially argues that her medical expert was more credible than Employer’s. It is not for Claimant to determine which expert is credible; that function is performed by the WCJ in her role as the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight. Claimant provided no legitimate basis to overturn the WCJ’s credibility determinations.  A medical expert’s testimony is unequivocal if, after providing a foundation, he testifies that he believes or thinks the facts exist, and the result in question came from the assigned cause. The law does not require every utterance from a medical expert to be certain, positive, and without reservation or exception. Employer’s expert’s opinions were not incompetent.  His recitation of the mechanism of injury is entirely consistent with Claimant’s testimony that she was injured when she was hit from behind.  As to the discrepancy between Claimant’s pain symptoms and the IME findings, the IME doctor testified that the Claimant’s presentation was “out of proportion” to those findings. He was unable to correlate Claimant’s subjective complaints with his objective findings. While the expert agreed that he did not discuss the particulars of Claimant’s pre-injury job beyond the driving aspect of her duties, he unequivocally opined that Claimant required no further care or treatment for her work injury, which consisted of strains to Claimant’s lumbar and cervical spine and her right wrist.  Employer’s Expert was only required to recognize the accepted work injury, not any and all injuries Claimant alleged she sustained. While Employer’s motivation for seeking a suspension of Claimant’s benefits was satisfied upon receipt of the proceeds from her third-party settlement, we agree with the Board that the WCJ’s decision to grant the suspension petition amounted to harmless error, in light of the simultaneous termination of Claimant’s benefits. There would be no benefit in pursuing a remand, which will only serve to unnecessarily prolong the instant litigation.   As to its alleged failure to pay Claimant’s wage loss benefits, Employer explicitly contested the extent of its liability and the extent of Claimant’s disability. The additional periods for which the WCJ found Employer liable for the payment of wage loss benefits occurred several months after Employer contested the existence of any work injury beyond a right wrist strain.   In light of the above, the WCJ did not abuse her discretion in denying Claimant’s request for penalties.

Affirmed 

Ken Walton General Contractor v. Patrick Donahue (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 23, 2022

Issues:

Whether Claimant was the employer’s employee suffered a work-related injury? Whether the Interlocutory Order was a reasoned decision?  Whether the WCJ erred in awarding a penalty and counsel fees for an unreasonable contest?

Background:

According to Claimant, August 8, 2017 was his first day of work with Employer. Before WCJ McCormick, Claimant testified that Ken Walton, owner of Employer (Walton), hired him in a phone conversation the day before. Claimant maintained Walton committed to hiring him “full time,” with 40 hours of work per week at a rate of $15.00 per hour. Claimant was to report to Walton’s home the following day, and he and Walton’s other employees would then travel to a job site for work on a demolition project.  Walton flatly contradicted Claimant’s account of the August 7, 2017 phone call, stressing that, while he did ask Claimant to visit his home on the 8th, this was only to allow Claimant to fill out a job application and work one or two days on a trial basis. Walton testified his policy is to have potential employees accompany him to a job site so he can assess their “skill level” and whether they will “fit” with his team. In Walton’s view, Claimant was injured before that assessment could take place, so he was never employed by Employer. Shortly after Claimant arrived at Walton’s home, he injured himself while unloading a children’s playhouse from Walton’s truck. The parties dispute why Claimant was unloading the playhouse. Claimant maintains Walton ordered him to unload the playhouse to make room for other work-related items in the truck bed. Conversely, Walton testified that Claimant volunteered to unload the playhouse without any direction to do so.  Claimant filed the Claim Petition, seeking full disability benefits under the Act.  Claimant filed a penalty petition based on Employer’s alleged failure to file initial paperwork disputing or acquiescing to the Claim Petition within 21 days.  WCJ Beck issued a final decision granting the Claim and Penalty Petitions. WCJ Beck simply “deferred” to WCJ McCormick’s conclusions as to Claimant’s employment status and the work-related injury, as Judge McCormick had the opportunity to view Walton’s testimony live and evaluate his demeanor and deportment.  However, WCJ Beck found Claimant could only reasonably expect to work 28.37 hours per week, based on Employer’s wage records. Additionally, the WCJ found Claimant was totally disabled until he returned to work part-time. After that, Claimant was partially disabled until September 6, 2018, the date of employer’s IME, by which time he was fully recovered and WCJ Beck terminated all benefits as of this date.  The WCJ ordered Employer to pay 20% of all indemnity benefits, plus interest as a penalty for not filing a Notice of Compensation Denial within 21 days of Claimant’s injury. WCJ Beck also awarded unreasonable contest attorney’s fees to Claimant as Employer’s contest was unreasonable until the date of the IME. Prior to that, in WCJ Beck’s view, Employer defended the claim for benefits based upon the asserted lack of an employment relationship.

Holding:

WCJ Beck and the Board erred in deferring to WCJ McCormick’s Interlocutory Order, as it was not a reasoned decision.  WCJ McCormick’s Interlocutory Order fails to make crucial findings of fact on all essential issues necessary for review and does not provide a reasonable explanation for determinations of witness credibility. Finally, this order fails to include an explanation of the rationale for the decision.  The Interlocutory Order is not a reasoned decision because it offers nothing more than bald conclusions on the legal issues of employment relationship and work-related injury.  The Board erroneously affirmed the WCJ’s decision to assess penalties and unreasonable contest attorney’s fees against Employer.  The imposition of penalties and fixing the amount thereof are matters committed to the discretion of the WCJ. That discretion, however, is not without limits. Where the WCJ “reaches a manifestly unreasonable result,” we need not defer to his discretionary determination. WCJ Beck’s penalty award is manifestly unreasonable. Employer had until August 29, 2017 to send a Notice of Compensation Denial to Claimant and the Bureau. While the Employer filed its Notice of Compensation Denial 38 days past the deadline, Employer filed an Answer to the Claim Petition on September 26, 2017, which presented the basis for Employer’s denial of compensation in essentially the same manner as a Notice of Compensation Denial.   Furthermore, Employer’s Answer indicated its “first notice” of Claimant’s view that he had suffered a compensable injury was the filing of the Claim Petition on September 6, 2017. Under these circumstances, no discernible prejudice to Claimant resulted from Employer’s delay in filing the Notice of Compensation Denial. Employer’s untimely filing, therefore, is at worst a technical violation of the Act. A penalty is not required every time a violation is established. This penalty is grossly disproportionate to Employer’s violation, which caused no prejudice to Claimant, who had already filed the Claim Petition by the time he received the Notice of Compensation Denial. As such, WCJ Beck’s penalty award was “manifestly unreasonable” and thus an abuse of discretion.  WCJ Beck’s basis for awarding attorney’s fees to Claimant fails on multiple levels. Employer legitimately contested issues other than the existence of an employment relationship between Claimant and Employer. WCJ Beck actually ruled in Employer’s favor on the disputed fact issues of Claimant’s average weekly wage and whether he is permanently disabled.  Furthermore, even if Employer’s contest had been exclusively focused on the issue of employment relationship, WCJ Beck told the parties at the November 16, 2018 hearing that he would entertain additional argument on this issue and any other issue that was previously determined via the Interlocutory Order. In taking up this invitation, Employer cannot have presented an “unreasonable contest” justifying the award of attorney’s fees.

Reversed in part, vacated, and remanded
Edward J. Stanis v. WCAB (Brand Energy Services, Inc., Superior Scaffold, Stone & Webster, And A.T. Chadwick Services)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 23, 2022

Issue:

Whether the Claimant met his burden of proving that he sustained a disabling work-related injury?

Background:

Claimant filed a claim petition against his purported employer, Brand Energy, alleging he sustained injuries during the course and scope of employment as a union carpenter.  Claimant thereafter filed a penalty petition, averring that Brand Energy violated the Act, by failing to issue the proper Bureau of Workers’ Compensation notice either accepting or denying liability for the alleged work injury.  Brand Energy filed joinder petitions, against three other employers.   The WCJ determined that Claimant’s alleged work incident did not occur and, therefore, he did not sustain any work-related injuries. The WCJ also determined that Claimant failed to establish that Brand Energy violated the Act.

Holding:

It is the Claimant who bears the burden of proving all elements necessary to support an award of workers’ compensation benefits. Where the causal relationship between the work incident and the injury is not obvious, unequivocal medical evidence is necessary to establish that relationship. Moreover, the WCJ, as factfinder, has complete authority over questions of witness credibility and evidentiary weight and is empowered to resolve conflicts in the evidence. As there was nothing to indicate that the WCJ’s credibility determinations were made arbitrarily or capriciously, and the Claimant failed to adduce credible evidence to establish his entitlement to workers’ compensation benefits the WCJ’s determination must be upheld.   The Court also reviewed the standard for a “reasoned decision” noting that for witnesses testifying before the WCJ, it is appropriate for the WCJ to base his determination solely upon the demeanor of the witnesses, and a mere conclusion as to which witnesses were credible is sufficient for a reasoned decision. When witnesses testify only by deposition, the WCJ must articulate an actual objective basis for the credibility determination.

Affirmed

Ricko A. Callender v. David Elliot Poultry Farm Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 24, 2022

Issue:

Whether the Board committed reversible error by refusing to consider Claimant’s Social Security Disability Decision? Whether the Board erred by refusing to accept that the facts of this case establish the existence of a work injury?

Background:

Claimant worked as a truck driver, which entailed loading, unloading, and delivering boxes of chicken weighing between 80 to 90 pounds. Claimant filed a claim petition alleging he sustained injuries while making a delivery for Employer. The WCJ denied the claim petition. The Board affirmed.

Holding:

The Claimant’s appeal is without merit.  The SSA’s decision declaring Claimant disabled was not made part of the certified record before the WCJ, the Court could not consider it. Also, a determination of disability by the SSA is not relevant to prove whether a Claimant’s disability resulted from an alleged work-related injury.  It is the Claimant who bears the burden of establishing his right to compensation. Here, the WCJ concluded that Claimant failed to meet his burden of proving a work injury occurred at all.  The WCJ did not find Claimant to be credible. Moreover, the WCJ found no unequivocal medical testimony that Claimant’s medical impairments resulted from his work. The WCJ deemed the testimony of Claimant’s expert credible but not persuasive, in light of his reliance upon the inconsistent history provided by Claimant, and because this expert had not reviewed Claimant’s medical records from several other doctors with whom Claimant had treated.   WCJ, as the ultimate fact finder, is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part.

Affirmed

 Michelle Nestman v. Gold Key Country Club, Inc. & Cincinnati Ins. Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 27, 2022

Issue:

Whether the WCJ’s decision was based on incompetent testimony from Employer’s medical expert, allegedly because he did not accept and employ the WCJ’s 2018 amended description of Claimant’s work injury, and did not opine that Claimant had fully recovered from the injury as described in the WCJ’s 2018 decision?

Background:

Claimant sustained a work injury to her right index finger in 2014, which was accepted as a right index finger laceration. In 2018, a WCJ granted Claimant’s petition to amend her work injury description to include neuralgia secondary to a crush injury to her right index finger. In 2019, Claimant filed a petition for specific loss benefits, alleging that she had effectively lost the use of her right index finger. Employer filed a termination petition contending that Claimant had fully recovered from her work injury.  Employer had their expert from the previous litigation reexamine Claimant in October 2019.  In forming his opinion following the October 2019 examination and records review, employer’s expert now assumed that Claimant’s work injury included neuralgia as described in the amendment granted in the 2018 WCJ opinion. (In previous litigation this expert rejected the presence of neuralgia).  He then opined that Claimant had fully recovered from her work injury, found no evidence of any neuralgia pattern, and posited that Claimant had recovered from her injury.  The WCJ found employer’s expert testimony more credible than that of Claimant and her medical expert. The WCJ dismissed Claimant’s petition for specific loss benefits and granted Employer’s termination petition.

Holding:

Employer’s expert credibly testified that he was willing to accept the work injury description found in the WCJ’s 2018 Decision and Order, and that there was no sign of it when he examined Claimant in October 2019.  He reviewed the WCJ’s 2018 decision amending the description of Claimant’s work injury to include neuralgia. Further, the expert was directed to assume, in giving his medical opinion, that the WCJ’s 2018 decision concluded Claimant’s original work injury in 2014 included “severe neuralgia of the right hand and index finger.” The expert’s testimony constituted substantial evidence in support of the WCJ’s decision to grant Employer’s termination petition.

Affirmed

Jennifer WEARY-IRVIN v. U.S. FOODS (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 27, 2022

Issues:

Whether the injuries to “multiple body parts” accepted by Employer in the NCP should include post-concussive syndrome?   Whether the evidence supports the granting of the Termination Petition and the failure to include hearing loss as related to her work injury?

Background:

Claimant was injured in a motor vehicle accident while delivering product to a customer. Employer issued a Notice of Temporary Compensation Payable (NTCP) accepting unspecified injuries to multiple body parts. The NTCP converted to a Notice of Compensation Payable (NCP) by operation of law.   Based on the results of an independent medical examination (IME), Employer filed a Termination Petition, alleging that Claimant was able to return to work. Claimant filed a Review Petition, seeking to amend the description of her accepted work injury to include traumatic monaural hearing loss.  The WCJ granted the Termination Petition.  Regarding the Review Petition, the WCJ found no substantial evidence that Claimant’s hearing loss was related to her motor vehicle accident and concluded that she had failed to demonstrate entitlement to amend the description of her accepted work injuries.

Holding:

There was no indication that the WCJ narrowed the scope of accepted injuries to Claimant. Rather, the WCJ appropriately considered evidence of Claimant’s concussion and post-concussive syndrome within the framework of injuries acknowledged (in broad terms) by the NCP. The WCJ recognized that Claimant’s initial diagnoses included “concussion” accompanied by “headaches, fogginess, light sensitivity, dizziness, nausea, cognitive difficulties and emotional lability.” Thus, the WCJ viewed this injury as within the scope of injuries acknowledged by the NCP.   However, the WCJ specifically credited the medical opinion of employer’s expert over that of Claimant’s expert, finding that Claimant was fully recovered from all issues associated with concussion and post-concussive syndrome.  Further, the WCJ’s findings are neither arbitrary nor capricious and cannot be reweighed on appeal. As for the Claimant’s Review Petition, there is no assertion by Claimant that the initial NCP was inaccurate or in need of correction.  Because Claimant did not seek to correct a material defect in the original NCP but rather sought to amend the description of her injuries to reflect a subsequently arising medical condition, and because there was no obvious relationship between Claimant’s hearing loss and her accident, the WCJ properly placed the burden on Claimant to prove that her hearing loss was related to her motor vehicle accident.

Affirmed

Bruce Sephes v. Nationwide Housing Management and UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 1, 2022

Issue:

Whether the WCJ’s decision to terminate his benefits is supported by substantial and competent evidence and whether the WCJ’s decision issued a reasoned decision?

Background:

Claimant filed a claim petition stating that he sustained a gunshot wound while working for Employer as a maintenance technician. Claimant also filed a penalty petition claiming that Employer was notified of his injuries and failed to accept or deny his claim within 21 days in accordance with the Act.  Following receipt of documentation that Employer did not have workers’ compensation coverage, Claimant filed a notice of claim against the UEGF raising the identical allegations made against Employer in the claim petition.   The WCJ concluded that Claimant met his burden of proving that he sustained a totally disabling work injury while working for Employer, and that Claimant had fully recovered from all of his injuries as of September 19, 2019.  The WCJ further determined that Employer was primarily liable to Claimant and that based on Employer’s uninsured status, the UEGF was secondarily liable to Claimant for all payments should Employer default on its obligations. The WCJ then terminated Claimant’s benefits effective September 19, 2019.

Holding:

Viewing the evidence in the light most favorable to Employer, as the party that prevailed before the WCJ, particularly the testimony of Dr. Snyder, the WCJ’s decision was based on substantial and competent evidence of record. The WCJ, as the ultimate factfinder, is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Further, determinations of credibility and evidentiary weight are within the WCJ’s exclusive province.  The WCJ fully explained her reasons for accepting the testimony of employer’s expert over that of Claimant and, employer’s expert explained that Claimant’s symptoms were no longer work related.

Affirmed

IMPAIRMENT RATING EVALUATIONS

Christopher Fischer v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 25, 2022

Issue:

Whether Act 111 is unconstitutional and violates the injured workers’ vested rights by crediting Employer with any weeks of total disability paid before Act 111 was enacted?

Background:

Claimant suffered a work-related injury in the course and scope of his employment with Employer. Employer issued a Notice of Compensation Payable accepting the work injury. On June 18, 2020, Employer filed the Modification Petition seeking to have Claimant’s benefits changed from temporary total disability to temporary partial disability based upon an IRE performed on June 3, 2020. Claimant did not offer any medical evidence to challenge the impairment rating. Instead, Claimant argued the Modification Petition should be denied because Claimant had yet to receive 104 weeks of total disability as required by Act 111.

Holding:

Act 111 plainly provides for credit of weeks of temporary total and partial disability benefits previously paid and that the General Assembly explicitly provided the credit provisions were to be given retroactive effect. Claimant’s vested rights’ have not been abrogated by Act 111 because there are reasonable expectations under the Act that benefits may change. Act 111 did not automatically strip a Claimant of any rights; rather, Act 111 provided employers with a mechanism to modify a Claimant’s disability status from total to partial.

Affirmed

Joanne Sobol v. Select Medical Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 18, 2022

Issue:

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

Background:

Claimant sustained a work injury.  Employer acknowledged liability for the work injury.  Following a January 22, 2020 IRE performed in accordance with the 6th Edition (second printing) of the AMA Guides, Employer filed a petition to modify Claimant’s total disability benefits, pursuant to Section 306(a.3) of the Act.

Holding:

It was clear that the General Assembly intended for the 104-week and credit weeks provisions of Act 111 to be given retroactive effect.  Also, the Claimant’s vested rights were not affected by the legislation, because there are reasonable expectations under the Act that benefits may change.

Affirmed

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
5/12/2022 – 5/31/2022
 DISABILITY – SPECIFIC V. GENERAL JOB DUTIES

Giles v. Board of Trustees, Teachers’ Pension and Annuity Fund
Superior Court of New Jersey, Appellate Division
No. A-0640-20; 2022 WL 1580869
Decided: 5/19/2022

Background:

Appellant, Sharon Giles, appealed from an October 6, 2020 final agency decision by the Board of Trustees (Board) of the Teachers’ Pension and Annuity Fund denying her application for ordinary disability retirement benefits.

Giles was a public-school teacher for ten years in East Orange. On October 27, 2014, Giles fell off a chair while attempting to hang materials in her classroom, injuring her back. On February 4, 2015, Giles applied for ordinary disability retirement benefits. She resigned her teaching position on July 1, 2015. On August 6, 2015, the Board denied Giles’s request for ordinary disability retirement benefits, concluding that she was not totally and permanently disabled from performing her regular and assigned duty as a teacher. Giles appealed, and the matter was referred to an administrative law judge (ALJ).

At the hearing, Giles testified, as did her medical expert, Dr. David Weiss, and the Board’s medical expert, Dr. Arnold Berman. Giles testified she taught a course on the second floor of the school, requiring her to climb stairs several times per day to perform her job assignments. She also had to stand for 5-6 hours and bend while teaching. Dr. Weiss testified that Giles could not perform her duties as a teacher, Dr. Berman reached the opposite conclusion, and stated her low back pain was due to age-related degenerative changes in her lumbar spine.

The ALJ reversed the denial of Giles’s application for ordinary retirement benefits, holding that the October 2014 fall resulted in her injuring her back, which left her totally and permanently disabled from working as a teacher or in any other capacity. The Board filed exceptions and modified the ALJ’s findings of fact related to Giles’s job duties and rejected the determination that she was permanently and totally disabled from employment as a teacher. On October 6, 2020, the Board determined Giles was not eligible for ordinary disability benefits, and the ALJ confused how she specifically taught with the general requirements of being a teacher. They further determined that the specific problems may have been resolved by accommodations, but Giles did not ask for any accommodations. Additionally, the majority of the specific tasks she stated she could not perform were not in her official job description but particular to her specific assignments, and therefore it cannot be said that she is totally and permanently disabled from her general employment as a teacher. Giles appealed, arguing the Board’s decision lacks fair support in the record, amounts to an abuse of discretion, and is arbitrary and capricious.

Holding:

The court stated that it accords deference to the Board’s interpretation of a statute it is charged with enforcing. The court further found that the record had insufficient fact findings to determine whether Giles is totally and permanently disabled from generally performing her job as a teacher as opposed to performing specific and discrete teaching tasks. The court therefore remanded to the Board to reconcile Giles’s inability to perform certain aspects of her teaching job with responsibilities and general duties of a teacher as described in the District’s job description, which also included a category called “other duties which may be assigned by the administrator.”

Remanded

SUMMARY JUDGMENT

Stonnell v. State of New Jersey, et al.
Superior Court of New Jersey, Appellate Division
No. A-3005-18; 2022 WL 1617122
Decided: 5/23/2022

Background:

Appellant, Michael Stonnell was a New Jersey State Police (NJSP) trooper from 1993 until he retired on January 1, 2018. Mr. Stonnell filed a complaint on January 29, 2015, against the State of New Jersey, NJSP, and several individual State Police officers, alleging that they violated the New Jersey Law Against Discrimination (LAD) by creating a hostile work environment and failing to promote him because of his “disability/handicap and/or age.” He also alleged that they violated the Workers’ Compensation Law (WCL) by failing to promote him in retaliation for him asserting rights under the WCL.

After discovery, defendants moved for, and were granted, summary judgment. The judge concluded that plaintiff failed to establish that defendants’ conduct was related to his disability or that it was extreme enough to amount to a change in the terms and conditions of his employment. With regard to the retaliation claim, the judge found that plaintiff suffered no adverse job actions by defendants. The judge did not analyze the LAD claim that defendants failed to promote plaintiff based on his disability.

Mr. Stonnell appealed, stating that the motion record contained sufficient evidence of material factual disputes foreclosing summary judgment on his employment discrimination, hostile work environment, and retaliation claims.

Plaintiff filed two workers’ compensation claims in March 2011. He eventually returned to work on light duty in early 2012. In 2013, he was diagnosed with skin cancer and underwent chemotherapy. Plaintiff took a 3-week medical leave of absence and his doctor recommended that he no longer work in a “marine environment.” Plaintiff was transferred to a unit in West Trenton, which was far from his home. He acknowledged that he was not subject to a hostile work environment once he was transferred. In July 2014, plaintiff blew out his knee and went on stress leave until his retirement in 2018.

Plaintiff alleged the failure to promote claim began in 2011 when he alleges was not promoted because of his physical ailments. However, plaintiff was recommended for promotion in November 2011. Claimant’s supervisor recommended him for promotion in March 2012, though he expressed dissatisfaction with plaintiff’s absences. In December 2013 and December 2014, plaintiff advanced another level to promotional tier two, but he was ineligible for a promotion because of a pending internal investigation initiated in September 2013 because he did not contact the Medical Services Unit regarding leave for treatment for his skin cancer after being directly ordered to do so.

Holding:

With respect to the failure to promote, plaintiff must show that he was disabled or perceived to be disabled within the meaning of the LAD, that he was qualified for the position or rank, that he was denied promotion, and that another person with “similar or lesser qualifications achieved the rank or position.” In order to prove a hostile work environment, a plaintiff has to show: 1) that he is in a protected class; 2) that he was subjected to conduct that would not have occurred but for that protected status; and 3) it was severe or pervasive enough to alter the conditions of employment. In order to state a prima facie case of retaliation under the LAD, a plaintiff must show that: 1) he was engaged in a protected activity known to defendant; 2) he was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two.

Regarding the “failure to promote” claim, it was limited to a denial of a promotion after January 28, 2013 because of his skin cancer and necessary treatments for that condition. The court held that this claim was properly dismissed. The court held that plaintiff was required to produce some evidence that he was not promoted, but someone of similar or lesser qualifications achieved the rank or position, which he failed to do. The court further held that even if he had met that standard, the defendants clearly articulated a legitimate, nondiscriminatory reason for their actions, that plaintiff was not eligible for promotion while under investigation by internal affairs. The burden then shifts to the employee to prove that the reason articulated by the employer was a pretext for discrimination, which plaintiff was unable to do.

Regarding the “hostile work environment” claim, the court held that this was properly dismissed. The court held that plaintiff’s generalized accusations against several officers, even if corroborated, and of disparate levels of attention directed at him for use of sick time, medical leave, stress leave, or workers’ compensation claims were not severe and pervasive conduct in violation of the law. Further, t

Regarding the “retaliation” claim, plaintiff was required to demonstrate that he engaged in a protected activity under the LAD known to defendants and they retaliated against him between January 29, 2013 and the filing of his complaint. The court held that though plaintiff never made a complaint to the appropriate NJSP personnel about a violation of the LAD, plaintiff did seek leave for treatment of his skin cancer in the summer of 2013 as an accommodation for his disability, so defendants knew of that request at some point because it triggered an internal affairs investigation. The court agreed with the motion judge that plaintiff suffered no adverse employment action in retaliation for his leave request. Plaintiff suffered no reduction in rank or pay after his transfer, and the only adverse consequence of the transfer is that it was farther from his house. Further, the transfer was initiated by plaintiff’s doctor’s recommendation that he no longer work outdoors. Therefore, plaintiff’s claim that the transfer was punishment is not sufficient to establish a material disputed fact demonstrating that defendants’ legitimate reason was merely a pretext for the underlying discriminatory motive.

Affirmed

PA & NJ – CASE SUMMARIES 4/16/2022 to 5/15/2022

Jun 2, 2022

CASE SUMMARIES 

4/16/2022 – 5/15/2022

 PENNSYLVANIA WORKERS’ COMPENSATION

 IMPAIRMENT RATING EVALUATIONS

Donna Cutter v. Commonwealth Of Pennsylvania (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 27, 2022

Issue:

Can benefits under the WC Act be modified under an IRE, where the claimant has only been receiving benefits under Act 534 for her work injury?

Background:

Claimant sustained a work injury while in the course of her employment as a youth development aide at the South Mountain Secure Treatment Facility (Facility) operated by DHS (Employer), following an assault by a resident of the Facility. Employer accepted Claimant’s work injury through issuance of a notice of compensation payable (NCP), which acknowledged that Claimant sustained various injuries.  The NCP acknowledged that Claimant would receive Act 534 benefits in lieu of compensation under the WC Act.

Holding:

Act 534 benefits are similar to those provided under what is commonly known as the Heart and Lung Act (HLA), which provides full-salary benefits to police officers, firefighters, and other public safety employees injured on the job. Like Section 1(a) of Act 534, Section 1(a) of the HLA anticipates that an injured employee may seek benefits under both the HLA and the WC Act; however, the Commonwealth is entitled to recoup the amount of disability benefits a claimant receives under the WC Act. 53 P.S. § 637(a). Given the similarities in purpose and construction between the HLA and Act 534, the analysis of one statutory provision may be applied to the other.  When a self-insured employer begins paying benefits under the HLA pursuant to an NCP, two-thirds of the amount paid automatically represents the payment of workers’ compensation benefits under the WC Act.  A self-insured employer paying a claimant’s full salary under the HLA or Act 534 would “hardly reimburse itself for that portion of a claimant’s benefits that represents benefits under the [WC] Act.”   Employer is self-insured and therefore two-thirds of Claimant’s Act 534 benefits represents the payment of total disability benefits under the WC Act. Therefore, Claimant’s receipt of Act 534 benefits for a period exceeding 104 weeks satisfies the prerequisite necessary for Employer to seek an IRE under Section 306(a.3) of the WC Act.

Affirmed

Joseph C. Hazzouri V. Pennsylvania Turnpike Commission (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Filed April 28, 2022

Issue:

Whether the retroactive application of Act 111’s IRE mechanism to injuries occurring before its effective date is unconstitutional?

Background:

Claimant sustained a work-related injury to his back.  Sometime later the Employer filed a Modification Petition based upon an IRE performed on April 22, 2019. By decision and order circulated on November 25, 2020, the WCJ granted Employer’s Modification Petition. The WCJ concluded that Employer had met its burden of proving that Claimant had an impairment rating of less than 35% based upon the IRE.   Claimant challenged the retroactive application of Act 111’s IRE provisions to Claimant’s work injury as unconstitutional

Holding:

Act 111 did not affect the claimant’s vested rights because it did not impose new legal burdens on a past transaction or occurrence or otherwise change the status of a claimant’s workers’ compensation benefits. Rather, it merely established a means for an employer to seek a modification of a claimant’s benefits going forward.   Act 111 did not automatically change claimant’s disability status or otherwise deprive him of vested rights under the Act. Rather, Act 111 simply provided a mechanism for Employer to pursue a change in Claimant’s disability status by requiring medical evidence that Claimant’s whole-body impairment was less than 35%. Because Claimant’s IRE occurred after the enactment of Act 111, it did not constitute a retroactive application of the law. Because Claimant already received 104 weeks of total disability benefits, Employer was permitted, under Section 306(a.3)(1), to seek a new IRE, a modification based on its results, and a credit for disability benefits paid.

Affirmed

 Kelly Gooden v. School District of Philadelphia (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

Issue:

Whether it was an error of law to grant the Modification Petition when Section 306(a.3) of the Workers’ Compensation Act (Act) requires that IREs be performed pursuant to the “6th edition (second printing April 2009)” of the Guides and there was no evidence as to which 6th edition was utilized?

Background:

The WCJ and Board found Claimant’s benefits should be modified from temporary total disability to temporary partial disability based upon an impairment rating evaluation (IRE) performed using the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides).

Holding:

Because the plain language of the Act specifies the “6th edition (second printing April 2009)” of the Guides be utilized, the court was constrained to vacate the Board’s Order and remand with instructions for the Board to further remand to the WCJ for evidence as to which version of the 6th edition of the Guides was used by the physician.  The only evidence of record is the IRE physician’s testimony and report that shows the 6th edition was used. Because there is no evidence that the “second printing April 2009” version was used by Dr. Walsh, the court vacated the Board’s Order and remand this matter for further evidence as to which version of the 6th edition of the Guides was utilized.

Remanded

John LYNCH v. COMMONWEALTH of Pennsylvania (WCAB)

Commonwealth Court of Pennsylvania – Reported opinion

Decided April 29, 2022

 Issue:

Whether Claimant’s receipt of full salary benefits under Act 534 constitutes receipt of “total disability compensation” under Section 306(a) of the WC Act for purposes of triggering Act 111’s IRE mechanism?

Background:

Claimant sustained the first work-related injury in 2012.  Claimant sustained a second work-related injury in 2014. In 2020 the Employer filed two Modification Petitions under Act 111 — one regarding the 2012 Injury and the other regarding the 2014 Injury — seeking to change Claimant’s disability status from total to partial based on the results of an IRE performed on June 2, 2020, which yielded a whole-body impairment rating of less than 35%.    The Claimant receives an amount equal to his full salary under Act 534, the Insurer pays workers’ compensation [TTD] benefits to Employer, which then adds sufficient amounts to the workers’ compensation benefits to bring the sum up to the level of the Act 534 benefits, and the total is then paid to Claimant. Accordingly, Claimant receives workers’ compensation [TTD] benefits plus additional amounts added to equal his Act 534 rate.

 Holding:

Act 534 was passed by the General Assembly to assure that state workers in positions at institutions considered more dangerous than normal would receive full salary during periods of work-related disability. Pursuant to Act 534, the Commonwealth employer pays a “full salary” to any employee “injured during the course of his employment” by a person confined in one of the above-mentioned facilities “until the disability arising therefrom no longer prevents his return as an employee of such department, board or institution at a salary equal to that earned by him at the time of his injury.”  Act 534 benefits are “intended to supplement, not replace, workers’ compensation and occupational disease benefits.”   Employer here is self-insured, and, Employer accepted Claimant’s 2014 Injury and agreed to reinstate Claimant’s TTD benefits effective January 27, 2016, for which it paid Claimant Act 534 benefits. The claimant received Act 534 benefits for more than 104 weeks prior to the June 2, 2020 IRE. As with HLA benefits, two-thirds of the Act 534 payments that Claimant received represents total disability benefits under the WC Act as a matter of law. Because Employer made payments as mandated by the WC Act, Employer is afforded all rights thereunder, including the right to seek modification of Claimant’s workers’ compensation benefits under Section 306(a.3) of the Act. To conclude otherwise and deny the Employer the ability to seek a modification of benefits under Act 111 simply because Claimant was entitled to additional benefits under a separate statutory provision would be contrary to the law.

Affirmed

George White v. City of Philadelphia (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

Issue:

Where a Claimant does not challenge a 2010, IRE until after Protz II was decided, is his right to reinstatement of total disability limited to the date on which he filed his reinstatement petition?

Background:

Claimant petitioned for review of an adjudication of the Workers’ Compensation Appeal Board (Board) reinstating his total disability benefits as of February 21, 2019, the date on which he petitioned for reinstatement. Claimant argued that the Board erred and should have reinstated his benefits as of October 7, 2010, the date that his disability status was modified from total to partial based upon an unconstitutional impairment rating evaluation (IRE) conducted under former Section 306(a.2) of the Workers’ Compensation Act (Act).

 Holding: 

Claimant did not file his petition seeking reinstatement of benefits until February 21, 2019, after the Supreme Court’s decision in Protz II was issued. The WCJ credited Claimant’s testimony and granted his reinstatement petition as of the date he petitioned for reinstatement. The WCJ’s decision is consistent with Whitfield and its progeny.  The claimant was not deprived of a vested right to workers’ compensation benefits as to be vested, these rights must be more than an 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.  A WCJ may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its WCJ, upon petition filed by either party.  As such, there are no vested rights in workers’ compensation benefits.  Because Claimant did not challenge the 2010, IRE until after Protz II was decided, he is only entitled to a reinstatement of total disability benefits as of the date on which he filed his reinstatement petition.

Affirmed

Brian Temme Tree Service And SWIF v. Jerry Ecott (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Filed May 10, 2022

Issue:

Whether the WCJ’s denial of the Employer’s Modification Petition, based upon an IRE, was supported by substantial, competent evidence?

Background:

On March 27, 2019, Employer required Claimant to undergo an IRE pursuant to Section 306(a.3) of the Act. Based on the results of the IRE, Employer filed its Modification Petition on April 18, 2019. Here, Employer presented the written IRE report in support of its Modification Petition. Claimant did not submit any evidence addressing the IRE.  Instead, he submitted a series of “evaluation reports” from another physician.  These reports did not apply the Guides or address Claimant’s impairment rating in any other fashion. Furthermore, Claimant’s counsel admitted on the record that the reports were offered for “historical” purposes only, while the WCJ expressly found the reports did not address impairment rating.   Neither party presented live testimony, and Claimant’s counsel was not able to cross-examine the IRE doctor.   The WCJ rejected the IRE as not credible or persuasive to support a modification of benefits.   The WCJ supported this conclusion by finding that the IRE report did not adequately address Claimant’s documented chronic pain issues and its effect on Claimant’s ability to function.  Also she took issue with the IRE doctor’s application of the Guides, finding that although the percentage assigned for each condition is 5%, which mathematically adds up to 15%, she was not convinced that the aggregate effect of the pain associated with these conditions may not be significantly more. Finally the WCJ pointed to various testing and questioning which was not performed as part of the IRE.

Holding:

After an injured worker has received total disability benefits under the Act for 104 weeks or more, Section 306(a.3) of the Act authorizes employers to conduct an IRE.  The worker may then contest the results of the IRE through submission of contrary evidence or by cross-examining the employer’s witnesses.  The WCJ’s findings are not supported by substantial evidence of record.  A WCJ cannot support her conclusions by simply interjecting her own lay opinion on medical subjects. Here, the WCJ rejected the IRE impairment rating based solely on her personal opinion of how an IRE addressing Claimant’s particular condition should be conducted. Given that the IRE report was the sole evidentiary support for Employer’s Modification Petition, these erroneous findings of fact were clearly central to the WCJ’s decision. Accordingly, because these findings are not supported by substantial evidence, the WCJ erred in denying Employer’s Modification Petition and the Board erred in affirming that determination.

Reversed

Republic Services of Pennsylvania, LLC v. Robert Schaffer, Jr. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 12, 2022

Issue:

Did the WCJ err in failing to grant Employer a credit for previously paid weeks of partial disability pursuant to the retroactivity clause of Act 111, where a crucial document, not part of the record in the matter, was used by the WCJ to justify treating those previous weeks as total disability payments?

Background:

Prior to 2012, the Employer filed a modification petition seeking to change Claimant’s disability status based upon an IRE. In 2012, Claimant signed a supplemental agreement that reflected that Claimant’s benefits are to be modified to partial disability as of August 22, 2011.   However, there was a stipulation in 2018, as a result of Protz, in which Employer agreed that Claimant’s disability was a total disability and not a partial disability as part of the litigation of a Reinstatement Petition.  The parties agreed that the petition should be granted reinstating Claimant’s benefits to total as of August 22, 2011.   On March 4, 2019, Claimant underwent a second IRE by Dr. Michael Weiss, who found that Claimant’s impairment rating was 28% based on the AMA Guides, Sixth Edition (Second IRE). Employer filed a Modification Petition in April 2019 based on the Second IRE, requesting the benefit status be modified to partial disability. The WCJ granted the Modification Petition as of the date of the Second IRE.  He concluded that Employer was not entitled to credit for the weeks it paid partial disability benefits since those provisions of the Act were found unconstitutional.   The WCJ modified the wage loss benefits to temporary partial disability pursuant to the 28% rating in the Second IRE in regard to Claimant’s work-related injuries. The WCJ found the benefits prior to the date of the Second IRE (March 4, 2019), should be classified as temporary total disability benefits and not partial disability benefits, based, in part, on the 2012 Agreement.  Further, the WCJ ordered that all wage loss benefits paid before March 3, 2019, “shall be considered temporary total disability benefits.”

Holding:

This matter turns on the 2018 stipulation.  Employer’s agreement to classify Claimant’s disability status as “total,” retroactive to August 2011 was in lieu of litigating the then pending Reinstatement Petition. The 2018 Stipulation was not made an exhibit or submitted formally as evidence during the litigation of the Modification Petition before WCJ.  Nevertheless, based on the circumstances, exclusion of the facts agreed upon in the 2018 Stipulation is not appropriate. This situation is more akin to recognition of adjudicated facts than to judicial notice. Employer improperly seeks to disclaim the application of the adjudicated facts of the prior proceeding related to reinstatement.    This Court does not construe Protz to have compelled all employers to agree to classify all claimants as having a total disability. Employer elected not to litigate the Reinstatement Petition, pure and simple.  In lieu of litigating whether Claimant was entitled to reinstatement at the total disability level, Employer agreed to classify Claimant’s benefits as total disability benefits. Because the 2018 Stipulation set forth facts that were the basis for a subsequent adjudication, and made a part of that decision, it was not improper for the Board to consider it. Employer was properly bound by its agreements.

Affirmed

Sandra Tufano v. Tammy L. Clause, P.C. (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 13, 2022

Issues:

Is the Board’s order, which affirmed the WCJ’s finding that Claimant had reached MMI supported by substantial, competent evidence?   Does Section 306(a.3) of the Act, 77 P.S. 511.3, deprive Claimant of a vested statutory right in violation of the Remedies Clause of the Pennsylvania Constitution?

Background:

Claimant sustained a work-related soft tissue neck strain.   In April 2017, Claimant underwent an IRE per former Section 306(a.2) of the Act.   Claimant’s IRE resulted in a whole-body impairment rating of less than 50%. As a result, Employer converted Claimant’s disability status from temporary total disability (TTD) to partial disability. On June 20, 2017, however, the Supreme Court issued its decision in Protz II.  In response to the Protz II decision and to reestablish the IRE process, on October 24, 2018, the General Assembly enacted Act 111, which took immediate effect.  Subsequent to its enactment, on September 11, 2019, Claimant underwent another IRE.  Based on this impairment rating, Employer filed a Modification Petition seeking to change Claimant’s disability status from TTD to partial disability.

Holding:

There was substantial evidence to support the WCJ’s findings and the Board’s conclusions as to MMI. Further, Employer was not required to wait 104 weeks from the effective date of Section 306(a.3) of the Act before obtaining an IRE.  There are reasonable expectations under the Act that benefits may change.  The enactment of Section 306(a.3) of the Act did not change Claimant’s status, deprive her of any vested rights, or change the status of her workers’ compensation benefits. Section 306(a.3) of the Act merely established a mechanism for Employer to seek modification of Claimant’s disability benefits in the future. Accordingly, the court rejected Claimant’s constitutional challenge to Section 306(a.3) of the Act.

Affirmed

BUREAU FORMS

The School District of Philadelphia v. Carleton Holman (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 19, 2022

Issues:

Did the Board err in reversing the WCJ’s decision denying and dismissing Claimant’s Penalty Petition, where it is argued the Employer followed the Act and the regulations by correctly utilizing a form prescribed by the Department, and otherwise acting in accordance with the law?

Background:

Employer issued an NTCP recognizing various injuries.  Pursuant to the NTCP, Employer agreed to pay Claimant medical benefits and wages in lieu of compensation. Shortly thereafter Employer issued a Medical-Only NCP for the injuries and stopped paying wage benefits. Claimant filed a Penalty Petition alleging that Employer violated the Act and regulations by unilaterally stopping payment of wage compensation. Claimant sought penalties and a reinstatement of compensation benefits. Claimant testified that he never received a Notice Stopping Temporary Compensation (NSTC).   Employer argued that by issuing a Medical-Only NCP within 90 days of issuing the NTCP, it complied with Bureau regulation 34 Pa. Code § 127.17 and did not otherwise violate the Act.

Holding:

Section 406.1(c) of the Act generally provides that if an insurer controverts the right to compensation, it shall promptly notify the employee or his dependent, on a form prescribed by the Department, stating the grounds upon which the right to compensation is controverted and shall forthwith furnish a copy or copies to the Department.   Section 406.1(d) of the Act specifically addresses NTCPs. NTCPs are to be used in situations where, as here, an employer is uncertain whether a claim is compensable under the Act or the extent of its liability. Under 34 Pa. Code § 121.17(d)(1)-(3), when an employer seeks to stop paying temporary compensation under an NTCP, an employer may file: (1) an NSTC and NCD within a prescribed timeframe; or (2) an NCP; or (3) an Agreement for Compensation for Disability or Permanent Injury.  Requiring an employer to issue an NSTC and NCD when it chooses to accept medical liability would essentially require an employer to misinform a claimant as to the status of his or her claim and demand that a claimant expend the time and resources needed to file an unnecessary claim petition in order to vindicate his or her rights and would defeat the humanitarian purposes of the Act. The filing of a Medical-Only NCP to stop compensation payments under an NTCP comported with both the Act and its regulations.  As such, the WCJ did not err in determining that Employer did not violate the Act or regulations and by denying and dismissing Claimant’s Penalty Petition.

Reversed

JUDICIAL DISCRETION

Nicholas Conner V. Ram Forest Products, Inc. And Todd Smith Logging, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 28, 2022

Issue:

Is the WCJ’s determination that the claimant was an independent contractor, and not an employee, supported by substantial evidence?

Background:

The tax forms completed by Claimant revealed his status as an independent contractor. Claimant completed a W-9 form, acknowledging that he was a sole proprietor and not an employee. Furthermore, the Employer issued 1099 Forms in 2017, 2018, and 2019 indicating that it considered Claimant as an independent contractor and not an employee.  Claimant completed tax forms in 2017, 2018, and 2019, noting his self-employment as a logger. Furthermore, there is no dispute that Claimant was not paid based on his hours of work, or at a weekly rate, but instead was paid on the basis of his production. Finally, logging was not part of the regular business of Employer.  Rather, Employer is a high volume hardware lumbar sawmill which does not employ any loggers. While it is obvious that Employer, as a sawmill, needs lumber, it was not part of its regular business to perform the logging work. To the contrary, Employer hired independent contractors to perform the logging.  On November 13, 2020, the WCJ held that Claimant failed to establish he was Employer’s employee when he was injured on August 16, 2019. Claimant appealed to the Board. On September 1, 2021, the Board affirmed the WCJ’s decision.

Holding:

Section 104 of the Act defines an employee. There is no bright line rule for determining whether a particular relationship is that of an employer-employee or owner-independent contractor.  Nevertheless, our Supreme Court has established the following factors that must be considered when making such determination:  Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer; and also the right to terminate the employment at any time.   Since this Court may not reweigh the evidence or the WCJ’s credibility determinations, and because the record evidence supports the WCJ’s findings of fact and conclusions of law, this Court holds that the Board properly affirmed the WCJ’s determination.

Affirmed

Josephine Hinchey v. Mercy Catholic Medical Center (WCAB)

Commonwealth Court Of Pennsylvania – Unpublished Memorandum Opinion

Decided April 28, 2022

Issue:

Did the WCJ fail to issue a reasoned decision based on the evidence as a whole?

Background:

The WCJ found Claimant’s medical evidence incompetent because it did not address how the work injuries were causally connected to her new diagnoses. Only one of her doctors, Dr. Murphy, even acknowledged that the accepted work injury was a lumbar strain and he failed to address that Claimant had fully recovered from that injury in 2015 and was claiming a recurrence of the injury. Thus, none of her medical experts explained how the lumbar strain recurred and caused new injuries and/or aggravated preexisting injuries. Accordingly, none of the medical experts based their diagnoses on the factual record of the case, rendering their opinions incompetent.

Holding:

Whether medical evidence is competent is a conclusion of law reviewable on appeal.  A medical expert’s opinion is not rendered incompetent unless it is solely based on inaccurate or false information.  The opinion of a medical expert must be viewed as a whole, and inaccurate information will not defeat that opinion unless it is dependent on those inaccuracies.   Claimant has the burden of proving a causal connection between the previously accepted work injury and her current disability. Her first expert made no attempt to address a causal connection.  Her second expert described the 2014 work injury as causing neck and back pain even though her claim of neck injuries was rejected by a prior WCJ.  The third expert diagnosed Claimant with numerous neck and back injuries along with anxiety, depression and facial twitching and claimed that all the diagnoses are related to the work incident.  However, he did not identify the work injury as a lumbar strain nor did he acknowledge a prior WCJ’s decision that found that Claimant had fully recovered from her lumbar strain and which rejected Claimant’s attempt to include neck injuries, anxiety, and depression as work-related injuries.  Thus, claimant’s medical evidence was incompetent.   Section 422(a) of the Act, 77 P.S. § 834, requires a WCJ to make the findings of fact and credibility that are necessary for meaningful appellate review. Here, it was not necessary to address Claimant’s credibility. Her medical evidence was deemed incompetent and without it she could not prevail. Thus, the WCJ properly complied with Section 422(a) of the Act, and his decision was reasoned.

Affirmed

 Accurate Engineering Solution v. John Anderson and Williams Form Engineering (WCAB) 

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

 Issue:

Whether the WCJ erred or abused her discretion when she granted Claimant’s request to withdraw his claim petition over Accurate’s objection, when the withdrawal prejudiced Accurate’s ability to seek reimbursement from Williams for a medical bill Accurate mistakenly paid?

Background:

Claimant responded to an unsolicited email from Accurate, a technical staffing agency, about an opening for a plant manager at Williams. Williams’ representatives interviewed and hired Claimant for the position. Williams directed Claimant’s work activities on site, but at least for the first 90-day probationary period, Claimant was employed and paid by Accurate under Accurate’s agreement with Williams.  Claimant filed a claim petition alleging that he was injured in the course of his employment with and on the premises of Accurate when he slipped and fell 15 feet, sustaining multiple injuries. Accurate issued an NCD on the basis that the injury was not in the scope of Claimant’s employment.  The following day Accurate paid $44,065.71 to Main Line Health for surgical services rendered to Claimant from December 7, 2018, to December 12, 2019.   The payment was inadvertent according to Accurate’s counsel. Accurate filed a joinder petition against Williams on the basis that Claimant was a borrowed employee.  There was no agreement as to Claimant’s employer.

Holding:

The WCJ’s failure to consider Accurate’s joinder petition, and to determine whether Accurate or Williams is the responsible employer, is the precise source of her error here. Accurate’s joinder petition was pending before the WCJ when she received Claimant’s request to withdraw. Accurate was prejudiced when the WCJ granted Claimant’s withdrawal, over Accurate’s objection, before she admitted evidence and determined Claimant’s responsible employer. The timing of the WCJ’s granting Claimant’s withdrawal before considering Accurate’s pending joinder petition was in error because it failed to “promote, consistent with fairness and due process, the orderly and expeditious determination of proceedings” before the WCJ under the Act. 34 Pa. Code § 131.1(a). The WCJ’s decision denied Accurate the opportunity to be heard on the issue of Claimant’s employer, without which it lacks a forum to seek reimbursement for the medical bill it mistakenly paid. The WCJ erred when she, in effect, closed the record prematurely, before Accurate had the opportunity to submit “all of [its] evidence and rest[ ],” as required by the Department’s regulation.   The dispute which must be resolved on remand is whether Accurate or Williams is Claimant’s employer, and which employer or insurer is responsible for the medical bill that Accurate paid to Main Line Health for Claimant’s surgery.

Reversed and Remanded

WAIVER, FORFEITURE, UTILIZATION REVIEW

 Joan M. Rotegliano v. Clinton Hospital Corporation (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 12, 2022

Issues:

Should Employer’s appeal be quashed because Employer failed to properly preserve its issues in its appeal?  Did the claimant provide a reasonable excuse for her failure to attend the IME? May the WCJ find palliative treatment unreasonable and unnecessary where it is shown to be of little value due to the passage of time or other considerations?

Background:

The Claimant sustained a work-related injury which was accepted as a Herniated Nucleus Pulposus (HNP) at C5-6. Sometime later, a WCJ issued a decision expanding the description of Claimant’s injury.  That decision also upheld a UR report finding Claimant’s prescriptions for opioids to be reasonable and necessary.  Thereafter, in a later proceeding, a WCJ granted Employer’s petition for physical examination and ordered Claimant to undergo an IME at a specified address.   Subsequently, Employer filed a suspension petition based on Claimant’s failure to attend the scheduled IME.

Holding:

Merely listing conclusion of law by number is insufficient to preserve legal issue for appeal.  While an appeal to the Board that enumerates a WCJ’s challenged findings of fact and asserts that they are not supported by substantial evidence will be sufficient to preserve those issues, to the extent a party seeks to raise legal issues to the Board but only lists the challenged conclusions of law without also specifying the legal basis for appeal in its documentation, those claims will be deemed waived.

Claimant did not provide a reasonable excuse for her failure to attend the IME. Claimant’s affidavit stated that her attorney’s office gave her an address in Lemoyne and her caregiver-driver Shannon Fields printed directions to that address. They arrived on time for the scheduled IME but were told they were not in the system for an appointment. They were given another address in Mechanicsburg, which was also incorrect. They were finally given the correct address in Harrisburg, but by the time they arrived, nearly three hours after the appointment time, the IME doctor had left for the day. They tried calling Claimant’s counsel several times but were unsuccessful. An affidavit from Employer’s IME vendor stating that an appointment letter with the correct Harrisburg address was sent to Claimant and her counsel and the address was confirmed with counsel’s office prior to the IME date; the affidavit adds that the vendor does not conduct IMEs in Lemoyne or Mechanicsburg.  Further, the WCJ’s IME order and IMX’s letter advised both her and her counsel of the correct address or that she had the opportunity for Employer to transport her to the IME but chose instead to be personally responsible for her attendance.

Treatment may be reasonable and necessary even if it provides solely palliative relief and does not cure the underlying injury. However, the WCJ may find palliative treatment unreasonable and unnecessary where it is shown to be of little value due to the passage of time or other considerations.  Given the change in the way these medications are being used in the medical community, it is not unreasonable for an employer to question the ongoing, long term prescription of opioids to claimants.

Affirmed

RES JUDICATA AND COLLATERAL ESTOPPEL

 Pocono Mountain School District v. Jeffrey Kojeszewski (WCAB)

Commonwealth Court of Pennsylvania

Decided April 21, 2022; Published July 7, 2022

 Issues:

Whether the Board erred in affirming the decision and order of WCJ because the opinion of Dr. Talsania was contrary to facts previously found by prior WCJ and the medical evidence established that Claimant was fully recovered from those injuries?

Background:

Claimant sustained a work-related injury when he slipped and fell while applying polyurethane to a gymnasium floor. Claim petition granted and recognized various work-related injuries.  The Claimant’s benefits were suspended when Claimant returned to his pre-injury position with no loss of wages.   In 2019, Claimant filed a review petition seeking to add left brachial plexopathy to the description of his injuries, as well as a reinstatement petition seeking wage loss benefits as of June 26, 2018.  Employer filed a termination petition alleging that Claimant had fully recovered from his work injuries as of September 12, 2019.

Holding:

Here, there was not an identity of issues between the claim and review petitions. In the claim petition, Claimant alleged different injuries from those he sought to add by means of the review petition filed in light of subsequent medical developments. Therefore, res judicata does not apply.   Here, ulnar nerve subluxation was not raised as an issue in the claim petition. Accordingly, it cannot be said that Claimant had a full and fair opportunity to litigate that issue, and similarly, it was not essential to the judgment. Therefore, collateral estoppel is inapplicable.  Further, the uncontradicted evidence indicated that Claimant had fully recovered from the injuries recognized in the earlier decision. However, a partial grant of a termination petition is improper, as a termination requires that all disability has ceased. Accordingly, in light of Claimant’s ongoing disability relating to left brachial plexopathy, this Court affirms the denial of Employer’s termination petition based on Claimant’s purported recovery from his previously recognized injuries.

Affirmed

PENALTIES

Theresa Skay v. Borjeson & Maizel Llc (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania

Decision May 10, 2022; Published July 26, 2022

Issue:

Whether the WCJ erred as a matter of law by denying a Penalty Petition because the Employer unilaterally refused to pay for medical treatment that had been subjected to an unchallenged UR Determination that found the treatment reasonable and necessary?

Background:

Claimant fell in a crosswalk while in the course of her employment. Claimant’s work injury had been established as “status post L5-S1 fusion, bilateral SI joint disease with SI joint mediated pain,” and “reflex sympathetic dystrophy of the lower left extremity.” A WCJ denied Claimant’s Review Petition, which sought to add mood disorder and major depressive episodes to the work injury. That WCJ also found that Claimant did not suffer from postural orthostatic tachycardia syndrome.   During Claimant’s receipt of workers’ compensation benefits, UR Determinations were completed on August 17, 2015, and December 11, 2017.  Both UR Determinations found that every medication prescribed to Claimant by provider was reasonable and necessary.   On November 12, 2019, Claimant filed a Penalty Petition, alleging that Employer violated the Workers’ Compensation Act (Act) by failing to pay for some of Claimant’s prescription medications. Many of the medications for which Employer ceased payment had been approved as reasonable and necessary as part of the 2015 and 2017 UR Determinations.  Employer unilaterally refused to pay for some of Claimant’s prescription medications, because Employer believed that those prescription medications were not causally related to Claimant’s work injury. Employer was legally permitted to do this, but Employer would have been liable for penalties if a WCJ determined that the prescription medications at issue were causally related to Claimant’s work injury.  Claimant did not present any other challenges to Employer’s evidence that the prescription medications at issue in this matter were unrelated to the work injury. Claimant relied solely on the prior, unchallenged UR Determinations, which Claimant believes established that the prescription medications at issue in this matter were determined to be reasonable and necessary for treatment of Claimant’s work injuries.

Holding:

If an employer believes that a claimant’s medical expenses are not causally related to the claimant’s work injuries, the employer may unilaterally stop paying for those medical expenses. If an employer does so, however, the employer “assumes the risk of exposure to possible penalty liability contingent upon a WCJ’s ruling concerning the causal relation of the medical costs.   An employer, who questions ‘causation’ and the subsequent medical bills, may escape penalty provision liability for unilaterally ceasing to pay for these medical bills, if a WCJ later determines that the medical bills were indeed not causally related to the work-related injury.”  The only evidence Claimant presented or referenced to establish a causal relationship between the prescription drugs at issue and the work injury was the prior UR Determinations. UR Determinations do not decide the causal relationship between treatments and the work injury. Thus, Claimant did not present any evidence establishing that the prescription medications were causally related to the work injury. Accordingly, the WCJ’s findings and the Board’s conclusions, that Claimant failed to establish that the prescription medications at issue in this matter were causally related to Claimant’s work injury, are free of legal error.

Affirmed

 VOLUNTARY REMOVAL

 Cargill Meat Solutions v. Kathleen Johnson (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided May 4, 2022

Issue:

Whether the WCJ erred when he determined that Employer had failed to establish that Claimant had retired or voluntarily left the workforce?

Background:

Claimant worked for Employer for 12 years. Claimant suffered a work-related injury. Claimant continued to work but was eventually terminated by Employer. A WCJ awarded Claimant total disability benefits as of the day after the termination from employment.  Thereafter, Employer sought to suspend Claimant’s benefits, asserting that she had voluntarily withdrawn from the workforce.  According to Employer, Claimant testified that she has not looked for work since 2017; that she is currently on SSDI; and that she did not plan on returning to work.  The WCJ credited Claimant’s testimony in its entirety but specifically credited her testimony that she would have continued working but-for the work related injury and subsequent involuntary discharge.

Holding:

Disability benefits must be suspended when a claimant voluntarily leaves the labor market upon retirement.  Only after the employer has met this initial burden does the claimant incur any evidentiary burden of proof. Whether a claimant has elected to receive a pension is probative but not conclusive of a claimant’s desire to leave the workforce.   Further, the receipt of SSDI could be evidence that a claimant’s work injury forced him or her out of the labor market.  Employer offered no evidence to meet its burden other than Claimant’s testimony. The WCJ considered Claimant’s lengthy service with Employer; that she had continued to work after her injury, even beyond her physical limitations; that she had not resigned but was terminated by Employer; that her disability was permanent; that she had nonetheless sought employment within her functional limitations; and that she had qualified for SSDI based on her disability and not due to her age. Based on this substantial evidence, the WCJ reasonably concluded that Employer failed in its initial burden to prove that Claimant had voluntarily left the workforce.

Affirmed

YELLOW FREIGHT

 Joanne Desue v. Bank of America (Workers’ Compensation Appeal Board)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 21, 2022

 Issues:

Whether Claimant was entitled to a presumption that her disability continued and the burden was on Employer to overcome that presumption, based upon the late answer?  Whether the Employer offered competent evidence to rebut the presumption of ongoing disability or the onset of psychological injuries?

Background:

Claim Petition alleging that she sustained a work-related injury while in the course of her employment as a paralegal. Employer filed an untimely Answer to the Claim Petition denying the material allegations contained therein.  Claimant’s counsel, citing Yellow Freight, moved to have all facts alleged in the Claim Petition deemed admitted because of Employer’s failure to file a timely answer.  Thereafter, Claimant filed a Review Petition alleging that she is also suffering from psychological symptoms and disability as a result of her work injury, and she sought to amend her claim to include a psychological condition.

Holding:

Under Yellow Freight, because every factual allegation asserted in the claim petition is admitted as true, the employer is barred from presenting any affirmative defenses or evidence to rebut the facts deemed admitted.  However, an employer is not precluded from offering evidence in rebuttal to facts that a claimant did not specifically allege in a claim petition.  Further, an unexcused late answer admits facts, but not legal conclusions. Pursuant to Yellow Freight, the admitted allegations are that Claimant sustained the listed injuries and that she was entitled to the presumption of an ongoing disability as a result of her work-related injury. It was Employer’s burden to rebut this presumption. In this regard, the WCJ erred.  Although the WCJ erred by placing the burden on Claimant to prove an ongoing disability, the WCJ’s misplacement of the burden was harmless under the circumstances here because Employer had otherwise presented rebuttal evidence that Claimant had fully recovered from her work injury.

Employer’s expert did not accept that Claimant had sustained an aggravation of a preexisting condition even though that allegation was set forth in the Claim Petition and was deemed admitted by Employer.  By refusing to accept that Claimant sustained an aggravation of a preexisting degenerative condition, it was not possible for Employer’s expert to give an opinion that Claimant had fully recovered from that injury. The WCJ erred by finding that Claimant had fully recovered from her work injury, limiting the award of compensation to a closed period, and terminating Claimant’s benefits.

Although both doctors opined that Claimant has a psychological impairment as a result of her ongoing physical symptoms, the WCJ did not make specific credibility determinations regarding their testimony or findings regarding the nature of her mental impairment and relation to the work injury. The matter is remanded to the WCJ to render necessary findings of fact and conclusions of law regarding Claimant’s Review Petition.

Reversed In Part, Vacated In Part, And Remanded For Further Proceedings.

 Tashneen Webb v. Prime Healthcare Services, Inc. (WCAB)

Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion

Decided April 29, 2022

Issue:

Whether the WCJ erred in holding that Employer presented an adequate excuse for its late answer?

Background:

Employer filed its answer three days after the deadline set forth in the Workers’ Compensation Act (Act).  The WCJ denied Claimant’s Yellow Freight motion, attributing Employer’s untimely answer to the confusion as to the addresses of Employer.

Holding:

The grant of Claimant’s Yellow Freight motion would not change the outcome. An employer’s admission covers allegations up to the answer deadline. However, the employer may rebut the presumption with evidence. Employer presented the deposition testimony of Dr. Sachs, who testified that as of the date of the IME, November 30, 2018, Claimant had fully recovered from her July 21, 2018, work injury; required no further medical treatment; and could return to work without restriction. In short, even if Claimant’s Yellow Freight motion had been granted and the allegations in the claim petition were accepted as true, Dr. Sachs’ testimony satisfied Employer’s burden of proving that Claimant had fully recovered from her work-related injuries as of November 30, 2018, the date of the IME.  An expert need not believe the claimant has sustained a certain injury so long as the expert opines on whether the accepted injury continues to disable the claimant. Accordingly, the court affirmed the Board’s adjudication.

Affirmed

NEW JERSEY WORKERS’ COMPENSATION

BURDEN OF PROOF – TRAUMATIC EVENT

L.P. v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-3280-19; 2022 WL 1164876

Decided: 4/20/2022

Background:

L.P. appeals from the March 18, 2020 decision of the Public Employees’ Retirement System (PERS) Board of Trustees, which adopted the decision of an Administrative Law Judge (ALJ) denying her application for accidental disability retirement (ADR) benefits.

L.P. was employed as a Rutgers University police officer. On June 9, 2008, L.P. responded to a call that a young boy had entered a pond on campus and disappeared. She entered the pond and commenced the search. She testified that she was not concerned for her safety during the search. L.P. never found the boy. About 20 minutes into her search, the New Brunswick Fire Department arrived and directed her to exit the pond. The NBFD eventually recovered the child’s body, which L.P. never saw since a sheet was used to cover the boat when they recovered the remains.

L.P. continued to work with no issues until three months later, when she reported changes in her behavior like trouble sleeping and eating, and nightmares. L.P. had been in treatment since 2003 for anxiety and depression. L.P. started feeling overwhelmed at work in 2011, which continued through 2012 and 2013, when she suffered a panic attack at work, causing her to go on sick leave for three months. She had a psychiatric evaluation in May 2013, and was found to be unfit for duty. She applied for ADR benefits on June 30, 2013, which was denied, leading to an appeal in front of an ALJ.

Two psychologists testified at her trial, with L.P’s expert stating she had PTSD as a direct result of the event in 2008. The State’s expert testified that he did not see evidence to support a PTSD diagnosis and L.P. did have prior diagnoses of major depressive disorder, generalized anxiety disorder, and alcohol and cannabis abuse. He opined that those diagnoses caused her to be unable to perform her job duties, not the 2008 event.

The ALJ found that the Board correctly denied her application for ADR benefits. The ALJ further stated that to qualify for ADR benefits for a “mental-mental” claim, the member must meet the Richardson criteria as well as the criteria in Patterson v. Board of Trustees, State Police Retirement System. The ALJ found the event did not meet the Patterson standard. The ALJ also found that the June 2008 event was not undesigned and unexpected. The Board adopted the ALJ’s decision, and this appeal followed.

 Holding:

In Richardson v. Board of Trustees, Police, and Firemen’s Retirement System the court set forth a 5-prong test, requiring a member seeking accidental disability benefits to prove, in relevant part that he is totally and permanently disabled “as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member.” Further case law established that what is required is a “traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.”

In Patterson, the Court clarified that a person who develops a permanent mental disability from a work-related traumatic event may qualify for ADR benefits even if it did not involve “physical impact.” In addition to satisfying the Richardson factors, someone with a mental-mental claim must show that the disability 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.” The Court cited numerous examples in case law of the types of events that met the “traumatic event threshold,” which they state demonstrate that to satisfy the Patterson standard, the situations involving the actual or threatened death or serious injury of another person requires the member to have had a sensory experience of the person harmed or in peril.

The Court held that the credible evidence supports the Board’s determination that L.P. did not experience a traumatic event that satisfies the Patterson threshold requirement, as L.P. testified that she did not see or hear the boy during the rescue attempt, and did not see the body after the remains were located. Additionally, L.P. testified that she was not in distress during the search, supporting the Board’s determination that she was never at risk of serious harm.

Affirmed.

NOTICE

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

Superior Court of New Jersey, Appellate Division

No. A-2930-20; 2022 WL 1406361

Decided: 5/04/2022

Background:

Marilyn Holloway appeals from a May 12, 2021 final agency decision by the Board of Trustees (Board) of the Teachers’ Pension and Annuity fund (TPAF), which denied her application for ordinary disability retirement benefits. The Board adopted the findings of fact of an Administrative Law Judge (ALJ), including that she was not totally and permanently disabled from her job duties.

Holloway worked as a teacher starting in 1995. In January 2006, she slipped, injuring both of her knees, which required surgery. She returned to work for the 2007-2008 school year, and worked for another 7 years, until the 2013-2014 school year, when she receive da change in assignment. She then contended she was not able to do her job duties due to shortness of breath and an inability to stand for a significant amount of time.

On February 18, 2016, Holloway filed an application for accidental disability (AD) retirement benefits, alleging she was totally and permanently disabled. The Board denied this application, after which she requested an administrative hearing. Holloway then abandoned her application for AD retirement and requested ordinary retirement benefits. She also sought to include alleged non-orthopedic conditions in support of her disability claim, but did not file a new application.

The ALJ found that Holloway was not permanently and totally disabled from performing her job. Holloway claimed the Board did not consider her non-orthopedic injuries, but the ALJ found they were never presented to the Board and declined to consider them. The Board adopted the ALJ’s decision denying her ordinary disability retirement benefits. Holloway appealed.

Holding:

Holloway contended that the Board should have considered her non-orthopedic disability. The Court found that her argument failed because 1) the regulation does not allow for consideration of conditions not explicitly pled in the application; and 2) she did not indicate non-orthopedic conditions in her application. The N.J.A.C. establishes the requirements for retirement disability applications. The Court stated that they generally defer to an agency’s interpretation of its own regulations. Therefore, the Court held it is obvious that the applicable regulation requires an applicant who asserts medical conditions other than what was alleged in the initial application to withdraw it and resubmit. Based on that conclusion, the Court held that Holloway needed to identify both the orthopedic and non-orthopedic conditions that caused her alleged disability in her initial application, which she failed to do.

Holloway alleged that her application gave notice of non-orthopedic issues when it stated “I am unable to stand for any significant period of time because of severe injuries to both knees…I also cannot walk through hallways… and need to take pain medicine daily which clouds my thinking process[.]”. The Board viewed this application as alleging only orthopedic injuries. The Court concluded that Holloway failed to allege non-orthopedic conditions in her initial application, and the Board’s refusal to consider non-orthopedic conditions was reasonable.

The Court addressed the applicability of the substantial compliance doctrine, which “operates to prevent barring legitimate claims due to technical defects.” The Court found that there as no need to apply the doctrine as her application can be refiled with the inclusion of her non-orthopedic conditions. The Court further held that the Board’s notice of non-orthopedic conditions came after the initial application, and while filing a new application would be a procedural hurdle, Holloway provides no reason besides inconvenience why she did not comply with the regulation. Holloway could still submit a new application indicating her non-orthopedic conditions.

Finally, the Court found that the Board’s determination was adequately supported by the record and Holloway failed to meet her showing to challenge the determination.

Affirmed.

PA & NJ Workers’ Compensation Case Summaries 3/28/2022 – 4/12/2022

May 20, 2022

PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
3/29/2022 – 4/15/2022

ATTORNEY FEES

Speedwell Construction, Inc., and Erie Insurance v. WCAB (Gerald Klinger)

Decided: 03/30/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

Where it is alleged that there was a genuine dispute surrounding claimant’s alleged injuries and that the WCJ’s award encompassed attorney’s fees incurred during prior litigation in which Employer, not Claimant, prevailed, did the Board err in affirming the award of unreasonable contest attorney’s fees?

Background:

On April 18, 2018, during the course of his employment, Claimant suffered a work-related injury to his back while removing the side panels from the bed of a flatbed truck. Employer initially recognized the injury through a Notice of Temporary Compensation Payable (NTCP), which described the injury as an upper back strain. Employer then Issued three Amended NTCPs.  Employer subsequently Issued a Notice Stopping Temporary Compensation (Notice Stopping) and Notice of Workers’ Compensation Denial (Denial), asserting that Claimant suffered no injury.  In support of Claimant’s request for unreasonable contest attorney’s fees, Counsel filed the Application setting forth Counsel’s fees beginning.  The WCJ advised Employer of the Application and that it had 10 days to object thereto. In its response, Employer did not object to the submission of the Application but maintained that it believed that no unreasonable contest attorney’s fees should be awarded.  The Board discerned no error in the WCJ’s finding that Employer’s contest was unreasonable until March 28, 2019. The Board found it noteworthy that Claimant credibly testified that Employer denied his claim because he was having multiple scans and that Employer waited until almost a year after the injury to request the IME.   The Employer did not object to the inclusion of any particular amounts or fees listed in the Application within 15 days after service of the application.” 34 Pa. Code § 131.55(d).

Holding:

Employer lacked any medical evidence to support its denial of Claimant’s benefits at the time it contested the claim, and the Employer did not object to Claimant’s counsel’s inclusion of certain fees in Counsel’s Quantum Meruit Application in the time period required by the Board’s Regulations.  Therefore, the affirmance of the award of counsel fees was proper.

Affirmed.

EMPLOYER-EMPLOYEE RELATIONSHIP – COVERAGE

Penn National Security Insurance Company v. WCAB (Darrel Henline)

Decided: 04/11/2022 – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether the WCJ and the Board erred in determining that Claimant was Lingenfelter’s employee at the time of injury and whether the WCJ and the Board erred in determining that Penn National provided coverage for the work Claimant performed at the time of injury where the policy was improperly coded?

Background:

Claimant filed a claim petition against Lingenfelter and Penn National alleging that he sustained an electric shock injury on August 11, 2016, while working as a laborer for Lingenfelter. Claimant filed a second claim petition against Tree Monkey and its workers’ compensation carrier.  The Underwriting Manager testified that Penn National provided workers’ compensation to Lingenfelter but not to Tree Monkey, because of the “high hazard nature” of Tree Monkey’s business, “working at heights and climbing through trees.” Underwriting Manager confirmed that Penn National’s information regarding Lingenfelter employees’ job duties came from Broker, acting as Penn National’s agent.  The insurance application submitted to Penn National by Lingenfelter contained no material misrepresentations of fact, such that rescission of the policy is in order. The error, if any, was entirely attributable to Penn National. Penn National’s alleged coding error does not provide a basis for it to deny coverage to Lingenfelter for Claimant’s injury, when Lingenfelter’s application contained no material misrepresentations.

Holding:

There was no error in the WCJ’s finding that Claimant was employed by Lingenfelter, and not Tree Monkey, on the date of injury. The existence of an employer-employee relationship is a question of law based upon findings of fact. Lingenfelter had the right to select Claimant, to remove Claimant, to direct “the manner” of Claimant’s performance, and Lingenfelter had the potential power to direct Claimant’s performance.  Claimant’s payroll records corroborated Claimant’s and Owner’s credited testimony and the Owner and Claimant testified that Lingenfelter, and not Tree Monkey, had the right to control, and did control, Claimant’s work performance, which, is the overriding factor.  Further, the WCJ did not err in finding and concluding that Penn National provided coverage for the work Claimant performed at the time of injury.

Affirmed.

EXTRATERRITORIAL JURISDICTION

Hashmatullah Waziry v. WCAB (Alliance Express, Llc And Uninsured Employers’ Guarantee Fund)

Decided: 04/12/2022   – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

Whether the claimant’s out of state work injury qualified for Pennsylvania’s extraterritorial jurisdiction under 77 P.S. § 411.2(a), where it was alleged that at the time of the injury his employment was principally localized in Pennsylvania?

Background:

Employer, a shipping company, operates four trucks and employs four truck drivers. Employer’s office and truck yard are in Philadelphia, Pennsylvania. During this time, Employer and Claimant drove from Texas to New York, from New York back to Texas, and from Texas to Philadelphia. During his nearly four months of employment with Employer, Claimant received all driving assignments, with delivery deadlines, from Employer via phone calls or text messages that Employer sent from its office in Philadelphia. Employer provided Claimant with the truck, chains, and tarps and paid for all gas and tolls. Employer required Claimant to submit driving logbooks to Employer, which Employer maintained at its Philadelphia office. Claimant brought the truck to Philadelphia for maintenance, and he also picked up his paychecks in Philadelphia.  The driving logs showed that the Claimant regularly returned to Employer’s Pennsylvania location after completing his driving assignments. The evidence presented in this matter showed that Employer’s Pennsylvania location was Claimant’s home base. Thus, employment was determined to be principally localized in Pennsylvania.

Holding:

The Board erred in making independent factual findings rather than analyzing whether the WCJ’s factual findings were supported by substantial evidence. Substantial evidence exists to support the WCJ’s factual findings, and, in light of those findings, the WCJ did not commit an error of law.   In light of the WCJ’s factual findings, the WCJ’s legal conclusion that Claimant’s employment was principally localized in Pennsylvania pursuant to Section 305.2(a)(1) of the Act, 77 P.S. § 411.2(a)(1), was free of legal error.

Reversed.

JUDICIAL DISCRETION & SUBSTANTIAL EVIDENCE

Christopher Burton v.  RSVB Couriers (WCAB)

Decided: 04/13/2022   – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether the Board improperly failed to exercise its appellate function, and the WCJ’s Decisions were not supported by substantial evidence?

Background:

On December 1, 2017 Claimant was involved in a motor vehicle accident in the course and scope of his employment as a delivery driver for Employer.  Employer Issued a Notice of Compensation Denial (NCD).  Thereafter Employer Issued a Medical-Only Notice of Compensation Payable (NCP) acknowledging Claimant’s work-related low back strain.   On July 12, 2018, Claimant was terminated from his employment for misfeasance. That same day, Claimant filed two Claim Petitions for compensation benefits in which he alleged, inter alia, that he sustained a work-related injury on July 11, 2018, while lifting a heavy package on his work truck. Claimant described the injury as a “lower back injury” in the nature of a strain or tear, trauma to the muscle.  On December 27, 2018, Employer filed a Termination Petition alleging full recovery as of December 3, 2018.   The WCJ concluded that Claimant did not sustain his burden of proving by competent and credible evidence that he sustained a disabling work-related injury on December 1, 2017, or that he sustained a work-related injury on July 18, 2018. The WCJ also concluded that Employer sustained its burden of proving that Claimant was fully recovered from his work-related injury as of December 3, 2018.

Holding:

The Board and the WCJ committed no errors.  The WCJ’s credibility determinations are supported by ample substantial record evidence. Moreover, the WCJ extensively and exhaustively outlined the reasons for her credibility determinations, and, as a result, these determinations are not subject to appellate review.

Affirmed.

JUDICIAL DISCRETION & SUBSTANTIAL EVIDENCE

Christopher Smith v. WCAB (Advanced Drainage Systems)

Decided: 04/14/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

Whether the WCJ’s finding, that the claimant did not sustain a work-related injury, was supported by substantial evidence?

Background:

In October 2017, Claimant filed a Claim Petition alleging that he sustained a work injury to his right shoulder in the nature of a supraspinatus tendon tear on July 1, 2017, a couple weeks after starting his job with Employer as a downstream technician. The WCJ denied the Claim Petition, determining that Claimant did not sustain a work-related injury. Further, the WCJ explained the reasons he found Employer’s IME Physician more credible than Claimant’s Medical Expert.

Holding:

The WCJ’s determination was supported by substantial evidence of record.  The WCJ made a series of findings that support his determination that Claimant did not sustain a work-related right shoulder injury in July 2017.   The WCJ may accept or reject the testimony of any witness, including a medical witness, in whole or in part. A WCJ’s acceptance of one medical expert’s opinion over that of another cannot serve as a basis for reversible error. A single medical expert’s testimony is a reasonable basis upon which a WCJ may base a finding of fact despite conflicting evidence.

Affirmed.  

IMPAIRMENT RATING EVALUATIONS

Reginald Adams v. WCAB (School District of Philadelphia)

Decided: 03/30/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the claimant underwent an Impairment Rating Evaluation (IRE) on 01/19/2012, but never challenged that determination until after his IRE was declared unconstitutional following the PA Supreme Court’s decision in Protz II, should the date of his reinstatement of benefits be the date of the IRE, or the  date that claimant challenged the IRE via the filing of a Reinstatement Petition?

Background:

The claimant did not file his Reinstatement petition, contesting the IRE and seeking reinstatement, until after the Supreme Court decided Protz II. Further, a modification of Claimant’s disability status was not actively being litigated at the time Protz II was Issued and therefore the Court’s ruling in Dana Holding did not apply.

Holding:

Because Claimant did not challenge the validity of the 01/12/2012 IRE until after Protz II was decided, Whitfield and its progeny mandate that Claimant is not entitled to reinstatement of total disability benefits as of the IRE date. The Board correctly reinstated Claimant’s total disability status as of May 17, 2018, the date he filed his reinstatement petitions.

Affirmed.

Colleen Bundschuh v. WCAB (Gwynedd Veterinary Hospital, Inc.)

Decided: 04/11/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the Claimant’s total disability benefits were only reinstated as of June 4, 2019, was the Employer precluded from seeking a new IRE under Section 306(a.3) until it paid Claimant 104 weeks of total disability benefits, commencing on June 4, 2019?

Background:

Claimant suffered a lumbar strain on March 9, 2004, while in the course of her employment. On March 29, 2010, Employer filed a petition seeking to modify Claimant’s disability benefits from total to partial, based on the results of an October 13, 2009 IRE conducted under former Section 306(a.2) of the Act.  On June 4, 2019, Claimant filed a petition seeking reinstatement of her total disability benefits based on a “worsening of condition.” After hearing testimony, the WCJ reinstated Claimant’s total disability benefits, effective June 4, 2019.  Thereafter, Employer filed a petition to modify Claimant’s total disability benefits based on the results of a September 30, 2019 IRE conducted pursuant to Section 306(a.3) of the Act.  Employer also sought a suspension of Claimant’s disability benefits based on Employer’s right to a credit for previously paid weeks of partial disability benefits under Sections 3(1) and 3(2) of Act 111. The WCJ granted Employer’s suspension petition, as the September 30, 2019 IRE demonstrated Claimant’s WBI rating fell below the 35% threshold established in Section 306(a.3) of the Act, and Employer was entitled to a credit for Claimant’s receipt of partial disability benefits over a period exceeding 500 weeks.

Holding:

Statutes are to be given prospective effect, except where the statute includes clear language to the contrary.  The express language in Sections 3(1)-(2) of Act 111 provide that an employer “shall be given credit for weeks of total disability compensation paid prior to” Act 111’s effective date, and “shall be given credit for weeks of partial disability compensation paid prior to” that date. 77 P.S. § 511.3.  Because the claimant had already received 104 weeks of total disability benefits, the employer was entitled to immediately seek a new IRE under Section 306(a.3) of the Act. The Court rejected the Claimant’s purported loss of her “vested rights,” as a WCJ may, at any time, modify, reinstate, suspend, or terminate an award of benefits upon proof that a claimant’s disability has increased, decreased, recurred, or has temporarily or finally ceased.

Affirmed.

Joseph Jaskulski v. WCAB (Weis Markets Inc.)

Decided: 04/13/2022   – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether Act 111 can be constitutionally applied to workers whose injuries occurred before October 24, 2018, Act 111’s effective date and whether Act 111 contains sufficiently specific language to make the law retroactive?

Background:

On June 23, 2017, Claimant sustained a compensable work-related injury.   On March 18, 2020, Employer filed the Modification Petition to modify Claimant’s WC benefits as of February 6, 2020, based upon an Impairment Rating Evaluation (IRE).  On November 2, 2020, the WCJ granted Employer’s Modification Petition and reduced Claimant’s WC benefits to partial disability status as of February 6, 2020.

Holding:

Act 111 can be constitutionally applied to workers whose injuries occurred before October 24, 2018, Act 111’s effective date.   The Court rejected a similar argument in Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018).   Further, Act 111 does contain sufficiently specific language to make the law retroactive.

Affirmed.

Shane J. Clapper v. WCAB (Commonwealth of Pennsylvania)

Decided: 04/13/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether Act 111 unconstitutionally deprives a claimant of property rights and violates his due process and equal protection rights under the Pennsylvania and United States Constitutions? Whether an IRE under Section 306(a.3) of the Act cannot be performed until regulations have been promulgated to effectuate the provisions of Act 111? Whether the enactment of Act 111 represents an unconstitutional delegation of legislative authority?

Background:

Claimant suffered a work injury to his lower back and right hip on April 24, 2012, while in the course of his employment as a corrections officer for the Commonwealth of Pennsylvania (Employer). Employer accepted liability for Claimant’s work injury through issuance of a notice of compensation payable (NCP).  Based on the results of a June 28, 2019 IRE Employer filed a petition to modify Claimant’s total disability benefits pursuant to Section 306(a.3) of the Act. Claimant disputed the results of the June 28, 2019 IRE and generally challenged the constitutionality of the IRE provisions in the Act. On June 29, 2020, the WCJ granted Employer’s petition and modified Claimant’s disability benefits from total to partial, effective June 28, 2019. Claimant appealed.

Holding:

The Court held that the claimant waived the right to appeal the first two Issues.  Therefore, the Court did not address them.  As for the final Issue, the court previously reviewed, and rejected, this argument in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 316 (Pa. Cmwlth. 2019), affirmed per curiam (Pa., No. 88 MAP 2019, filed August 18, 2020), holding that the General Assembly’s enactment of Act 111 did not violate article II, Section 1 of the Pennsylvania Constitution, as it merely adopted the existing set of standards set forth in the Sixth edition, second printing, of the AMA Guides.  As this Court has previously held that the enactment of Section 306(a.3) of the Act did not violate article II, Section 1 of the Pennsylvania Constitution, the Court affirmed the Board’s order.

Affirmed.

NOTICE

McCarl’s Inc. v. WCAB (Christopher J. Manzo)

Decided: 04/01/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether Claimant provided Employer with timely notice of the alleged work injury where Claimant admitted during testimony that he neither reported his shoulder symptoms to Employer nor reported any work-related shoulder injury throughout the course of his employment? Whether, even if Claimant notified Employer of the alleged work injury in December 2018, Claimant knew of the possible link between his right shoulder symptoms and his work duties in June 2018?

Background:

On March 7, 2019, Claimant filed a claim petition seeking total disability benefits for a March 9, 2018 work injury, which allegedly caused an aggravation of the preexisting degenerative arthritis in Claimant’s right shoulder, necessitating a total right shoulder replacement. Claimant indicated that he notified Employer of his work injury on December 4, 2018. Employer denied that Claimant suffered a work-related injury and asserted that Claimant failed to provide Employer notice of the alleged work injury within 120 days, as required by Section 311 of the Workers’ Compensation Act (Act).  Claimant did not relate his right shoulder symptoms to any specific incident or event; rather, he felt they were caused by “doing overhead stuff” at work. Claimant underwent arthroscopic procedures in 2003, 2004, and 2007 to treat a torn labrum in his right shoulder. Claimant resumed his full-duty job following each surgery. Claimant did not require treatment for any right shoulder symptoms after 2007, and throughout the eight-year period he worked exclusively for Employer, and he had no work restrictions in the use of his right shoulder. Claimant’s right shoulder pain returned in 2017. He described this onset of right shoulder pain as gradual and unrelated to any specific event or trauma.   The WCJ credited Claimant’s testimony regarding his symptoms and the difficulties he experienced because of his work activities, which were supported by the nature of Claimant’s employment and the testimony of his medical expert. Claimant’s considerable period of employment with Employer supported Claimant’s contention that his work duties exacerbated the condition of his right shoulder to the point where it required surgical intervention.

Holding:

Employer’s argument that Claimant provided no notice of the alleged work injury whatsoever had no merit.  The WCJ’s found that Claimant was unaware until December 2018 that his shoulder symptoms were work related and Claimant indisputably sent Employer a letter in December 2018 indicating that he intended to pursue a workers’ compensation claim petition.  Therefore, employer was “generally aware” in December 2018 that Claimant alleged the existence of a work-related injury.

Affirmed.

PENALTY

Luzerne County v. WCAB (Louise Groner)

Decided: 04/11/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the Carrier denied payment for certain medications, did the WCJ err in granting the review and penalty petitions where it was alleged that the subject medications do not treat Claimant’s work injury and where the Claimant received her prescriptions without interruption for Percocet, Oxycontin and Lidocaine patches?

Background:

The indemnity portion of her claim was resolved in a 2003 Compromise and Release Agreement (C&R Agreement), in which Employer acknowledged its continuing obligation to cover the medical expenses related to Claimant’s work injury.  On February 24, 2017, Employer’s third-party administrator sent a letter to Claimant stating that, going forward, only some medications will be approved and paid for, and not others that she was taking.  In response, Claimant filed a petition to review medical treatment, alleging that as of March 1, 2017, Employer stopped paying for reasonable and necessary medical expenses related to her work injury.  She also filed a penalty petition alleging that Employer’s refusal to pay her medical benefits violated the Workers’ Compensation Act.  Prior to receiving the February 2017 letter, she spoke by phone with the Insurance Administrator’s Vice President of Claims. He informed her that Employer would not pay for her pain medication because “it was too expensive.”  In February of 2017, the Vice President of Claims contacted Claimant and Claimant commented, “I don’t know why they bill you people those, you know, it’s not related to that.” He testified that Claimant stated that the only medications related to her work injury were Percocet, Oxycontin and Lidocaine patches, which Employer continues to cover.  Claimant testified that she contacted the Vice President of Claims after the telephone conversation, when she realized she had omitted other medications and also faxed him a complete list of her work-related medications later that day.

Holding:

An employer is responsible for medical payments until a WCJ terminates those benefits. Once liability is established, the claimant is not required to establish that ongoing medical treatment is causally related to the work injury because the injury for which the claimant is treating has already been established. Accordingly, it is the employer’s burden to prove that a medical expense is unreasonable, unnecessary or is not related to the accepted work injury.   The Employer’s argument that it was responsible only for the Percocet, Oxycontin and Lidocaine patches and not for the other medications prescribed to Claimant had no merit as the Employer did not prove that these other medications were unnecessary or not related to the accepted work injury.  Further, the Court disagreed that the record established that Claimant received coverage for Percocet, Oxycontin and the Lidocaine patches, without interruption, as the WCJ found otherwise and the WCJ is the ultimate factfinder and has the exclusive province over questions of credibility and evidentiary weight.

Affirmed.

TIME LIMITATIONS

Donald Shirey v. WCAB (The Bon Ton Stores, Inc.)

Decided: 04/12/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issue:

In a situation where the Claimant experienced no wage loss within three years of the date of his work injury, was it error for the WCJ to deny the Claim Petition and refuse to place Claimant’s benefits in a suspended status?

Background:

On December 29, 2016, Claimant’s left heel got caught while carrying boxes on an escalator in the course of his employment with Employer. This resulted in an injury described as sprain or tear, internal derangement, a trauma or wrenching of a joint, producing pain and disability depending upon degree of injury to ligaments. Employer Issued a medical-only Notice of Compensation Payable (NCP) accepting responsibility for reasonable and necessary medical care for Claimant’s injury.  WCJ denied the Claim Petition but determined that Employer would remain liable for reasonable and necessary medical treatment causally related to the work injury.  Claimant had no disability benefits to suspend.

Holding:

Claimant failed to meet his burden because he was unable to establish any period of disability, either through his own testimony or through unequivocal medical evidence. Accordingly, the Board did not err by affirming the WCJ’s denial of the Claim Petition.  Further, without a preexisting award of compensation, Claimant had no disability benefits to suspend.  There was no error.

Affirmed.

Luzerne County V. WCAB (Dean Allford)

Decided: 04/13/2022  – PA Commonwealth Court

Unpublished Memorandum Opinion

Issues:

Whether the Claimant’s Claim Petition is barred by the statute of limitations where the Claimant was lulled into a false sense of security that his claim had been accepted?

Background:

On August 6, 2018, Claimant filed a Claim Petition relative to a 2013 Injury asserting ongoing partial disability from February 13, 2013, onward. Claimant described the injury as a cervical sprain/strain, left shoulder impingement syndrome, pain in the left shoulder, and a sprain of the left rotator cuff capsule. Employer filed a timely Answer denying all material allegations and advancing several defenses including, inter alia, that Claimant’s claims were barred by the statute of limitations.   The WCJ ultimately found that Claimant sustained a work-related injury on February 13, 2013, in the form of bilateral knee contusions, a cervical sprain/strain, and right shoulder impingement syndrome, with a secondary bursitis, as well as an aggravation of his preexisting degenerative osteoarthritis and disc disease of the cervical spine with radicular symptomatology and that Claimant continues to require modified light-duty work as a result of the 2013 Injury.  The WCJ further found that Employer paid Claimant wages in lieu of compensation for any time missed from work related to the 2013 Injury. The WCJ concluded that, although Claimant’s Claim and Review Petitions were not timely filed, Employer’s payment of medical bills coupled with Employer’s payment of wages in lieu of compensation whenever Claimant missed time from work due to the 2013 Injury lulled Claimant into believing his claim had been accepted, thereby tolling the three[-]year statute of limitations  and was deceived into thinking his claim had been accepted when he was not provided a copy of the Notice of Denial that was allegedly Issued, and he was repeatedly misled into believing his claim had been accepted by the claims representative, Debbie Marinelli.

Holding:

The claimant met the burden to show, by clear and precise evidence, that Employer or Excalibur, by their actions or statements, had lulled him into a false sense of security regarding the filing of his claim.  There is no dispute that Claimant did not file his Claim Petition within three years of the 2013 Injury.  Where 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 of indemnity benefits or wages in lieu thereof.  Further, a claimant may toll the statute of limitations by presenting clear and precise evidence that the employer or its insurance carrier by its actions lulled him into a false sense of security regarding the filing of his claim.   Claimant consistently testified over the course of two hearings that whenever he missed time from work due to 2013 Injury, he was given “comp time” in lieu of wage loss benefits, and he was never required to use vacation, sick, or personal time.   Claimant took immediate action upon discovering the deception. Thus, the WCJ and Board did not err in determining that Claimant’s claim was not time barred.

Affirmed.

UTILIZATION REVIEW

Michael A. Mushow v. WCAB (Doyle and Roth Manufacturing)

Decided: 04/12/2022  – PA Commonwealth Court

Published: June 30, 2022

Issue:

Whether the Board erred in affirming the WCJ’s denial of Claimant’s UR Petition?

Background:

In June of 2019, Employer and its insurer filed a request for a UR determination regarding the treatment rendered to Claimant by Avner R. Griver, M.D., Claimant’s pain management provider, beginning June 7, 2019, and ongoing. Specifically, the request for a UR determination sought a review of the reasonableness and necessity of Claimant’s medical prescriptions for OxyContin 60 mg twice a day, and oxycodone 10 mg four times a day, prescribed by Dr. Griver.  On August 15, 2019, the Utilization Review Organization (URO) reviewer, Dr. Kaplan found the challenged treatment reasonable and necessary, in part. The WCJ found that Claimant’s OxyContin and oxycodone medications are reasonable and necessary, but only “at a continuing tapering dosage with a target total of 90 MED or less.

Holding:

The Court determined that the Claimant was merely seeking to overturn the WCJ’s credibility determinations and accept his preferred interpretation of the evidence in this case.  The Court declined to do so, as determinations of credibility and evidentiary weight, including that of the UR Report, are within the exclusive prerogative of the WCJ, as factfinder.

Affirmed.

NEW JERSEY

L.P. v. Board of Trustees, Public Employees’ Retirement System

Superior Court of New Jersey, Appellate Division

No. A-3280-19; 2022 WL 1164876

Decided: 4/20/2022

Background:

L.P. appeals from the March 18, 2020 decision of the Public Employees’ Retirement System (PERS) Board of Trustees, which adopted the decision of an Administrative Law Judge (ALJ) denying her application for accidental disability retirement (ADR) benefits.

L.P. was employed as a Rutgers University police officer. On June 9, 2008, L.P. responded to a call that a young boy had entered a pond on campus and disappeared. She entered the pond and commenced the search. She testified that she was not concerned for her safety during the search. L.P. never found the boy. About 20 minutes into her search, the New Brunswick Fire Department arrived and directed her to exit the pond. The NBFD eventually recovered the child’s body, which L.P. never saw since a sheet was used to cover the boat when they recovered the remains.

L.P. continued to work with no issues until three months later, when she reported changes in her behavior like trouble sleeping and eating, and nightmares. L.P. had been in treatment since 2003 for anxiety and depression. L.P. started feeling overwhelmed at work in 2011, which continued through 2012 and 2013, when she suffered a panic attack at work, causing her to go on sick leave for three months. She had a psychiatric evaluation in May 2013 and was found to be unfit for duty. She applied for ADR benefits on June 30, 2013, which was denied, leading to an appeal in front of an ALJ.

Two psychologists testified at her trial, with L.P.’s expert stating she had PTSD as a direct result of the event in 2008. The State’s expert testified that he did not see evidence to support a PTSD diagnosis and L.P. did have prior diagnoses of major depressive disorder, generalized anxiety disorder, and alcohol and cannabis abuse. He opined that those diagnoses caused her to be unable to perform her job duties, not the 2008 event.

The ALJ found that the Board correctly denied her application for ADR benefits. The ALJ further stated that to qualify for ADR benefits for a “mental-mental” claim, the member must meet the Richardson criteria as well as the criteria in Patterson v. Board of Trustees, State Police Retirement System. The ALJ found the event did not meet the Patterson standard. The ALJ also found that the June 2008 event was not undesigned and unexpected. The Board adopted the ALJ’s decision, and this appeal followed.

Holding:

 In Richardson v. Board of Trustees, Police, and Firemen’s Retirement System the court set forth a 5-prong test, requiring a member seeking accidental disability benefits to prove, in relevant part that he is totally and permanently disabled “as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member.” Further case law established that what is required is a “traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.”

In Patterson, the Court clarified that a person who develops a permanent mental disability from a work-related traumatic event may qualify for ADR benefits even if it did not involve “physical impact.” In addition to satisfying the Richardson factors, someone with a mental-mental claim must show that the disability 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.” The Court cited numerous examples in case law of the types of events that met the “traumatic event threshold,” which they state demonstrate that to satisfy the Patterson standard, the situations involving the actual or threatened death or serious injury of another person requires the member to have had a sensory experience of the person harmed or in peril.

The Court held that the credible evidence supports the Board’s determination that L.P. did not experience a traumatic event that satisfies the Patterson threshold requirement, as L.P. testified that she did not see or hear the boy during the rescue attempt and did not see the body after the remains were located. Additionally, L.P. testified that she was not in distress during the search, supporting the Board’s determination that she was never at risk of serious harm.

Affirmed.

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

Superior Court of New Jersey, Appellate Division

No. A-2930-20; 2022 WL 1406361

Decided: 5/04/2022

Background:

Marilyn Holloway appeals from a May 12, 2021 final agency decision by the Board of Trustees (Board) of the Teachers’ Pension and Annuity Fund (TPAF), which denied her application for ordinary disability retirement benefits. The Board adopted the findings of fact of an Administrative Law Judge (ALJ), including that she was not totally and permanently disabled from her job duties.

Holloway worked as a teacher starting in 1995. In January 2006, she slipped, injuring both of her knees, which required surgery. She returned to work for the 2007-2008 school year, and worked for another 7 years, until the 2013-2014 school year, when she received a change in assignment. She then contended she was not able to do her job duties due to shortness of breath and an inability to stand for a significant amount of time.

On February 18, 2016, Holloway filed an application for accidental disability (AD) retirement benefits, alleging she was totally and permanently disabled. The Board denied this application, after which she requested an administrative hearing. Holloway then abandoned her application for AD retirement and requested ordinary retirement benefits. She also sought to include alleged non-orthopedic conditions in support of her disability claim but did not file a new application.

The ALJ found that Holloway was not permanently and totally disabled from performing her job. Holloway claimed the Board did not consider her non-orthopedic injuries, but the ALJ found they were never presented to the Board and declined to consider them. The Board adopted the ALJ’s decision denying her ordinary disability retirement benefits. Holloway appealed.

Holding:

Holloway contended that the Board should have considered her non-orthopedic disability. The Court found that her argument failed because 1) the regulation does not allow for consideration of conditions not explicitly pled in the application; and 2) she did not indicate non-orthopedic conditions in her application. The N.J.A.C. establishes the requirements for retirement disability applications. The Court stated that they generally defer to an agency’s interpretation of its own regulations. Therefore, the Court held it is obvious that the applicable regulation requires an applicant who asserts medical conditions other than what was alleged in the initial application to withdraw it and resubmit. Based on that conclusion, the Court held that Holloway needed to identify both the orthopedic and non-orthopedic conditions that caused her alleged disability in her initial application, which she failed to do.

Holloway alleged that her application gave notice of non-orthopedic issues when it stated, “I am unable to stand for any significant period of time because of severe injuries to both knees…I also cannot walk through hallways… and need to take pain medicine daily which clouds my thinking process[.]”. The Board viewed this application as alleging only orthopedic injuries. The Court concluded that Holloway failed to allege non-orthopedic conditions in her initial application, and the Board’s refusal to consider non-orthopedic conditions was reasonable.

The Court addressed the applicability of the substantial compliance doctrine, which “operates to prevent barring legitimate claims due to technical defects.” The Court found that there was no need to apply the doctrine as her application can be refiled with the inclusion of her non-orthopedic conditions. The Court further held that the Board’s notice of non-orthopedic conditions came after the initial application, and while filing a new application would be a procedural hurdle, Holloway provides no reason besides inconvenience why she did not comply with the regulation. Holloway could still submit a new application indicating her non-orthopedic conditions.

Finally, the Court found that the Board’s determination was adequately supported by the record and Holloway failed to meet her showing to challenge the determination.

Affirmed

NJ Case Summaries – 3/28/2022 to 4/12/2022

May 11, 2022

NEW JERSEY

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

Superior Court of New Jersey, Appellate Division

No. A-2308-19; 2022 WL 1086655

Decided: 4/12/2022

Background:

This court affirmed the agency decision of the Board of Trustees of the Police and Firemen’s Retirement System (Board) which held that Straub was not entitled to accidental disability retirement benefits, but instead ordinary disability retirement benefits. Two months after the court affirmed the decision, Straub wrote a letter to the Board seeking to appeal the decision, and receive involuntary disability retirement benefits instead. The Board’s secretary informed Straub that he could not receive involuntary disability benefits because his formed employer did not submit an involuntary disability retirement application on his behalf, and he did not appeal the agency decision within 45 days of the November 15, 2017 notice of decision.

Straub’s counsel wrote to the Board’s secretary demanding the Board take formal action, and requesting that his former employer be allowed to apply for involuntary disability retirement benefits for Straub. Straub’s attorney then sent a “SECOND REQUEST” letter. The secretary of the Board replied and reiterated what she had told Straub. Straub then appealed the Board’s decision denying his request to reconsider its previous decision.

Holding:

The court found that there was no merit to Straub’s request that his benefits should be reclassified to involuntary disability retirement benefits. Statute and regulation govern who is eligible for involuntary disability retirement benefits. Applications for these benefits must include a resolution of the governing body certifying that the employee is disabled and unable to perform their regular or assigned duties.

The court held that the language of the controlling guidelines was unambiguous, and the only party that can apply for involuntary disability retirement benefits for Straub is his former employer through the passing of a resolution stating he is disabled and unable to perform his regular or assigned duties. Since no such resolution was passed, Straub had no standing to request the change in benefits. The court further found that Straub’s reconsideration request was procedurally deficient, as he should have appealed the agency decision of the Board within the 45 day time frame.

Affirmed.

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

Superior Court of New Jersey, Appellate Division

No. A-2976-19; 2022 WL 1026083

Decided: 4/06/2022

Background:

Appellant, Wesley Little, appeals from a February 13, 2020 final agency decision of the Board of Trustees (Board) of the Teachers’ Pension and Annuity Fund (TPAF), which adopted an Administrative Law Judge’s (ALJ) final decision. Little was a special education teacher, when, on October 17, 2012, he was assaulted by a student, who smacked, punched, and kicked Little. Little went to the emergency room, and eventually came under the care of a Dr. Villota, to whom Little self-reported concussions in college. Little was referred to a Dr. Gadson for his “noticeable depression.” Dr. Gadson diagnosed him with PTSD and moderate depression.

In February 2013, Little applied for accidental disability retirement benefits. The Trenton Board of Education submitted a certification for disability retirement, stating that Little resigned on February 28, 2013. Little treated with a Dr. Tracy, Ph.D., who diagnosed him with PTSD and Dysthymia Disorder which were sever enough to preclude him from returning to his job as a teacher. Little was in a car accident on his way to see Dr. Gadson on August 13, 2012, where he suffered several injuries, though he was released from the hospital after 20 minutes because he insisted he was fine. Little then received psychiatric treatment with Dr. Glass, MD.

On July 10, 2014, the Board denied Little’s application for accidental disability retirement benefits, and stated there was no evidence of direct causation of a total and permanent disability. Little appealed, and the matter came before an ALJ. Dr. Glass testified on behalf of Little, and a Dr. Filippone testified on behalf of the Board. In the course of the case, Dr. Glass lost his medical license, and Dr. Tracy was permitted to testify for Little, but Dr. Glass’s testimony was never stricken from the record. On December 12, 2019, the ALJ issued a decision finding Little to be total and permanently disabled, and granting him ordinary disability benefits. The ALJ concluded that Little cannot prove that the assault was the essential significant or substantial contributing cause of the disability. The TPAF adopted that decision, and the instant appeal followed.

Holding:

In Richardson v. Board of Trustees, Police, and Firemen’s Retirement System the court set forth a 5 pronged test, requiring a member seeking accidental disability benefits to prove, in relevant part that he is totally and permanently disabled “as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member.” Further case law established that what is required is a “traumatic event that constitutes the essential significant or the substantial contributing cause of the resultant disability.”

This court held that the sole legal issue before it was whether Little’s disability was a direct result of the October 2012 assault. The court held that the Board’s decision was arbitrary and capricious because it was “untethered” to the substantial and credible evidence of record. The court further held that the record supports only one conclusion: that the October 2012 assault was the “essential significant or substantial contributing cause” of Little’s disability. Citing the Petrucelli case, the court stated that “if claimant here cannot recover after a severe trauma, superimposed on a nonsymptomatic [condition]…no claimant could ever recover accidental benefits in any circumstance where there exists a quiescent underlying condition which had caused no trouble and might never cause any trouble.” (211 N.J. Super. at 289).

Reversed.

March 2022 PA and NJ Case Law Update

Mar 31, 2022

PENNSYLVANIA CASELAW UPDATE

February 28, 2022 to March 28, 2022

DECISIONS OF THE PENNSYLVANIA COMMONWEALTH COURT

Ambler Borough v. WCAB (Giuseppe Gullo)
Decided: 3/28/2022 Unpublished Memorandum Opinion.

Issue:

When litigating a Termination Petition and evidence is discovered which may challenge the competency of claimant’s medical expert and the findings upon which a WCJ relied, is denying the employer the opportunity to submit that evidence reversible error.

Holding:

Taking into consideration the facts, the Commonwealth Court held that the newly discovered evidence and whether or not it was admissible went to the weight of the evidence and credibility and thus questions of law were not raised and the employer’s appeal was denied.

Factual Background:

The claimant operated a street cleaner for the employer. He sustained an injury to his head and neck which was established via a WCJ’s decision granting a Claim Petition. The employer subsequently filed a Termination Petition with regard to certain injuries sustained by the claimant. During that litigation claimant’s medical expert provided a broader description of the work injury. Further, while the Termination Petition was pending employer was able to obtain an updated independent medical exam (IME). For that IME employer was able to obtain prework injury x-rays which showed significant degenerative changes prior to the establishment of the work injury. When the Termination Petition was denied, the employer argued claimant’s medical expert was not competent because he rejected the exact definition set forth in the WCJ’s decision and also the record should have been reopened to address the significant preexisting conditions noted on the prework injury x-ray. With regard to the incompetence of claimant’s medical expert, the Court reported that the medical expert simply explained the basis upon which his opinions were based and did not reject the WCJ’s work definition, thus as a matter of law, that medical expert opinion was to be assessed on the grounds of credibility, not on competency. With regard to the pre-existing x-rays, the Court noted that the employer represented, when the IME was requested, that none of the experts considered for the second IME would be used for the pending Termination Petition. The Court explained that thus, the WCJ was entirely justified in not allowing the evidence to come in and the denial of the submission of that evidence did not make the WCJ’s decision not reasoned. Therefore, the Termination Petition was properly denied based on the Judges weighting of the credibility of the evidence presented.

Esxix Holdings, LLC v. WCAB (M. Dengel)
Decided: 3/25/2022 Unpublished Memorandum Opinion

Issue:

When a Claim Petition is resolved via a WCJ’s acceptance of a Stipulation of the parties which directs payment, and payment pursuant to that decision is delayed while awaiting the return of an LIBC 760 (Verification of Employment/other Income), is the employer’s delay while waiting for that form a violation of the Act?

Holding:

The Court held that when an employer is ordered to pay Workers’ Compensation benefits but refuses to do so the employer has violated the Act and may be subject to a penalty. Since the WCJ’s Decision ordered payment, the employer was not justified in waiting the return of the LIBC 760 form.

Factual Background:

The parties were litigating Claim and Penalty Petitions. By Stipulation, the parties agreed to the grant of the Claim Petition, the payment of wage loss benefits, medical benefits, and a 20% counsel fee on all compensation due. After receiving the Judge’s Decision, but before making payment, the adjuster sent out the LIBC 760 form seeking to verify that there were no other income or wages the claimant received. Eventually, claimant’s counsel was made aware that the delay in paying the claimant was due to the failure to return the signed form. The form was signed and returned to the employer immediately and claimant filed the Penalty Petition. The WCJ, the Appeal Board, and the Commonwealth Court concluded the employers reliance on the failure to receive the LIBC 760 form was not justified. Especially in light of the fact, according to the Appeal Board and Commonwealth Court, that there was a Decision ordering payment.

John Bark v. WCAB (Sooner Steel, LLC)
Decided: 3/21/2022 Published Opinion

Issue:

In an instance where a laborer had neither written nor oral contract with an employer and was injured in a motor vehicle accident while riding in a truck owned by the employer and driven by one of the employer’s employees, did injuries occur during the course and scope of employment?

Holding:

The phrase course of employment is a factual assessment in which it must be determined whether an employee is stationary or traveling. If an individual is a traveling employee the course and scope of the employment is broader and is determined by a case by case basis based on whether the employee’s job duties include travel, whether the employee works on his employer’s premises, or whether he had no fixed place of work. If an individual is not a traveling employee, they are not in the course and scope of their employment at the time if the injury occurs while going to or coming from work.

Factual Background:

The claimant was a Pennsylvania resident who worked frequently for the employer when they needed extra help. Claimant did not have an oral written contract with the employer. On the date in question, the employer needed extra help and had one of its employees take a company truck, pick the claimant up from work, and bring him to a job location in New Jersey. Claimant was reporting at that location to work for a few days. Employer also instructed the coworker to drive the claimant home at the end of the shift. While traveling home, both workers were involved in a significant accident.

In reaching its conclusion, the Court noted that the fact that claimant did not have a written contract of employment or that the injury occurred while a passenger in one of his employer’s vehicles were not dispositive. Instead, the Court noted that these factors along with the fact that there was a particular rate of pay disbursed given the distance of the New Jersey job site from the home office, was akin to a travel stipend and placed the claimant within the employment contract exception to the coming and going rule. As a result, the Court reversed the WCJ and Appeal Board conclusion that claimant was not in the course and scope of employment and remanded for further proceedings.

Thomas Farrier v. WCAB (Lee’s Painting and Roof Coating)
Decided: 3/22/2022 Unpublished Memorandum Opinion

Issue:

In an instance where the parties are litigating a second Termination Petition and the WCJ found certain conditions appear to permanently alter a body part, could employer successfully obtain a Termination of benefits?

Holding:

Yes, the evidence presented established that the claimant’s status had changed since the prior Termination Petition and the permanent altering of the body part does not necessarily mean that an individual cannot fully recover.

Factual Background:

Claimant was employed as a painter and fell from a ladder injuring his knee and other body parts. The parties litigated a Termination Petition in which claimant was found to have not fully recovered. When discussing the injuries, the Judge remarked on one of the findings that because of three surgeries to the knee, there was a permanent alteration to the internal structures of the knee. The claimant had not recovered.

For the subsequent Termination Petition, the employer’s medical expert pointed out that the claimant had degenerative arthritis in his knee which was part of a natural progression and not a progression due to the work incident. Employer’s medical expert found that the claimant fully recovered from his injuries. The WCJ granted the Termination Petition.

On Appeal, claimant argued that the employer did not adequately establish a change in the claimant’s physical status which justified a termination of benefits. Said conclusion was rejected by the Commonwealth Court. They analyzed the facts presented and indicated that there was sufficient evidence of the change in claimant’s status since the prior Termination Petition even where magic words may not necessarily been employed to establish that change.

Ayona Lee v WCAB (Fresh Grocer Holdings, LLC)
Decided: 3/4/2022 Order that the December 22, 2021 Decision to be published.

Issue:

Under the Medical Fee Review Regulations, a “provider” is entitled to file a Fee Review. The issue presented was who makes the judicial determination that an entity is a provider, a Fee Review Hearing Officer (FRHO) or a Workers’ Compensation Judge (WCJ)?

Holding:

The Court held a FRHO must decide if an entity is a provider entitled to file and pursue a fee review.

Background:

On March 4, 2022 the Commonwealth Court converted this decision from unreported to published, meaning the decision becomes binding precedent.

Under the Act, a provider may challenge the amount of a bill paid and/or the timeliness of payment through the fee review process. Here, the claimant sustained significant burns at work and was transported to the level 1 Trauma center at Penn Presbyterian and then the level 2 Trauma and Burn center at Crozer Chester Medical Center.

The employer initially accepted liability by issuing a Notice of Temporary Compensation Payable (NTCP). Within the allotted timeframe, after issuing the NTCP, the employer issued a Notice Stopping Temporary Compensation and a Notice of Denial.

The Provider Recovery Network (PRN) filed a fee review concerning the amount and timeliness of payments for the bills generated by the Trauma centers. The Court’s decision did not indicate whether PRN was contracted by the trauma centers to pursue their debts, or purchased the debt and pursued payment for itself. The FRHO found he lacked jurisdiction to determine if PRN was a “provider” entitled to file the fee review. Thus, as a result the FRHO did not issue an order regarding the payments which needed to be made for the Trauma center treatment. PRN did not appeal this decision by the FRHO.

Claimant subsequently filed a Penalty Petition alleging the employer violated the Act by failing to properly pay her medical bills. In defense of the Penalty, the employer argued the issues raised must be addressed through the fee review process and thus, the WCJ lacked jurisdiction. The employer also argued the WCJ did not have jurisdiction to decide whether PRN was a “provider” to whom payment was due, and the correct amount of payment. In fact, the employer argued, the Commonwealth Court’s Armour Pharmacy decision held the FRHO is responsible for determining whether or not PRN was a provider. The WCJ agreed with the employer and dismissed the Penalty Petition for lack of Jurisdiction. The Appeal Board Affirmed the WCJ.

The Commonwealth Court affirmed the Appeal Board and dismissed the claimant’s appeal. The holding in Amour Pharmacy made clear that FRHOs are responsible for deciding if an entity is a provider entitled to pursue a fee review. The Court explained that since claimant was not a party to the prior fee review, she was not deprived of any rights and the employer did not violate the Act.

Hughes v WCAB (Wawa, Inc.)
Decided: 3/4/2022 Order that the December 13, 2021 decision will be published.

Issue:

Is a Utilization Review (UR) valid when the reviewing physician was not provided with the names and records from all of claimant’s treating physicians, and the reviewer may not have practiced in the exact same specialty of the physician under review?

Holding:

The UR reviewer need not be provided with names and records of all the claimant’s treating physicians in order to perform a UR. Further, the label for a medical specialty does not by itself determine if a UR reviewer practices in the same field as the provider under review. The WCJ, based on weighing of the evidence, will determine if the UR reviewer and the provider under review are of the same specialty.

Background:

On February 28, 2022, the Commonwealth Court converted this decision from unreported to published, meaning the decision becomes binding precedent.

The claimant, a delivery driver, sustained a work-related low back injury which was accepted via a Notice of Compensation Payable (NCP). The parties resolved the wage loss portion of claim through a Compromise and Release Agreement (C&R). The employer’s obligation to pay medical benefits continued. The C&R significantly expanded the work-injury description from that set forth in the NCP.

Several years after the C&R was approved, the employer filed UR requests of treatments provided by two of claimant’s treating physicians. Both UR requests sought a review of the frequency of office visits and prescription medications. Both physicians were prescribing OxyContin. Both UR determinations found the care at issue was not reasonable or necessary.

Claimant filed Petitions to Review both UR Determinations.

The WCJ found the OxyContin was neither reasonable nor necessary. The UR reviewers were found to be credible and convincing. Claimant appealed. The Appeal Board Affirmed the WCJ.

In his Appeal to the Commonwealth Court, claimant argued the URs were defective because the UR reviewers were not provided with claimant’s medical records from providers other than those under review. The Court rejected claimant’s argument, finding a UR reviewer must reach a conclusion based on the records provided, and the UR does not become flawed by failing to possess or know the identity of all of claimant’s treating providers.

Claimant also argued one of the UR reviewers was not of the same specialty or expertise as the physicians whose records he reviewed. The Court rejected this argument concluding the UR reviewer and treating physician provided similar treatments in their practices and thus whether they were in the same medical specialty, was an issue of credibility, not a disqualifying factor.

Geisinger Wyoming Valley Med. Ctr. v WCAB (Drozea)
Decided: 2/28/2022; Unreported Memorandum Opinion

Issue:

When a medical expert testified to a causal connection between a work incident and injury, but the expert was not aware of prior trauma and preexisting symptoms when reaching that opinion, but the claimant testified to the immediate onset of symptoms following the work incident, may a WCJ find the recent work injury was caused by that incident.

Holding:

Given the claimant’s testimony and the medical testimony, there was sufficient evidence of causation in the record to conclude the WCJ’s decision granting the Claim petition, was supported by substantial competent evidence.

Background:

Claimant was employed as an X-Ray technician. Claimant was injured when a falling patient grabbed claimant’s arm to break their fall. Claimant sustained neck/shoulder injuries which were initially acknowledged through a Notice of Temporary Compensation Payable (NTCP). Claimant continued to work. Within the appropriate timeframe after issuing the NTCP, employer issued timely Notice Stopping Compensation and Notice of Denial. Claimant’s symptoms continued for several months, and his physicians were considering surgery. Claimant then filed a Claim Petition seeking ongoing acknowledgment of the injury.

The parties proceeded by reports and there were medical opinions in which some of the claimant’s past medical history was not considered, and other medical opinions which were not clear as to what specifically, if anything, was caused by the work incident. The claimant’s testimony, however, was clear as to relationship between the work incident and onset of symptoms. The employer argued before the WCJ, and on appeal, that the medical opinions were not competent because they did not have an accurate history or were ambiguous.

The Court relied on established precedent that a claimant’s testimony about the immediate onset of symptoms may, depending on the evidence presented, establish a causal connection between incident and injury. Here, the Court explained, the WCJ was responsible for weighing the evidence and there was substantial competent evidence to conclude there was a causal connection between the claimant’s symptoms and the work incident.

NEW JERSEY CASELAW UPDATE

February 28, 2022 to March 28, 2022

DECISIONS OF SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

Streeper v. State of New Jersey
Decided: 3/08/2022, No. A-1625-19; 2022 WL 678395

Factual Background:

Appellant, Gary Streeper, appeals from the November 28, 2019 order of a judge of compensation dismissing, as untimely filed, his application for review or modification of a compensation award.

Streeper injured his right leg and knee on April 15, 2003 while he was employed by the State. He filed a claim for workers’ compensation benefits, they were awarded, and he received authorized medical treatment. On September 8, 2008, a judge approved a settlement for the 2003 incident. Streeper subsequently sought additional medical treatment and compensation for his injuries, including an authorized knee replacement surgery, follow-up treatment, and additional compensation. He received his last temporary disability compensation on April 8, 2011 and received his last payment for medical treatment on February 1, 2012. On July 24, 2019, Streeper filed an application for review or modification of the award relating to the 2003 incident, alleging that his injuries had worsened after the settlement. The State filed an answer asserting that the workers’ compensation court lacked jurisdiction to review the application because it was filed beyond the 2-year statute of limitations. The court considered this to be a motion to dismiss.

Streeper acknowledged that the application to review or modify was beyond the statutory limitations period, but argued the judge should exercise her authority to relax the 2 year period in the interest of justice and so effectuate the remedial purpose of the WCA, reopen the judgement related to the 2003 claim on the basis of a mistake, or amend a then-pending, timely filed 2013 application for review or modification of an award he received for a claim relating to a 2000 injury to include a request for review or modification of the award relating to the 2003 incident. Streeper argued that when he sought additional treatment for his 2003 incident, he also sought additional treatment relating to his 2000 incident, and beginning in September 2010, at the direction of the Division of Workers’ Compensation, the additional medical treatment for both dates of injury were administered under a single petition number.

The judge of compensation issued an oral opinion granting the State’s motion. She concluded that she was without authority to depart from the 2-year statute of limitations, and dismissed Streeper’s July 24, 2019 application for lack of jurisdiction. In so holding, she concluded she lacked the authority to amend the November 25, 2013 application to include both claims. The instant appeal followed.

Holding:

The court, citing voluminous case law, states that the judge of compensation erred when she concluded that she lacked the authority to consider whether Streeper’s counsel’s purported mistake with respect to the administrative consolidation of the two claims (the 2000 and 2003 claims) warrants either reopening the September 2008 judgment on the 2003 claim, or amending the November 2013 application for review or modification to include both the 2000 and 2003 claims.

Order vacated and remanded.

Russo v. Board of Trustees, Public Employees’ Retirement System
Decided: 3/04/2022, No. A-0591-20; 2022 WL 628461

Factual Background:

Appellant, Michael Russo, alleged that he sustained a neck injury in November 2010 when he fell down stairs while working as an operations undersheriff in the Hunterdon County Sheriff’s Office. He applied for accidental disability retirement benefits, which was denied by the Board of Trustees of the Public Employees’ Retirement System (Board). After appeal and transfer to the Office of Administrative Law for a hearing, the Administrative Law Judge (ALJ) found that appellant failed to demonstrate that he was totally and permanently disabled and incapable of performing the duties of an operations undersheriff.

The issues presented by appellant for determination by the ALJ were: whether he was totally and permanently disabled from the performance of his duties as undersheriff, and whether his alleged disability directly resulted from his November 2010 incident. Dr. Nehmer testified on behalf of the appellant, who relied on a 2013 cervical MRI for his diagnoses; and related those diagnoses to the November 2010 incident. He admitted he did not review a cervical MRI taken two days after the incident. Dr. Rosa testified on behalf of the Board, and thought that the MRI positive findings were a result of age-appropriate degeneration. The ALJ found Dr. Nehmer’s testimony to be not credible and affirmed the Board’s denial of accidental disability benefits. Appellant contended on appeal that the Board’s decision was arbitrary, capricious, and not supported by the evidence.

Holding:

The court, citing case law, stated that “[o]ur Supreme Court” has held that to receive accidental disability benefits, a claimant must prove: (1) that he is permanently and totally disabled; (2) as a direct result of a traumatic event that is identifiable as to time and place, undesigned and unexpected, and caused by a circumstance external to the member (not as a result of pre-existing disease that is aggravated or accelerated by the work); (3) that the traumatic event occurred during and as a result of the member’s regular or assigned duties; (4) that the disability was not the result of the member’s willful negligence; and (5) that the member is mentally or physically incapacitated from performing his usual or any other duty.

The ALJ found that appellant failed to meet his burden of causation, as his medical expert relied on an MRI from 3 years after the incident, did not review the MRI taken 2 days after the incident, and that the 2013 MRI showed “age-appropriate” arthritic changes. The court stated it was satisfied that the ALJ’s decision that appellant did not meet his burden as to causality and the Board’s subsequent adoption of the opinion were based on the substantial, credible evidence in the record.

Affirmed.

NJ Workers’ Compensation Cases 2-12-22 to 2-28-22

Mar 9, 2022

NEW JERSEY

In the Matter of Thailia Tretsis, Middlesex County, Sheriff’s Office

Superior Court of New Jersey, Appellate Division

No. A-3682-19; 2022 WL 453869

Decided: 2/15/2022

Background:

Appellant, Thalia Tretsis, appeals from the May 1, 2020 final administrative determination of the Civil Service Commission removing her from her position as a sheriff’s officer, but modifying the removal to a resignation in good standing. The Commission adopted the findings of fact and conclusions of law from the initial decision of the Administrative Law Judge (ALJ) who found the appellant could not perform her duties at the time of her termination due to a knee injury from which she could not recover.

Appellant injured her right knee on March 6, 2015, when she fell on ice in her job-site parking lot. Appellant had a workers’ compensation claim for this incident. Between March and August 2015, she treated with two orthopedic doctors, and eventually returned to light duty and then full duty. Over a year later, when appellant complained about continuing issues with her knee, she was referred to Dr. Gallick, who eventually performed arthroscopic surgery on her knee in January 2017. Dr. Gallick originally testified that patients with similar conditions usually return to light duty in a short period of time, and then full duty in three months. However, appellant continued to complain of pain and weakness through May 2017. Dr. Gallick then sent Claimant for a functional capacity exam (FCE), which was performed in June 2017. The results confirmed to Dr. Gallick that appellant could not perform the full duties of a sheriff’s officer, and he opined that she had reached MMI.

Appellant requested a second opinion, and was sent to Dr. Epstein, who recommended injections, which she received in August 2017. Appellant was sent for a second FCE in September 2017 when she was still complaining of pain. Dr. Gallick and Dr. Epstein both opined that Claimant had reached her MMI after reviewing the second FCE. In September 2017, the County sought to remove appellant from her position due to the FCE. A hearing was held, and appellant was removed as of November 14, 2017. Appellant requested a hearing, and the matter was transferred to the OAL, where another hearing took place. The ALJ concluded that appellant was unable to perform the duties of a sheriff’s officer at the time her employment was terminated. The ALJ evaluated the credibility of the witnesses, which included Drs. Gallick and Epstein for the County, who were found to be credible, and Dr. Polakoff for the appellant, who was found to be not credible. The ALJ then concluded that appellant was incapable of performing her job duties at the time of her termination, and because her separation was not due to conduct or action worthy of discipline, the termination was modified to a resignation in good standing. The Commission thereafter adopted the decision as the final administrative decision. Appellant appealed.

Holding:

The court holds that appellant’s arguments are “so lacking in merit as to not warrant much discussion in a written opinion.” They held that applying their highly deferential standard of review, the court is satisfied that the record amply supports the Commission’s determination that the appellant could not perform the duties of a sheriff’s officer when she was removed from her employment. The court further opined that the ALJ and the Commission considered all of the medical and lay evidence and concluded that the County’s proof was more persuasive than appellant’s single witness. The court held that the ALJ’s findings are fully supported by the record, and her legal conclusions are unassailable.

Affirmed.

Smith v. Township of South Hackensack

Superior Court of New Jersey, Appellate Division

No. A-3258-20; 2022 WL 497657

Decided: 2/18/2022

Background:

Plaintiff, a volunteer firefighter, was struck by a South Hackensack firetruck at a time when, as he alleges, it was being used by the individual defendants to bar hop. N.J.S.A. 34:15-43 provides that “each and every member of a volunteer fire company doing public fire duty…who may be injured in line of duty shall be compensated” under the Workers’ Compensation Act. Despite this, plaintiff filed an action for personal injury damages in the Law Division against South Hackensack and the individual defendants.

Seventeen months after the filing, defendants moved to dismiss, asserting that the trial court lacked subject matter jurisdiction, that the Division of Workers’ Compensation had exclusive jurisdiction, and that plaintiff’s sole remedy was within the Workers’ Compensation Act. The motion judge rejected the subject matter jurisdiction argument, but did find the Division possessed primary jurisdiction, and transferred the matter. Despite this transfer, the Division would not recognize the matter and advised plaintiff that he had to file a petition for benefits in order to have the matter adjudicated. Plaintiff moved for a reinstatement of his complaint, but it was denied.

The Division’s supervising judge reconfirmed that the matter would not be adjudicated unless a petition for benefits was filed, regardless of the transfer order. Plaintiff again moved in the trial court for reconsideration, and this was again denied. Plaintiff then filed a notice of appeal and moved in the Superior Court for a determination about the appealability of the trial court order transferring the matter to the Division. This appeal was granted.

Holding:

The invocation of the primary jurisdiction doctrine was a mistaken exercise of the judge’s discretion. The New Jersey Supreme Court recognizes that the superior court has jurisdiction to determine the existence of the employment relationship and such other employment issues raised by way of defense to the employee’s tort action. The court finds that the four recognized grounds for the invocation of the primary jurisdiction doctrine weighs heavily in the plaintiff’s favor. The court concluded that the judge abused her discretion in putting plaintiff through the burden of prosecuting a claim in another forum for the sole purpose of proving that forum had no jurisdiction.

The court further held that the plaintiff commenced his action in superior court, and as he is the “master of his complaint,” was entitled to pursue it in the superior court until defendants show the occurrence falls within the workers’ compensation laws. The court order was reversed, the transfer order was vacated, and the matter was remanded for entry of an order denying defendants’ motion to dismiss.

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