Workers' Compensation Update
ATTORNEY FEE LIMITS
Seitzinger v. Commonwealth of Pa., 25 A.3d 1299 (Pa. Cmwlth. July 28, 2011).
The Commonwealth Court upheld the attorney fee limits in the Act, and disagreed that this violated the Fourteenth Amendment of the United States Constitution on vagueness grounds.
AVERAGE WEEKLY WAGE
Pike v. WCAB (Veseley Brothers Moving), 22 A.3d 332 (Pa. Cmwlth. May 23, 2011), re-argument denied, July 13, 2011.
Claimant contended that the WCJ erred by including substantially lower earnings from periods before Claimant received a promotion, and by subtracting all of the expenses Claimant listed on his 2004 federal income tax returns (such as depreciation and home office business use deductions) rather than only those expenses that were actually paid.
Claimant argued to the Commonwealth Court that the WCJ failed in not applying Hannaberry HVAC v. WCAB (Snyder, Jr.), 834 A.2d 524 (Pa. 2003). In that case, Claimant worked on a part-time basis for Defendant while he was in high school and on a full-time basis following graduation. The Court excluded the part-time earnings in order to “address the economic reality of a worker” who was transitioning from part-time to full-time work immediately before his work injury.
The Commonwealth Court in the case at hand did not find that the Claimant’s earnings disparity was as disproportionate as that in Hannaberry. The Claimant had earned approximately $300-350 per week on average in the first two periods. He then earned an average of $1,559.54 per week in the last period. Also, the Court found that it could not disturb the WCJ’s finding as to Claimant’s business depreciation and home office business expense deductions because there was adequate support for this in the record. Accordingly, the Court affirmed the Board’s decision that had affirmed the WCJ’s decision.
COURSE AND SCOPE OF EMPLOYMENT - EVIDENCE
Werner v. WCAB (Greenleaf Service Corp.), --- A.3d ---, 2911 WL 3847405, No. 25 CD 2011 (Pa. Cmwlth. September 1, 2011).
The Commonwealth Court upheld the WCJ’s and WCAB’s decision to deny Claimant’s claim for fatal benefits as they found that he was not within the course and scope of his employment when he died. Claimant worked primarily out of his home and had an office in his basement. On the date of his death, his wife found him deceased in their basement. She also found his glasses and cell phone dropped on the ground right outside the basement door that led to the outside. The WCJ found, and the Commonwealth Court agreed, that Claimant was not within the course and scope of his employment because there was no competent evidence showing exactly when he died and, therefore, no evidence of what he was doing when he died. Without evidence to demonstrate that he was in the course and scope of employment, his claim for fatal benefits was denied.
COURSE AND SCOPE OF EMPLOYMENT – FIRING OF CLAIMANT
Little v. WCAB (B&L Ford/Chevrolet), 23 A. 3d 637 (Pa. Cmwlth. July 28, 2011).
The Commonwealth Court affirmed the denial of fatal claim petition where the decedent suffered a heart attack approximately two days after receiving a letter from his employer that terminated the employment relationship. The Court held that where a work injury does not appear to have a relationship to events associated with employment activities, but instead relates to a final act that is only work-related in that the event alters the employment relationship (such as the receipt of a termination letter), an injury associated with that final act does not arise in the course of employment and, therefore, is not compensable.
COURSE AND SCOPE OF EMPLOYMENT – FURTHERANCE OF BUSINESS
Lewis v. WCAB (Andy Frain Services, Inc.), --- A.3d ---, 2011 WL 4389214, No. 1501 C.D. 2011 (Pa. Cmwlth. Sept. 22, 2011).
The WCJ decided Claimant was not entitled to benefits because he was not within the scope of his employment when his injury occurred and he violated a positive work rule. Claimant testified inconsistently and confusingly, being unable to estimate the distance that he walked prior to allegedly falling. Claimant also testified to different facts at a hearing held four months later. The WCJ credited employer’s witness testimony, who explained that Claimant was to sit and watch a car in a tent and not leave the tent. Claimant was on the employer’s premises but he was not in furtherance of its business or affairs because he was told to radio someone if he needed help or needed a break, which he did not do when he left the tent area. The WCAB and the Commonwealth Court affirmed but the Court declined to review the question of whether Claimant violated a positive work rule.
FEE REVIEW – NOTICE TO PROVIDER
Jaeger v. Bureau of Workers’ Comp. Fee Review Hearing Office (Am. Casualty of Reading c/o CNA), 24 A.3d 1097 (Cmwlth. Ct. June 22, 2011).
Dr. Jaeger appealed the decision of the Fee Review Hearing Officer that authorized the insurer to reduce its payments to him for vertebral axial decompression (VAX-D). The Commonwealth Court upheld that prior decision, finding that the insurer met its burden of having to provide Dr. Jaeger with written notice of the proposed change in payment. Dr. Jaeger argued that the insurer failed to prove that it sent to him the required ten-day notice or that he received the same. However, the Commonwealth Court noted that this is not the proper burden of proof as the insurer, under 34 Pa. Code § 127.07, simply needs to prove that it notified the provider in writing of the proposed changes and the reasons for them. In this case, records kept in the reviewing company’s computer were sufficient.
FEE REVIEW – WRIT OF MANDAMUS
Crozer-Chester Med. Ctr. v. Dept. of Labor & Indus., Bureau of Workers’ Comp., Healthcare Serv. Review Div., 22 A.3d 189 (Pa. May 25, 2011).
Claimant suffered a work-related injury and the employer issued a Medical Only NCP. Claimant underwent surgery to repair an umbilical hernia at Crozer in February 2006. On March 20, 2007, Crozer sent records and billed employer's insurer, Zurich, for the treatment it provided to Claimant. Zurich neither paid that bill or issued a timely Notice of Denial, according to Crozer. Crozer filed an application for fee review on May 23, 2007. In March 2008, the Department rejected and returned the application as premature, because it found that there was “an outstanding issue of liability/compensability for the alleged injury.” The Department also denied Crozer's request for a de novo administrative hearing.
The Pennsylvania Supreme Court agreed with the Commonwealth Court that the Department acted properly in dismissing Crozer's fee review application as premature pursuant to the Department's Regulation 127.255(1). The Court noted that a request for mandamus relief requires a question of whether the factual averments in Crozer's petition for review were legally sufficient to state a cause of action “to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff.” Delaware River Port Auth. v. Thornburgh, 493 A.2d 1351, 1355–56 (Pa. 1985). Crozer's application did not raise either of the two narrow issues appropriate for fee review. Rather, Crozer sought a legal decision from non-qualified personnel within the Department on whether it was entitled to payment at all in view of the NCP. Accordingly, the court found that this is the type of decision that is within the province of Workers' Compensation Judges.
FULL RECOVERY – MEDICAL EVIDENCE
O’Neill v. WCAB (News Corp. Ltd), --- A.3d ---, 2011 WL 4090790, No. 2203 C.D. 2011 (Pa. Cmwlth. 2011), publication ordered on September 15, 2011.
Claimant appealed the WCJ’s decision that granted Defendant’s Termination Petition, claiming that the Defendant’s doctor’s opinion that the Claimant did not suffer the exact injury that the WCJ found to be the accepted work injury in a prior decision rendered his opinions incompetent. The Commonwealth Court found that when it reviewed the doctor’s testimony as a whole, it was not incompetent and the doctor did not outright reject that said injury was sustained, he was just skeptical. Claimant also claimed that the doctor’s opinions were equivocal because he stated that Claimant had no objective findings upon physical examination, but then mentioned that Claimant had tenderness and a slightly decreased grip strength. The Court reasoned that these two narrow statements were not enough to render his opinions equivocal and, therefore, it affirmed the WCJ’s and WCAB’s decisions.
HEARING LOSS – APPORTIONMENT
McClure v. W.C.A.B. (Cerra Fabricated Products and the PMA Group), --- A.3d ---, 2011 WL 4089381, No. 388 C.D. 2011 (Pa. Cmwlth. August 26, 2011).
Claimant began working for Accurate Forging Corp./Delta American in 1972 and continued working there when that employer’s assets were acquired by Cerra in 2000. Claimant’s binaural hearing loss in 1997 was 18.1%. By 2004, it increased to 24.69% and Claimant filed a Claim Petition. The Commonwealth Court found that the WCAB properly determined that Cerro was not a successor-in-interest and was not responsible for 100% of Claimant’s hearing loss because there was not a merger or a consolidation between the two employers, and the transaction between Accurate and Cerro excluded workers’ compensation claims. The Court concluded that Cerro was only responsible for specific loss benefits based on a 6.57% impairment, based on the difference in audiograms before Claimant’s employment with Cerro and in 2004, as well as 26.61% of Claimant’s medical benefits, based on the percentage of time that Claimant worked for Cerro.
IRE'S
Westmoreland Regional Hosp. v. WCAB (Pickford), --- A.3d ---, 2011 WL 4414454, No. 1188 CD 2009 (Pa. Cmwlth. September 23, 2011).
The WCJ and WCAB denied Defendant’s Modification Petition because it was inconsistent that Claimant’s IRE found a 0% impairment rating while she was asymptomatic at the time of the IRE, but she was later symptomatic, and they, therefore, rejected the results of the IRE. The Commonwealth Court reversed and granted the Petition. The Court noted that this case presented an unusual challenge because Claimant's RSD would wax and wane. Claimant offered no evidence to contradict the IRE physician’s testimony that he did not find objective signs of RSD on the day of the IRE.
JOB OFFER SUFFICIENCY
Vaughn v. WCAB (Carrara Steel Erectors), 19 A.3d. 545 (Pa. Cmwlth. Mar. 11, 2011), publication ordered June 3, 2011.
The Commonwealth Court found that Employer’s May 14, 2008 letter to the Claimant sufficed as notice of the open position. The letter explained that the Claimant’s “activities at work [would] be modified to accommodate the restrictions identified” by the most recent IME physician’s opinion. Other than the offer to modify the position as per the IME release, the notice of the job position included that he was to return to his pre-injury position at his regular rate of pay, and asked that he report to the employer on a certain date with a specific person. Even though the letter did not state specifically what the Employer intended for the Claimant to do upon his return to work, having been employed there in the past, the Court determined that the Claimant was well aware of what portions of the job he would be performing as being within his work restrictions. Therefore, the Court affirmed the granting of suspension petition.
MAILING FOR TIMELY FILING
Mills v. W.C.A.B. (School District of Harrisburg), 24 A.3d 1094 (Pa. Cmwlth. June 15, 2011).
The Commonwealth Court addressed whether the WCAB was correct in quashing an appeal when the WCAB received the appeal 5 days after the filing deadline and a private postmark, not a U.S. postmark, was used. The Court agreed with the Board’s decision to quash the appeal based on Section 423 of the Workers’ Compensation Act, which states that a party has 20 days to file an appeal with the Board. The Court noted that when a private postmark is used, the appeal is deemed filed as of the date the Board receives the appeal.
Significantly in this decision, the Claimant presented a certificate of mailing (form 3817), in response to the Motion to Quash, and the post office had stamped it on a date that made the appeal timely. However, the postage amount on the form differed from the amount on the appeal envelope, and there was nothing on the certificate to identify the particular case in connection with the mailing.
MEDICAL EVIDENCE – DEGENERATIVE CHANGES
Green v. WCAB (U.S. Airways), --- A.3d ---, 2011 WL 3652745, No. 2539 CD 2010 (Pa. Cmwlth. August 22, 2011).
The Commonwealth Court vacated and remanded to the WCJ because the WCJ assumed that the testimony of Claimant’s medical expert, that the body part at issue has a “degenerative” condition, automatically ruled out a finding of a causal connection between the work injury and her symptoms. The Court noted that a diagnosis that the condition is “degenerative” merely described the condition and does not, in itself, address the issue of causation.
MENTAL – MENTAL INJURY
Pa. Liquor Control Bd. v. WCAB (Kochanowicz), --- A.3d ---, No. 760 C.D. 2011 (Sept. 20, 2011).
Claimant was working as a liquor store clerk and was robbed at gun point. The employer presented uncontroverted evidence that it trains its employees with regard to robberies because they are somewhat common. Therefore, the Court found that this was not an abnormal working condition, and it reversed the WCJ and WCAB’s award of benefits.
NOTICE OF COMPENSATION DENIAL – FULL RECOVERY
Potere v. WCAB (Kemcorp), 21 A.3d 684 (Pa. Cmwlth. May 20, 2011).
Claimant sustained a work-related injury on January 22, 2005 and began receiving medical and indemnity benefits pursuant to an NTCP. Claimant attended an IME with Dr. Kahanovitz on March 17, 2005 and he opined that the Claimant was fully recovered from his work injury as he found no objective findings to substantiate the Claimant’s ongoing complaints. Claimant was offered his pre-injury position, but failed to accept the same. Defendant thereafter issued a Notice of Stopping his Temporary Compensation and an NCD, #4 (acknowledging an injury but denying the extent of disability).
The WCJ credited Dr. Kahanovitz’s testimony over that of Claimant’s expert and, therefore, found that Claimant was fully recovered from his work injury as of March 17, 2005. The Board reversed, in part, because the record lacked substantial and competent evident to support the WCJ’s finding that Claimant was fully recovered because Dr. Kahanovitz’s testimony was speculative. The matter was remanded for a credibility determination as to Dr. Kahanovitz’s testimony. On remand, the WCJ credited the testimony again, although the Claim petition was granted and wage loss benefits were suspended as of April 13, 2005, which was the date of the job offer.
After subsequent appeals, the Commonwealth Court agreed with the Defendant that the issuance of the NCD did not constitute an illegal Supersedeas. It noted that the NCD form allows for acceptance of an injury along with a denial of disability (this reasoning may be moot in light of the Bureau’s recent changes to the NCD form). However, the Court remanded again because it was not clear if the WCJ relied on the faulty opinion of Defendant’s expert in his rejection of Claimant’s evidence.
NOTICE OF COMPENSATION PAYABLE – PRIOR FULL RECOVERY
City of Phila. v. WCAB (Butler), 24 A.3d 1120 (Pa. Cmwlth. July 26, 2011).
The Commonwealth Court reconsidered its earlier decision and concluded the Employer is not precluded from seeking a termination, modification, or suspension of a Claimant’s benefits as of a date that is prior to the date of the NCP. Finding to the contrary would not advance any sound policy or provision of the Act.
NOTICE OF INJURY – DUTY OF EMPLOYER TO INVESTIGATE
Gentex Corp. v. WCAB (Morack), 23 A.3d 528 (Pa. July 20, 2011).
Claimant was awarded benefits by the WCJ. Defendant appealed, arguing that Claimant failed to provide timely notice of her work injury which consisted of bilateral carpal tunnel syndrome, among other diagnoses. The WCAB affirmed, but the Commonwealth Court reversed. The Court concluded that Claimant indeed provided timely notice, but she did not provide a sufficient description of her work injury under Section 312 of the Act (77 P.S. § 632). The Court was persuaded by Claimant’s short-term disability paperwork, wherein she indicated that her injury was not work-related and listed injuries and ailments that were not even the subject of the workers’ compensation claim’s litigation. She attributed her other ailments to her fibromyalgia and high blood pressure diagnoses. The Court also noted that Claimant advised the employer’s human resources manager that she had “work-related problems,” but never indicated that an injury was present.
The Pennsylvania Supreme Court noted that offering one’s employer an exact diagnosis of a work-related injury is not required for a claimant to overcome his/her burden under Section 312 of the Act. Instead, only a “reasonably precise description” of the injury is required and only the use of ordinary language is necessary. The context in which this notice is given to the employer also matters, and a string of communications between Claimant and the employer can be analyzed as a whole to determine if Claimant satisfied this burden. Unfortunately, the Court also used an employer’s duty to investigate pursuant to Section 406.1 of the Act as part of its reasoning. Claimant told her supervisor that her hands hurt while working, and she left work on one particular day due to that pain. The Claimant’s voicemail message to the human resources manager indicated that she had “work-related problems”. Apparently, this was sufficient notice, despite the short-term disability application.
OFFSETS FOR S.E.R.S. BENEFITS
Horner v. W.C.A.B. (Liquor Control Bd.), 22 A.3d 1097 (Pa. Cmwlth. June 14, 2011).
Claimant appealed the denial of his Petition to Review Benefit Offset. The WCJ denied that Petition because it found that the Employer satisfied its burden of proof by way of testimony by an actuary, the director of the State Employees Retirement System and the Section Chief for Disability Processing in the Pennsylvania Bureau of Commonwealth Payroll Operations. The Commonwealth Court affirmed the WCAB’s upholding of the WCJ’s decision, noting that the Employer need not show the actual dollar amounts of its contributions to a defined benefit plan. This holding was consistent with the line of cases following Penn State Univ. v. WCAB (Hensal), 911 A.2d 225 (Pa. Cmwlth. 2006), appeal denied, 593 Pa. 743, 929 A.2d 1163 (2007). Claimant’s appeal in the instant case also included a remand at one point and the additional evidence led to a larger offset in the final decision.
REINSTATEMENT – STIPULATION
Upper Darby Township v. WCAB (Nicastro), 23 A.2d 601 (Pa. Cmwlth. 2011), publication ordered June 21, 2011.
In 2008, Claimant had alleged that his previously accepted work injury again decreased his earning power as of December of 2004. However, the Commonwealth Court noted that Claimant had previously stipulated to the fact that he left the workforce in December of 2004 due to injuries that were unrelated to his accepted work injury. Accordingly, the Commonwealth Court reversed the WCAB’s holding, therefore denying Claimant’s Reinstatement Petition.
STATUTORY EMPLOYER
Six L'S Packing Co. v. WCAB (Williamson), 24 A.3d 859 (Pa. July 14, 2011).
The Petition for Allowance of Appeal was granted and limited to the following issues: (1) whether a claimant must meet the five-part test articulated by the Supreme Court in the seminal case of McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930) to establish “statutory employer” status and (2) whether an owner of property can be a “statutory employer,” under the Act and existing case law, in the face of 80 years of precedent finding the contrary.
SUPERSEDEAS REIMBURSEMENT – MEDICAL DATE OF SERVICE
Dept. of Labor & Indus., Bureau of Workers’ Compensation v. WCAB (Crawford & Co.), 23 A.3d 511 (Pa. July 19, 2011).
Claimant suffered a work injury in 1995, which was accepted as right shoulder tendonitis. He underwent surgery on June 1, 2004 that he claimed was related to his work injury. Employer filed a Termination Petition on July 19, 2004, and Supersedeas with regard to the same was denied. The Insurer, thereafter, paid the $35,000 surgical bill. The Termination Petition was granted and the WCAB affirmed that decision.
Employer sought reimbursement from the Supersedeas Fund for payment of the surgical bill. However, the Fund challenged this request because the surgery occurred prior to Employer’s supersedeas request. The WCJ, WCAB, Commonwealth Court and Pennsylvania Supreme Court all found that reimbursement was appropriate because the obligation to pay did not arise until the bill was submitted, which was on October 11, 2004, after the supersedeas request was made.
When analyzing whether the payment of the surgical bill was made “as a result” of the August 20, 2004 denial of supersedeas, the Court noted that the Insurer denied liability for the surgery, based on a March 16, 2004 IME, but was mandated to still pay the bill due to the supersedeas denial. The Court disagreed with the Fund’s argument that reimbursement depended on the date of the event that gave rise to the bill.
TERMINATION FROM EMPLOYMENT
Sauer v. WCAB (Verizon Pa., Inc.), 26 A.3d 531 (Pa. Cmwlth. August 26, 2011).
The Commonwealth Court affirmed the WCJ’s and WCAB’s decision to deny and dismiss Claimant’s Reinstatement and Review Petitions. With regard to the Reinstatement Petition, the Court noted that this will be denied if the employer can prove that employment was available within the Claimant’s restrictions and would have been available but for the circumstances that led to the Claimant’s discharge, such as the Claimant’s lack of good faith. The WCJ found that the Claimant was discharged for good cause due to his deceit of the employer. Surveillance showed him running his own home improvement business when he claimed that he could not work at all. Claimant’s representative (Claimant had since deceased), claimed that the Claimant was unaware of this “code of conduct.” The Court reasoned that the Claimant’s actions led to him continuing to receive disability payments, all based on a large breach of trust. Therefore, this amounted to misconduct worthy of his discharge, and the Reinstatement Petition was properly denied.
UNREASONABLE CONTEST FEES
Grady v. W.C.A.B. (Lutz t/a Top of the Line Roofing, Uninsured Employers Guaranty Fund, and ACS Claims Service), 26 A.3d 1229 (Pa. Cmwlth. August 5, 2011).
The parties initially entered into an agreement that the Claimant’s medical condition was not an issue and that the matter was going to be bifurcated to first determine whether the Claimant was an “employee” or an “independent contractor.” After holding several hearings, the WCJ later issued an Interlocutory Order indicating that the Claimant was found to be an “employee” as defined by the Act. The Commonwealth Court affirmed the WCAB which held that unreasonable contest fees were not warranted when the Interlocutory Order did not direct the Employer to begin paying benefits. There were other disputed issues at hand, including the Claimant’s average weekly wage.
