March 5, 2009

Digest of
Appellate Decisions
February 2009

Department of Labor & Industry, Bureau of Workers’ Compensation v. WCAB (Crawford & Company), 2211 C.D. 2007 (Pa. Cmwlth. 2009)

Philadelphia Gas Works v. WCAB (Amodei), 350 C.D. 2008 (Pa. Cmwlth. 2008)

Channellock, Inc. v. WCAB (Reynolds), 884 C.D. 2008 (Pa. Cmwlth. 2009)

Michael v. WCAB (United States Steel Corporation), 2045 C.D. 2008 (Pa. Cmwlth. 2009)

Department of Labor & Industry, Bureau of Workers’ Compensation v. WCAB (Crawford & Company),
2211 C.D. 2007 (Pa. Cmwlth. 2009)

Insurer was entitled to reimbursement for medical treatment incurred prior to the filing of a petition for supersedeas, since the request for payment was submitted and paid after the petition had been denied.

Commonwealth Court, in an en banc decision, affirmed the decisions of the WCJ and the Board, which granted the application for supersedeas fund reimbursement filed by Insurer. Claimant had begun receiving benefits in 1995. Nine years later, Employer filed a petition to terminate benefits in July 2004, as of March 2004. Employer also requested supersedeas. Claimant had undergone treatment for his injury in June 2004. The request for supersedeas was denied and Insurer paid a $35,000 bill for the June treatment. One year later, Employer’s petition was granted, and this decision was later affirmed by the Board. Insurer requested the instant reimbursement for the $35,000 payment. The Bureau argued that Insurer was not entitled to payment because the treatment was provided to Claimant prior to the request for supersedeas. The WCJ disagreed with this argument and held that the date the bill was presented was the date to be considered for purposes of reimbursement. Since the bill was presented after the supersedeas petition was filed, it was proper for reimbursement to be granted. The Board affirmed this decision.

Before the Court, the Bureau argued that supersedeas could not be effective any earlier than the date on which the request for supersedeas is filed. The Bureau continued that, if the lower decisions were allowed, insurers would be encouraged to withhold payment until superseadeas was eventually requested because such payment would be reimbursable from the Fund, regardless of when treatment was actually provided. The Court distinguished different requests for supersedeas reimbursement under sections 413, 430 and 443, and ruled that the instant matter was controlled by the Mark case, since Insurer at all relevant times, provided benefits to Claimant, and at no time, wrongfully stopped providing the benefits. Even though this case arose under section 413 rather than section 430 in Mark, the focus was on the continuation of benefits. Therefore, the right to reimbursement related to the payments made after the denial of the supersedeas, rather than the date of service of the expenses. The decision was affirmed. Judge Pellegrini dissented, contending that payment for the medical expense would have been made even if supersedeas had been granted, since the treatment was incurred prior to the filing of the petition for supersedeas.

Philadelphia Gas Works v. WCAB (Amodei),
350 C.D. 2008 (Pa. Cmwlth. 2008)

Workers’ compensation benefits are properly offset by the net amount of pension benefits received by an employee, not the gross amount of benefits.

Commonwealth Court, in an en banc decision, affirmed the decisions of the WCJ and the Board, which granted Claimant’s review offset petition. Claimant was injured in 1997 and received benefits. When Claimant began receiving his pension in 2001, Employer sent him an offset notice in the amount of the net pension benefits that he received. Five years later, Employer issued a second notice, increasing the deduction to the gross amount of pension benefits Claimant received. Claimant then filed this petition. The petition was granted based on regulations promulgated by the Bureau specifying that the benefits were to be offset by the net amount of pension benefits.

Employer argued that section 204(a) of the Act and the Steinmetz and Ferrero decisions, which allowed for the deduction of the gross amount of severance and unemployment compensation benefits, should be applied to Claimant’s pension benefits. The Court chose to be guided by the regulation, which had been promulgated only two weeks prior to the ruling in Ferrero. The Court noted that even if there would be difficulties in calculating the accurate net figure to be used as an offset, the regulation allowed the insurer to repay an employee for an amount previously offset. The decisions below were affirmed. Judges Cohn Jubelirer and Leavitt wrote concurring opinions.

Channellock, Inc. v. WCAB (Reynolds),
884 C.D. 2008 (Pa. Cmwlth. 2009)

Claimant’s inability to stay awake on account of medications he took for the pain from his work injury made him unable to perform even the “no work” job Employer had offered him.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which denied Employer’s petition to terminate benefits and granted Claimant’s petition to reinstate benefits. Claimant injured his back in a fall in 2001. He had surgery on his back and returned to work at the different part of Employer’s plant the next year. When that part of the plant closed, Claimant was moved back to the portion of the plant where he was injured, but was not required to do any work. In 2003, Claimant fell asleep on the job and was disciplined. He then requested a transfer to a position where he could be more alert. Although he believed the new job requirements exceeded his medical restrictions, Claimant accepted a job transfer and performed the required work for several months until his doctor told him to stop working. As a result, the instant petitions were filed.

At hearing, Claimant, his doctor and a co-worker testified. Employer presented testimony that a number of regular and light-duty positions were available, as well as medical testimony that indicated that Claimant had fully recovered. In granting Claimant’s petition, the WCJ ruled that the testimony of Claimant and his co-worker was credible as to the nature of Claimant’s pre-injury work. Employer’s testimony was credible, except with regard to the description of job duties. The WCJ even ruled that Claimant could not return to the “no work” position he previously held, since the medications he took for his pain from the injury left him drowsy. The Board affirmed this decision.

On appeal, Employer argued that the possibility that Claimant might fall asleep was not sufficient to find that he was unable to perform the “no work” position. On review, the Court distinguished this case from Ryan and Crisman, in that the WCJ concluded that the no-work position was not within Claimant’s capabilities, since he had difficulties in staying awake. Finally, the Court held that the WCJ’s finding that Claimant had not fully recovered was not error and was supported by substantial evidence.

Michael v. WCAB (United States Steel Corporation),
2045 C.D. 2008 (Pa. Cmwlth. 2009)

Discogram test results favoring Claimant, while not entirely subjective, could not be relied on by Claimant as objective evidence to overcome testimony by Employer’s medical expert.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which terminated Claimant’s benefits. Claimant injured his back in 2003. Employer gave Claimant a sedentary job and paid him partial benefits. Employer then filed a petition seeking to terminate benefits from a date three months after the injury. At hearing, both sides presented medical testimony and the WCJ granted the petition to terminate. Claimant filed an appeal and requested a rehearing before the WCJ to present additional evidence. The Board remanded the matter and Claimant presented evidence regarding surgery that was performed after the first hearing.

Claimant’s doctor testified that Claimant had suffered disc tears as a result of the injury, which had been repaired and improved by surgery, but had not been completely resolved. The doctor stated that Claimant still experienced some back pain. Employer’s doctor reiterated his testimony that Claimant’s complaint of pain and his condition were not from any organic source, and contended that this was supported by the fact that Claimant’s pain returned after his procedures. The WCJ again concluded that Employer had established that Claimant had fully recovered from his injury and any resultant pain was attributable to a non-work-related cause. The Board affirmed this decision.

On appeal, Claimant contended that the testing performed by his doctor was objective evidence that his injury remained. On appeal, the Court reviewed rulings of other courts in relation to the objectivity of the discogram test performed by Claimant’s doctor. While some of the parts of the test were performed outside of the patient’s view, the test was not entirely objective because it called for a patient to report when there was pain. Since the test required a patient to communicate perceptions and feelings, the Court found it to be subjective. This partial subjectivity of the test was not determinative as to whether a claimant would be entitled to benefits, but must be weighed in the context of all the evidence presented. The WCJ found Employer’s doctor to have testified credibly. Because of the partial subjectivity of the discogram, it could not be said that there was objective evidence in the record that contradicted his testimony. Accordingly, the decisions were affirmed.

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