April 6, 2009

Digest of
Appellate Decisions
March 2009

Ward v. WCAB (City of Philadelphia), 1755 C.D. 2008 (Pa. Cmwlth. 2009)

Consolidation Coal Company v. WCAB (Albani), 2216 C.D. 2007 (Pa. Cmwlth. 2009)

Matthews v. WCAB (Elwyn Institute), 1413 C.D. 2008 (Pa. Cmwlth. 2009)

Reyes v. WCAB (AMTEC), 643 C.D. 2008, (Pa. Cmwlth. 2009)

Liveringhouse v. WCAB (ADECCO), 1639 C.D. 2008 (Pa. Cmwlth. 2009)

Fox. V. WCAB (Peco Energy Company), 1774 C.D. 2008 (Pa.Cmwlth. 2009)

Ostrawski v. WCAB (UPMC Braddock Hospital), 497 C.D. 2008 (Pa. Cmwlth. 2009)
Calex, Inc. and Inservco v. WCAB (Vantaggi), 1788 C.D. 2008 (Pa. Cmwlth. 2008)
City of Philadelphia v. WCAB (Grevy), 924 C.D. 2008 (Pa. Cmwlth. 2008)

City of Philadelphia v. WCAB (Calderazzo), 923 C.D. 2008 (Pa. Cmwlth. 2009)

Ward v. WCAB (City of Philadelphia),
1755 C.D. 2008 (Pa. Cmwlth. 2009)

Claimant’s failure to prove that he was unable to perform the specific functions of a position that he had been found capable of holding at an earlier hearing, supported denial of his petition to reinstate full benefits.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s petition to reinstate total benefits. Claimant worked as a firefighter until 1992, when he suffered a sprain/strain of his neck and lower back. Claimant performed light duty for a few months until he went on total disability. Seven years later, his benefits were modified to partial benefits when Employer was able to prove that Claimant had failed to apply in good faith for jobs that were within his physical capability. Employer was not successful in its subsequent petition to terminate, after alleging that Claimant had fully recovered. Claimant then filed the instant petition to reinstate full benefits.

During the course of this litigation, Claimant’s entitlement to partial benefits expired. Claimant testified to the difficulty he experienced as a result of his pain and pain medications, but both Claimant and his doctor failed to address the specific issue of whether Claimant was capable of performing the assembler position that an earlier WCJ found he was capable of holding when his benefits had been modified. The WCJ found some of the testimony credible, but did not find that it was persuasive with regard to the assembler position and denied Claimant’s petition. The Board affirmed this finding.

On appeal, Claimant argued that the decisions should be reversed due a capricious disregard of competent evidence. Initially, the Court noted that Claimant’s burden of proof was different because his benefits had been modified due to his earlier bad faith. Claimant was required to establish that his medical condition worsened to the point that he could no longer perform the employment previously found available. Claimant contended that his testimony that he was unable to perform any work necessarily included the assembler position. The Court disagreed and noted that no testimony was presented to contradict the findings in the earlier proceedings that Claimant could sit, stand and walk over an eight-hour period such that he could perform the assembler job. Claimant failed to offer evidence proving the work restrictions established in the modification proceedings were no longer valid. Further, Claimant’s two medical experts did not testify to a worsening of Claimant’s condition, but merely maintained that he was as incapacitated as he had previously been. Since the Court agreed that Claimant’s evidence laced persuasive proof of a worsening of his condition that affected his ability to perform the assembler position, the decisions were affirmed.

Consolidation Coal Company v. WCAB (Albani),
2216 C.D. 2007 (Pa. Cmwlth. 2009)

Calculating Employer’s contributions to multiple employer defined benefit plan was a reasonable method of ascertaining the portion of Employer’s contribution that could be offset from Claimant’s benefits.

Commonwealth Court reversed the decision of the Board, which had reversed the WCJ’s decision in part and granted Claimant’s review petition. The Board had ruled that Employer’s actuarial testimony did not support Employer’s right to an offset due to Claimant’s receipt of a multi-employer defined benefits disability pension. Employer was a contributing employer to Claimant’s union’s health and retirement plan. Claimant had worked over 17 years for other employers before working for Employer. The other employers had contributed to the plan. Claimant was injured in 2002 and began receiving benefits. Claimant filed for a multi-employer defined benefit disability pension from the plan, which was awarded in 2003. Claimant also received a $17,000.00 retroactive lump sum payment. Claimant reported this income to Employer, which issued an offset notice, stating an intention to take a weekly credit of $140.00 as an offset. Employer also asserted an offset due to the retroactive pension received, resulting in a 35-week suspension of benefits.

At hearing, the WCJ ruled that Employer’s expert based calculations on Claimant’s amount of service rather than Employer’s actual contributions. Since Claimant’s expert had not made any calculations, the WCJ accepted Employer’s experts’ testimony and allowed the credit, but only from the time Employer had issued its notice that it would be taking credit.

On appeal to the Board, the decision was reversed because it was concluded that the expert’s testimony was incompetent. Offset was to be calculated based on an employer’s actual contributions to a pension plan, although that amount could have easily been calculated. The Board granted Claimant’s petition and denied Employer’s petition for review. On review, the Court disagreed with the Board’s reasoning, and found the expert’s testimony competent. The service-based methodology was most appropriate in this case because Claimant’s plan was a defined benefit plan. By definition, all contributions paid into the plan were available to the beneficiaries. The method employed by the expert reasonably ensured that Employer did not get credit for the portion of Claimant’s benefit attributable to other employers. The order of the Board was vacated, and the matter was remanded to the Board to consider the other issues on appeal that it had failed to reach.

Matthews v. WCAB (Elwyn Institute),
1413 C.D. 2008 (Pa. Cmwlth. 2009)

Claimant’s failure to notify Employer of the exacerbation of her original injury within the required time limit prevented her from receiving continuing benefits.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision to grant Claimant’s claim petition requesting benefits for an aggravation of a work-related injury. Claimant worked as a counselor at one of Employer’s residential facilities for mentally handicapped persons. In 2003, Claimant filed a claim petition alleging that she sustained an injury to her knee caused by a resident. During the course of her disability and treatment, Claimant also injured the knee in a car accident and at home. Claimant ultimately suffered a blood clot that she contended was a result of the work injury. Employer’s doctor testified that Claimant was recovered from the work injury, and that any lingering soreness was a result of the car accident. Claimant was awarded benefits for a closed period, which did not include disability due to the blood clot.

On appeal, the Board reversed, finding that since the car accident occurred when Claimant was on her way to treatment the injuries sustained in the accident were compensable. The matter was remanded for additional findings. Neither party presented additional evidence. The WCJ then found Claimant totally disabled and awarded her total disability. Employer then appealed, contending that the extended benefits were not warranted because Claimant had not notified Employer that she believed that the injuries suffered in the accident were compensable. The Board agreed and reversed the decision.

The Court first dismissed Claimant’s argument that Employer had failed to preserve this issue on appeal: since the WCJ had first determined that Claimant’s injury in the auto accident was not work-related, there was no reason for Employer to raise the notice issue to the Board. Secondly, it was well-settled that aggravation of a pre-existing condition was deemed a new injury under the Act, and Claimant bore the burden of establishing each element necessary to support an award of compensation. Notice under section 311 was an element of proof and it was clear that Claimant had not provided this notice. Even the fact that Employer’s doctor was made aware of the injury’s exacerbation after the accident did not serve as constructive notice. In no way did any of Claimant’s actions conform with the clear notice requirements. Accordingly, the Board’s decision was affirmed. Judge Smith-Ribner dissented, finding that Employer had been given adequate notice.

Reyes v. WCAB (AMTEC),
643 C.D. 2008, (Pa. Cmwlth. 2009)

Claimant was not entitled to benefits or litigation costs because he failed to show that his loss of income was due to his work injury, rather than his termination for cause after the injury.

Commonwealth Court, in an en banc decision, affirmed the decisions of the WCJ and the Board, which denied Claimant compensation and litigation costs, since Claimant failed to prove that his work injury caused his loss of wages. Claimant began working for Employer as a cable technician in 2005, and was injured in a work-related car accident in 2006. Claimant alleged that he had suffered back injuries. Employer acknowledged that Claimant had suffered a work injury in the accident, but denied that he was disabled by that injury.

At hearing, Claimant testified that upon calling his supervisor from the scene of the accident, he was told that he was fired as a result of the accident. After the accident, the supervisor advised Claimant that he was not fired on account of the accident, but because he had failed to properly disconnect service from three customers. Claimant’s medical expert testified that Claimant’s back injury prevented him from working as a cable technician. Employer’s medical expert testified that Claimant was completely recovered from his injury, and a compression fracture pre-dated the accident. The WCJ granted Claimant’s petition for medical benefits only, since it accepted the testimony of Employer’s medical expert finding that Claimant was not disabled, and that his loss of earnings was due to his termination for cause, not his injury. Litigation costs were also denied because Claimant did not prevail on the issues in controversy. The Board affirmed the decision.

On appeal, the Court agreed with the finding that Claimant’s wage loss was unrelated to his work injury. Initially, the Court found that Claimant failed to prove his injury or that Employer’s expert’s testimony proved that Claimant was eligible for light duty, which Employer did not offer. Claimant simply failed to offer any proof that he was ever disabled by his work injury. Further, since Claimant was fired based on misconduct Employer discovered after his injury, and Employer credibly testified that any of Claimant’s injuries could have been accommodated, Employer was not required to demonstrate that a light duty job was available. Finally, the fact that Claimant was awarded medical benefits did not automatically entitle him to litigation costs, since Employer had only contested the issue of disability payments, having acknowledged the occurrence of the accident. Further, Claimant did not allege that he had unpaid medical expenses associated with the accident. Accordingly, the order was affirmed. Judge McGinley dissented, and Judges Pelligrini and Smith-Ribner issued a dissent that called for Claimant to be awarded costs because he prevailed on the issue of medical costs.

Liveringhouse v. WCAB (ADECCO),
1639 C.D. 2008 (Pa. Cmwlth. 2009)

Commonwealth Court remanded matter for rehearing due to WCJ’s mistakes of fact and law in determining Claimant’s carpal tunnel disability.

Commonwealth Court vacated the orders of the WCJ and the Board, which granted Employer’s termination petition and found that Claimant had fully recovered from her injury. The WCJ also denied Claimant’s petition to add carpal tunnel syndrome as an acknowledged work injury. Claimant was injured in 2005 and the temporary notice of compensation payable described her injury as right shoulder pain. Six months later, Employer filed a termination petition alleging full recovery. Employer then filed a petition to suspend, since Claimant had declined a specific job offer. Shortly thereafter, Claimant filed her review petition alleging that the description of her injury should be changed to include cervical and shoulder strain and carpal tunnel syndrome. Employer stipulated to all but the carpal tunnel syndrome. Employer’s medical experts testified that any symptoms of carpal tunnel syndrome that Claimant experienced were due to her age and life activities, not the repetitive motions of her job. Further, even with those symptoms, Claimant was able to perform the other jobs offered to her.

The WCJ accepted the testimony of Employer’s experts and ruled that the opinion of Claimant’s experts was based on subjective information from Claimant. The Board found that the WCJ’s findings were based on substantial evidence.

On appeal, Claimant pointed out several factual errors in the WCJ’s findings that resulted in erroneous conclusions by the WCJ. Further, Claimant noted that all three doctors agreed that Claimant suffered from carpal tunnel syndrome. Claimant argued that if her condition pre-existed her employment that it would be impossible for her to have performed the twisting and turning with pliers required by the job over 2,000 times a day from the beginning.

The Court agreed that the Board plainly erred in accepting the WCJ’s findings of fact. The medical conclusions reached by the judge were plainly his own, and were not supported by any of the experts who testified. The Court noted that one of Employer’s expert's opinion on the causation and aggravation of carpal tunnel syndrome was in contravention of Pennsylvania law. In view of the factual and legal errors in the testimony and its interpretation, the order was vacated and the matter was remanded for a re-determination of the petitions. Judge Cohn Jubelirer concurred in the result.

Fox. V. WCAB (Peco Energy Company),
1774 C.D. 2008 (Pa.Cmwlth. 2009)

Sovereign immunity did not nullify Employer’s subrogation rights over settlement paid to Claimant by the City of Philadelphia.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Employer subrogation rights against Claimant’s third-party recovery from the City of Philadelphia. The real party of interest was the City, which had agreed to reimburse Claimant of any sums he had to pay to satisfy Employer’s subrogation claims. Claimant maintained that Employer had no subrogation rights where a governmental entity was the third-party tortfeasor. Claimant injured his ankle in 2003 and Employer paid indemnity and medical benefits. Claimant brought an action against the City, claiming that its negligence caused the injury. Claimant reached an agreement with the City for a lump sum payment and indemnification by the City of any subrogation he had to pay Employer. Employer filed a petition for review and argued that it was entitled to recover its subrogation lien under section 319 of the Act. The City responded that section 23 of Act 44 provided sovereign immunity against Employer’s claim.

The WCJ ruled in favor of Employer, reasoning that sovereign immunity did not apply, since Employer was not attempting to file an action directly against the City. The Court agreed and noted that section 319 provided an employer with an absolute right to subrogation in order to prevent a claimant from receiving a double recovery and from a third-party from escaping liability. Further, the City’s argument failed, since Employer was seeking subrogation from Claimant for the money received from the City, not making a direct claim against the City. Finally, the Court found that the WCJ ruled properly even under 42 Pa. C.S. 8553(d), since Employer was not seeking to recover subrogation lien money from the City but rather from the settlement already received by Claimant. Therefore, the Board’s decision was affirmed.

Ostrawski v. WCAB (UPMC Braddock Hospital),
497 C.D. 2008 (Pa. Cmwlth. 2009)

Claimant was not entitled to an average weekly wage calculation that included a second job, where Claimant did not hold that job at the time of injury.

Commonwealth Court affirmed the decision of the Board, which reversed a decision of the WCJ granting Claimant’s review and modification petitions and finding that Employer violated the Act. The Board also affirmed a remand decision that held that while Employer did violate the Act, no penalty should be assessed because the violation was de minimis. Claimant injured his ankle in April 2004. At the time, Claimant worked for Employer and full-time for a second employer. Claimant tendered his resignation at his second job a few months later to be effective the following month when he started a new second job. The new job start was postponed, and in the interim, Claimant had surgery on his ankle. When the new employer called him to work, Claimant had not yet been released to work by his doctor. Employer began paying weekly benefits, but did not include lost wages from either of the second jobs. Claimant filed a review petition, contesting Employer’s failure to include the earnings from his new second job. Claimant also filed a penalty petition, stating that Employer knew of his concurrent employment. Finally, Claimant filed a modification petition, alleging that he had sustained an increase in loss of earning power since he could not perform the work that had become available on his new second job.

At hearing, the WCJ found Claimant’s testimony regarding his concurrent employment credible. The WCJ also found that Employer knew of Claimant’s concurrent employment. Claimant’s petitions were granted, a 20% penalty was assessed for not including concurrent wages. Claimant’s request for attorney’s fees was denied. On appeal, the Board reversed the grant of Claimant’s review and modification petitions. The Board did find that Employer had violated the Act by not including the concurrent employment wages, but since it reversed the grant of the petitions, and the WCJ premised the penalty award on the recalculated benefits which resulted from the grant of these petitions, the Board remanded the matter for reconsideration of the penalties.

On remand, a different WCJ determined that while Employer technically violated the Act, no penalty was warranted. Before the Court, Claimant argued that the WCJ should have ruled that Claimant’s loss of earning power at the new second job when considering his modification petition, since the initial delay of that employment was not his fault (the second employer had contract issues with a third party), and since when the work became available, Claimant could not work due to his surgery.

The Court agreed with the WCJ’s interpretation: that Claimant did not have concurrent wages because he had resigned his first second job, and since he did not hold the second job at the time of injury, he did not have concurrent wages. While Claimant did have concurrent employment at the time of injury, he terminated that job for reasons that were not related to the injury, therefore, concurrent employment need not have been found beyond that point. Similarly, while Employer had violated the Act, the fact that Claimant was not entitled to concurrent employment benefits, the violation was not significant and the decision not to award a penalty was appropriate. Therefore, the decisions were affirmed.

Calex, Inc. and Inservco v. WCAB (Vantaggi),
1788 C.D. 2008 (Pa. Cmwlth. 2008)

Claimant’s doctor’s testimony supported finding of injury to Claimant’s neck, even though complaints of neck pain did not appear in Claimant’s medical records until six months after injury. Employer was not liable for reimbursement of Claimant’s COBRA benefits.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted the award of medical and disability compensation, but set aside the award of reimbursement of Claimant’s health insurance premiums. Claimant was involved in a motor vehicle accident in 2006 and complained of lower back pain thereafter. Claimant was sent to a panel physician who directed Claimant not to work for several days. Claimant had received surgical treatment for lower back pain in 1972. Claimant went back to work and continued to work for a few months until he was discharged. Claimant then filed a claim petition alleging aggravation of a low back injury and psychosis as a result of a closed brain injury, a claim he later withdrew.

At hearing, Claimant testified as to back and leg pain as well as headaches. Claimant also testified that he paid nearly $4,000.00 for COBRA benefits in order to continue his treatment. Claimant’s doctor testified that Claimant’s injuries were typical as a result of a motor vehicle accident. The doctor admitted, however, that he had not reviewed all of Claimant’s previous medical records. Employer’s expert testified that Claimant’s lower back injury had ceased to be disabling, and any other problems that Claimant complained of were not a result of the accident, since Claimant had not complained of any other pain until some time after the accident. The WCJ credited the testimony of Claimant and his doctor. Claimant’s petition for benefits and reimbursement of his COBRA payments was granted.

On appeal, Employer challenged the competency of Claimant’s medical evidence in addition to the reimbursement of COBRA payments. Employer argued that Claimant’s doctor’s conclusion about Claimant’s neck pain was unsubstantiated because Claimant’s complaint about neck pain did not appear in any medical records until nearly six months after the accident, and the doctor had not reviewed Claimant’s previous medical records.

The Court held that it was bound by the conclusions of the WCJ, who chose to believe that the medical records made immediately after the accident were incomplete, rather than the contention that Claimant had no neck pain. Further, Claimant’s doctor was not required to review Claimant’s previous medical records before rendering an opinion. While the Court acknowledged that the case was a close one, it relied on the credibility determinations of the WCJ. Secondly, Employer argued that the Act did not require it to reimburse Claimant for COBRA premiums. Employer was liable for the cost of medical treatments related to Claimant’s work injury, including any co-payments or deductibles imposed by his insurance company, but not for the premiums themselves. Accordingly, the decision was modified.

City of Philadelphia v. WCAB (Grevy),
924 C.D. 2008 (Pa. Cmwlth. 2008)

Municipal Employer was entitled to pension offset only for the amount of contribution that it made to Claimant’s pension; Claimant’s ability to withdraw pension contributions or designate benefits for a survivor did not exempt the pension from application of section 204(a).

Commonwealth Court affirmed the decision of the Board, which granted Employer a 73.149% offset on account of Claimant’s service-connected disability pension, but remanded the matter for additional calculations. Claimant sustained injuries in 1999 after being stabbed by an inmate on the job as a prison guard. Employer issued an NCP, but continued to pay Claimant his regular wages in lieu of workers’ compensation. Claimant was ultimately separated from his employment 18 months later due to his injuries. Claimant then began receiving compensation. Claimant applied for the disability pension and received it a few months after separation. In applying for the pension, Claimant signed an agreement that acknowledged that Employer would be entitled to an offset against his compensation. Claimant’s pension was $9.21 per week less than his compensation. Once the pension payments began, Employer ceased paying benefits. Claimant then filed two reinstatement petitions and two penalty petitions. Employer responded by filing a petition to modify.

All matters were consolidated before the WCJ, who determined, after the testimony of the pension administrator, that Employer was entitled to a dollar-for-dollar credit, but had improperly modified the compensation without first filing a petition. Employer was assessed a $5,000.00 penalty and $500.00 in attorney’s fees were awarded. The Board remanded the matter for the WCJ to determine to what extent Employer funded Claimant’s pension benefits in order to determine the proper amount of offset.

On remand, Employer presented an actuarial expert who testified that Employer’s contribution rate could be calculated at 73.149%. The WCJ then concluded that Employer was entitled to that amount of offset. Both parties appealed and the Board affirmed the decision. Employer took the instant review before the Court. Employer contended that it was entitled to a dollar-for-dollar credit, arguing that, because Claimant had the option of withdrawing his pension contributions or using them for survivors’ benefits, section 204(a) did not apply. The Court discounted this argument and cited the recent Andrews case that held that section 204(a) applied if the injury occurred after the section’s enactment, regardless of a claimant’s ability to direct his pension contributions. Since the WCJ’s decision to accept the actuary’s testimony as to the percentage of Employer’s contribution was based on competent evidence, the remand decision was affirmed. The matter was remanded to the WCJ for reconsideration of the penalty and attorney’s fees, as those amounts were calculated when it had been determined that Employer was not entitled to any offset.

City of Philadelphia v. WCAB (Calderazzo),
923 C.D. 2008 (Pa. Cmwlth. 2009)

Municipal Employer was entitled to offset of workers compensation benefits to the extent that it contributed to Claimant’s pension benefits.

Commonwealth Court reversed the decision of the Board, which denied Employer an offset to workers’ compensation benefits paid to Claimant on account of the disability pension received by Claimant. Claimant had sustained injuries in 1995 as a result of a motor vehicle accident while working as a police officer. Claimant received temporary total disability benefits. Two years later, Claimant was separated from her employment due to the injuries, prompting Claimant to apply for service-connected disability pension benefits. Claimant signed an agreement upon application allowing for an offset of her compensation based on the pension. Claimant was awarded the pension in 1995, and since the pension benefit was greater than the compensation she had been receiving, Employer ceased paying the compensation. Claimant filed for reinstatement and assessment of a penalty against Employer. Claimant also filed a second penalty petition when Employer failed to reimburse her for prescription medication.

After hearing, the WCJ denied the petition for reinstatement, citing the testimony of the pension administrator. The WCJ did find that Employer had violated the Act by failing to file the pension agreement with the Bureau. Employer was assessed a fine of 20% of nearly six weeks of benefits.

On appeal, the Board ruled that the WCJ had erred in allowing the offset because Employer had failed to present testimony to establish what portion of Claimant’s pension was funded by its contributions. Further, the Board held that it was error to find that Claimant had waived her entitlement to compensation by signing the agreement, so that Employer did not violate the Act when it failed to follow the proper procedures under Section 413(b) of the Act to suspend or modify the Claimant's benefits. The matter was remanded for the WCJ to reconsider the penalty award and the award of attorney’s fees.

On remand, Employer was assessed a 35% penalty for the same six-week period and an unreasonable contest attorney’s fees of nearly $3,000.00. This decision was affirmed by the Board.

On appeal, the Court agreed with Employer that the WCJ had erred in barring an offset. Employer did meet its burden that the service-connected disability pension paid to Claimant was paid in lieu of workers’ compensation. However, none of the testimony from Employer’s actuarial expert was definitive as to what percent of the pension benefits were funded by Employer. Secondly, the WCJ did not err in assessing penalties against Employer for unilaterally suspending Claimant’s benefits. It was not a defense that Claimant may not have been owed money after the application of the offset. The failure to follow the proper procedures was reason enough to assess the penalty. The same rationale applied to the award of unreasonable contest attorney’s fees, even though Employer prevailed on the issue of offset. Therefore the matter was remanded to the WCJ to receive testimony as to Employer’s contribution to Claimant’s pension. Additionally, the Court charged the WCJ to reconsider the amount of the penalty and attorney’s fees, inasmuch as the amount of the penalty and fees may have been influenced by the original decision that Employer was not entitled to any offset. The WCJ was not required to change the amount of the awards, but was given the opportunity to reconsider in light of the Court’s opinion.