June 4, 2009

Digest of
Appellate Decisions
May 2009

Lisanti Painting Company and Donegal Companies v. WCAB (Starinchak), 152 and 344 C.D. 2008 (Pa. Cmwlth. 2009)

Department of labor & Industry, Bureau of Workers’ Compensation v. WCAB (Ethan-Allen Eldridge Division and St. Paul Travelers Insurance Company), 1600 C.D. 2008 (Pa. Cmwlth. 2009)

Moyer v. WCAB (Pocono Mountain School District), 156 C.D. 2009 (Pa. Cmwlth. 2009)

Sexton v. WCAB (Forest Park Health Center), 1225 C.D. 2008 (Pa. Cmwlth. 2009)

Lisanti Painting Company and Donegal Companies v. WCAB (Starinchak),
152 and 344 C.D. 2008 (Pa. Cmwlth. 2009)

Claimant could not be required to repay benefits paid to him when he refused to undergo surgery that had been recommended by his doctor and Employer’s doctor to correct his disability.

 Commonwealth Court, in an en banc decision affirmed the decision of the Board, which reversed the WCJ’s suspension of benefits for Claimant. Claimant was injured in 2004 and began receiving benefits. Seven months later, the parties executed a supplemental agreement expanding Claimant’s injuries. Two years later Employer petitioned to suspend benefits when Clamant refused to undergo shoulder surgery that had been advocated by three surgeons. Claimant eventually underwent the surgery two months after the petition was filed. The WCJ ordered that benefits be suspended from the time Claimant’s doctor first recommended the surgery to the time that the surgery was actually performed. The WCJ found that Employer was entitled to repayment as a matter of law because an opposite result would cause Claimant to be unjustly enriched. The Board did not agree with this rationale, noting that unjust enrichment was limited to factual errors and results where a claimant received payment to which he had no arguable entitlement.

Further, Employer had delayed in filing its petition and could not be rewarded for that.

The Court declined to find that there was statutory support for Employer’s entitlement to credit against Claimant’s future earnings. The unjust enrichment cases relied on by Employer dealt with clerical errors made in calculating benefits, not medical treatment refused by a claimant. Section 306(f.1)(8) of the Act called for an Employer to petition for a suspension of benefits until Claimant underwent treatment. Further, failure to accept treatment was not a change in status under section 413, so that the WCJ could not change Claimant’s status as a result of Employer’s filing a petition under section 306(f.1)(8). Accordingly, the Board’s decision was affirmed. Judge Simpson dissented and accepted the decision of the WCJ, modifying it only in its effective date.

Department of Labor & Industry, Bureau of Workers’ Compensation v. WCAB (Ethan-Allen Eldridge Division and St. Paul Travelers Insurance Company),
1600 C.D. 2008 (Pa. Cmwlth. 2009)

General release provision found in the parties’ C&R did not overrule parties’ specific agreement to allow WCJ to determine suspension petition, in order that Employer could pursue request for supersedeas reimbursement.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Employer’s application for supersedeas reimbursement. Claimant injured her foot in 2005. Employer issued an NCP and filed petitions to suspend and terminate benefits 13 months later. The WCJ denied the petitions. During the pendency of the litigation, the parties reached an agreement. Claimant received a lump sum payment, but Employer’s right to pursue the suspension petition was preserved. The WCJ approved the agreement and dismissed the suspension petition as moot. Employer sought reimbursement of benefits paid from April 2006 to January 2007. The Bureau countered that due to the settlement Employer was not entitled to reimbursement based on the clauses in the agreement. The WCJ granted reimbursement, noting that while some of the clauses in the agreement were conflicting, the release of claims was not so general as to nullify the provision that preserved resolution of the suspension petition. The Bureau appealed and the Board affirmed, agreeing with the WCJ as to the language in the general release.

On appeal, the Court reviewed the line of cases that dealt with resolution of outstanding petitions after the executions of compromises and releases. The Court ruled that the parties agreed to leave resolution of the suspension petition open not so that Employer could unilaterally amend the agreement, but so as to obtain supersedeas reimbursement. The fact that Employer was seeking payment for a closed period of time—during the pendency of the action following the denial of its supersedeas request, supported the conclusion that the parties did not intend to extinguish Employer’s right to pursue reimbursement. Finally, the Court affirmed the decision to grant the reimbursement application, since the five elements for obtaining reimbursement from the fund were satisfied and the decision was well-supported by the evidence.

Moyer v. WCAB (Pocono Mountain School District),
156 C.D. 2009 (Pa. Cmwlth. 2009)

Claimant’s doctor opinion was unequivocal because the doctor’s opinion was not a guess or estimate, but an exercise of the doctor’s medical judgment.

Commonwealth Court reversed the decision of the Board, which reversed the WCJ’s decision granting Claimant’s claim petition. Claimant sustained a back injury in 2007, when he lifted a large bucket of water. As a result, he filed the instant petition, and Employer issued a notice of denial, maintaining that Claimant had not sustained a work-related injury and had no medical evidence to support a claim of disability. At the hearing, Claimant described the events leading to the injury, which caused him to fall. Claimant testified that he had difficulty in walking thereafter and was taken to the hospital by his supervisor. Claimant also testified that, although he had experienced back pain in the past, he could and did work despite the pain. Claimant’s doctor testified that the work incident had intensified Claimant’s back condition to such an extent that he could not perform his former duties. Employer’s medical expert testified that Claimant’s disability stemmed from a recurrence of his long-standing back problems. The WCJ found Claimant and his expert more credible and granted the petition.

On appeal before the Board, Employer successfully argued that Claimant’s doctor’s opinion was based merely on his assumption that the work incident had aggravated Claimant’s pre-existing condition; such assumption being insufficient at law upon which to base a disability determination. On appeal, the Court distinguished the testimony in the instant case from the testimony in previous cases that stood as examples of insufficient testimony for establishment of disability from a work injury. In those cases, doctors testified that disabilities could have arisen from work injuries, or failed to diagnose a condition altogether. Herein, Claimant’s doctor testified that there was a definite and documented injury at work requiring hospital treatment at the time of that injury, in addition to corroborating medical documents that Claimant had suffered an injury while lifting a heavy object. Therefore, the doctor’s opinion that the injury was work-related was not based on supposition, but rather, if the accident had occurred as Claimant had described it, then the accident was the cause of the injury. Examining the doctor’s testimony as a whole, including his examination and treatment of Claimant prior to the work incident, the finding that the doctor’s testimony was credible was supported. Accordingly, the decision was reversed.

Sexton v. WCAB (Forest Park Health Center),
1225 C.D. 2008 (Pa. Cmwlth. 2009)

Failure by Claimant’s doctor to send a signed verification with medical records prevented URO from issuing report and denied the reasonableness of Claimant’s treatments.

Commonwealth Court affirmed the decision of the Board, which had reversed the WCJ’s decision granting Claimant a new utilization review. Claimant injured her back on the job in 1999. She began receiving injections for pain relief from her doctor in 2004. Employer sought utilization review as to the reasonableness of these injections. The URO issued a determination that the treatments were neither reasonable nor necessary when Claimant’s doctor failed to forward a signed verification with the forwarded medical records, despite several requests to do so. Claimant then filed this petition seeking review of the URO’s determination. The WCJ ordered that further review to determine the merits of the injections be conducted. Employer appealed and the Board vacated the decision and remanded it to the WCJ to determine whether the URO followed the proper procedure. Since the URO received the records and lacked only the signed verification, the WCJ again ordered further assessment. Employer again appealed and successfully argued that failure to supply a timely verification form with the medical records was a failure to comply with the utilization review procedure and supported the URO’s dismissal.

On appeal before the Court, Claimant contended that the URO was without authority to return Claimant’s medical records for lack of verification, and was required to submit those records to a reviewer. The Court relied on 34 Pa. Code 127.459(c), which required a signed verification to accompany the medical records sent to the URO. The Court ruled that failure to provide the mandatory verification was the same as providing no medical records at all, thus giving the URO no choice but to deem the treatments unreasonable. The absence of the report prevented the WCJ by law from reviewing the reasonableness of the treatment. Accordingly, the Board’s decision was proper under the law and was affirmed.

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