September 3, 2009

Digest of
Appellate Decisions
August 2009

ESAB Welding & Cutting Products v. WCAB (Wallen), 60 C.D. 2009

Mendes v. WCAB (Lisbon Contractors), 154 C.D. 2009 (Pa. Cmwlth. 2009)

McLaurin v. WCAB (SPETA), 40 C.D. 2009 (Pa. Cmwlth. 2009)

ESAB Welding & Cutting Products v. WCAB (Wallen),
60 C.D. 2009

Claimant could not be determined to have left the workforce if he remained active on Employer’s payroll and had not been offered any job within his capacity.

Commonwealth Court affirmed the order of the Board and the WCJ, which denied and dismissed Employer’s review, suspension and termination petitions and granted Claimant’s review petition. Claimant suffered a back injury in 2003 and began receiving benefits. Two years later, Claimant’s status was modified from total to partial disability based on an impairment rating evaluation. In 2007, Employer filed a suspension petition, alleging that Claimant had withdrawn from the workforce. Employer also filed a review petition, contending that it was entitled to credit for holiday and vacation payments made to Claimant while he was receiving benefits. Claimant responded by filing a review petition that argued that his injury was incorrectly described on the NCP. The WCJ granted Claimant’s petition, and included a lumbar strain, aggravation of Claimant’s degenerative disc disease with lower back pain, and radicular symptoms into the left leg among Claimant’s injuries. All Employer’s petitions were denied. These decisions were upheld by the Board.

On appeal, the Court first ruled that the vacation and holiday payments Claimant received were a result of the CBA which had been negotiated with Employer. Employer’s argument that Claimant received the pay solely because he was receiving workers’ compensation was dismissed, since the CBA specifically called for the pay to those workers receiving benefits. If Employer could claim a credit for the payments, the provision of the CBA would lose effect. Further, Employer’s contention that Claimant had left the workforce was not supported, since Employer continued to carry him as active on its payroll. Employer had not offered Claimant any job within his capacity, although Claimant was willing to accept appropriate employment. Finally, the Court affirmed the modification of Claimant’s injury description in the NCP, since the testimony of his treating physician was unequivocal and sufficient to support the WCJ’s determination. Therefore, the decisions below were affirmed.

Mendes v. WCAB (Lisbon Contractors),
154 C.D. 2009 (Pa. Cmwlth. 2009)

Employer was not required to present medical evidence to support suspension petition when Claimant had moved to Portugal and voluntarily removed himself from the workforce.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Employer’s suspension petition. Claimant had injured his back in 1990 and began receiving benefits. Claimant moved to Portugal in 2001 and Employer filed this petition in 2007, alleging that Claimant was unavailable for employment based on his residence. Employer presented no medical evidence. The WCJ granted the petition based on the finding that Claimant had voluntarily removed himself from the workforce. Claimant appealed, arguing that the petition should not have been granted, since Employer had presented no medical evidence as required by case law. The Court relied on other decisions which allowed for suspension based on a claimant’s voluntarily removal from the workforce. Since Claimant had removed himself from the workforce for at least seven years, the WCJ had not erred in granted the suspension petition.

McLaurin v. WCAB (SPETA),
40 C.D. 2009 (Pa. Cmwlth. 2009)

Claimant was not entitled to benefits for psychic injury after gun attack on the job when Employer was able to prove that such attacks were not abnormal working conditions in his job as a bus driver.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s claim petition. Claimant had been employed as a bus driver for six months when he was accosted at gunpoint by a passenger. Claimant was not harmed, but was unable to return to work thereafter. Claimant alleged in his petition that he suffered post-traumatic stress disorder, as well as attendant stress-related physical ailments as a result of the attack. Claimant presented medical evidence that diagnosed him with post-traumatic stress disorder, including the IME report. On its part, Employer presented evidence to show that dangerous conditions were not abnormal in Claimant’s line of work. Further, the doctor who administered the IME testified that Claimant had recovered from his ailment at the time of the examination. While the WCJ credited the witnesses that testified as to Claimant’s diagnosis, he also found that Employer had proven the incident was not an abnormal work condition, in that a number of other workers in Claimant’s classification had been exposed to such a situation and denied the petition.

On appeal, Claimant argued that life-threatening assaults were extremely rare and were not normal work conditions. The Court rejected this argument, and noted that Claimant himself had experienced an incident where someone outside had shot in the direction of a bus he was driving. The WCJ had scrutinized Employer’s incident reports and determined that life-threatening incidents had occurred with enough frequency to support the conclusion that they were not abnormal working conditions. Further, such incidents had occurred with enough frequency that Employer had incorporated the handling of such conditions in its corporate training. Claimant had not met his burden that his injury was not a subjective reaction to normal working conditions. Accordingly, the decisions below were affirmed.

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