October 8, 2009

Digest of
Appellate Decisions
September 2009

Equitable Resources v. WCAB (Thomas), 80 C.D. 2009 (Pa. Cmwlth. 2009)

World Kitchen, Inc. v. WCAB (Rideout), 1789 C.D. 2008 (Pa. Cmwlth. 2009)

Thompson v. WCAB (Cinema Center), 621 C.D. 2009 (Pa. Cmwlth. 2009)

Employer was responsible for repairs to construction negligently done to accommodate Claimant’s bathroom.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s penalty petition and ordered Employer to pay for the repair of modifcations to Claimant’s bathroom. Claimant had been paralyzed as a result of a work injury. Modifications were then needed to the bathroom in Claimant’s home in order to accommodate his needs. The construction was poorly done by the contractor Employer had hired, and, as a result, a water leak caused damage to the bathroom and mold to form in the walls and under the floor. Employer provided for the repair work to be done on the bathroom, but the leakage was not resolved. After testimony, the WCJ found that the cost to repair the bathroom was approximately $22,000. The WCJ characterized the bathroom as an “orthopedic appliance” under the Act, which Employer was obligated to provide and repair, if necessary. The WCJ chose to treat the penalty petition as a review petition and held Employer responsible for the repairs. The Board agreed with this decision.

On appeal, Employer argued that it was obligated to make only a one-time payment to modify Claimant’s home and was not responsible for repairs. The Court distinguished this case from ones where claimants in the past had asked for additional modifications years after original modifications had been performed. Claimant herein sought only to have the original accommodation properly done so that his home was not damaged in any way. Since Employer had not challenged the fact that the work had been negligently done, Employer could not be said to have discharged its obligation under the Act to perform the accommodations for Claimant’s injury. Accordingly, the decisions were affirmed.

World Kitchen, Inc. v. WCAB (Rideout),
1789 C.D. 2008 (Pa. Cmwlth. 2009)

Claimant’s failure to present medical testimony to counter Employer’s modification petition required WCJ to grant Employer’s petition.

Commonwealth Court reversed the decisions of the Board and the WCJ, which denied Employer’s modification petition. Claimant was injured on Employer’s premises in 2005 and began receiving benefits. Employer’s doctor released Claimant to do full time sedentary work a year later. Employer offered Claimant a sedentary job to which she reported a day late. Employer then issued a notice of modification, which Claimant challenged, contending that her injury kept her from working full time hours.

At hearing, the WCJ ruled that Employer had the burden to show that work was available. Employer countered that Claimant had offered no medical evidence to show that she was unable to work full time hours, nor had she offered any documentation related to the injury for the time she had taken since returning to work. Employer presented testimony from its medical expert who had examined Claimant and indicated that Claimant was physically able to perform the several light duty jobs Employer had available up to ten hours a day. Claimant presented the documentation given to her by her doctor when she used FMLA leave for the missed time at work. The documentation stated that Claimant had experienced intermittent back pain, but failed to detail as to whether that pain was due to the work injury or Claimant’s pre-existing back condition.

Although the WCJ’s order was not clear, the Board determined that the WCJ had denied Employer’s modification petition. The Board affirmed this decision, reasoning that the WCJ had accepted Claimant’s testimony as to her back pain on her light duty assignment over the testimony of Employer’s doctor. Before the Court, Employer contended that the Board had applied a burden of proof appropriate for reinstatement petitions, not the modification petition Employer had filed. Employer contended that Claimant’s testimony alone was insufficient to defeat Employer’s medical evidence. Employer had not sought modification based on Claimant’s actual earnings, but rather, the availability of 40 hours of work per week. Since the WCJ specifically found that Employer made appropriate work available for Claimant, Employer had met its modification burden.

Before the Board, Claimant was required to support her testimony regarding the back pain that made her unable to work full time hours with medical documentation, since the proceeding was one for modification. Once the testimony of Employer’s doctor had been accepted, Employer’s modification petition could not be denied, regardless of Claimant’s subjective beliefs about her ability to work. Claimant never provided either Employer or the WCJ with a physician’s statement that she must be excused due to her work injury. The case was remanded for the entry of an order granting Employer’s petition. Judge Friedman dissented, contending that the WCJ was authorized by section 413(a) to take whatever action deemed appropriate, regardless of the form of the petition.

Thompson v. WCAB (Cinema Center),
621 C.D. 2009 (Pa. Cmwlth. 2009)

Employer’s contest of the determination of a public parking lot as its premises was reasonable and although Employer did not prevail, Claimant was not entitled to attorney’s fees for unreasonable contest.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which denied Claimant’s request for quantum meruit attorney’s fees for unreasonable contest. Claimant injured her shoulder when walking to her car in Employer’s parking lot after work. Claimant had surgery and returned to work after a six-week period. Claimant requested benefits, payment of her medical bills and attorneys’ fees. Employer answered by denying that Claimant sustained a work-related injury because Employer did not believe that the injury had occurred on its premises.

At hearing, Claimant described the parking lot relative to the location of Employer’s business. Claimant also described the irregularity in the pavement in front of Employer’s business that caused her injury. While this area was a common area, the WCJ found that the injury occurred in the scope of Claimant’s employment, on Employer’s premises, and that her presence was required by the nature of her employment as she had to walk to and from her car to get to the business. Although benefits were granted, the WCJ determined that Employer’s contest of the petition was reasonable and did not award fees. The Board affirmed.

On appeal, Claimant contended that a parking lot leased by Employer was part of its premises about which there could be no debate. Therefore, the contest was unreasonable on its face. The Court relied on recent case law that held that the mere fact that an employer leased or even owned a parking lot where an employee was injured was not dispositive of the question of whether that parking area was part of the employer’s premises. Herein, Employer did not own the lot, nor was it responsible for its maintenance. Employer did not mandate that its employees use the lot, and the lot was open to the general public.

Although Employer did not prevail on the claim, the Court agreed that contest of the claim was not unreasonable. The dispute as to whether the area where Claimant fell was Employer’s actual “premises” was reasonable. Accordingly, the decision was affirmed.

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