November 2, 2010

Digest of
Appellate Decisions
October 2010

Commonwealth of Pennsylvania, Department of Corrections v. WCAB (Wagner-Stover), 1133 C.D. 2008 (Pa. Cmwlth, 2010)

Muir v. WCAB (Visteon Systems LLC), 274 C.D. 2010; Visteon Systems and GAB Robins v. WCAB (Muir), 279 C.D. 2009 (Pa. Cmwlth. 2010)

Payes v. WCAB (Commonwealth of Pennsylvania/State Police), 461 C.D. 2010 (Pa. Cmwlth. 2010)

Day v. WCAB (City of Pittsburgh), 2495 C.D. 2009 (Pa. Cmwlth. 2010)

Allegis Group and Broadspire v. WCAB (Coughenaur), 977 C.D. 2010 (Pa. Cmwlth. 2010)

Commonwealth of Pennsylvania, Department of Corrections v. WCAB (Wagner-Stover), 1133 C.D. 2008 (Pa. Cmwlth, 2010)

Earlier determination made by the Secretary of Department of Corrections that Claimant was recovered from her work injury was binding on WCJ and supported grant of Employer’s termination petition.

Commonwealth Court reversed the decisions of the Board and the WCJ, which denied Employer’s petition to terminate benefits. Claimant was employed as a canteen manager at Employer’s prison in 1989 when a riot broke out at the prison. Claimant was not at work at the time of the riot, but alleged Post-Traumatic Stress Disorder (PTSD) as a result of the fear and stress experienced after the riot. Employer issued an NCP accepting liability for Claimant’s PTSD and agreed to pay compensation benefits for total disability, as well as salary in accordance with Act 632.

Over the years, Claimant attempted to return but could not. Employer attempted to terminate benefits during this time, but could not prove that Claimant was recovered. Employer then instituted an administrative proceeding in 2005 to terminate the salary Claimant continued to receive under Act 632. An assigned hearing examiner conducted a hearing and credited the testimony of the independent medical examiner, who attributed Claimant’s difficulties to a pre-existing personality disorder, not PTSD. The examiner determined that Claimant was no longer entitled to Act 632 benefits. Claimant appealed this decision, but it was adopted by the Secretary of Corrections and ultimately affirmed by the Court after a separate appeal.

Employer then filed a petition to terminate workers’ compensation benefits, relying on the determination from the Act 632 proceedings. Claimant filed a review petition seeking to add TMJ as a work injury. Claimant presented evidence that she had not recovered and Employer asserted the adjudication of the Act 632 action. The WCJ denied that the Act 632 determination was controlling and dismissed Employer’s termination petition and granted Claimant’s review petition, allowing her unreasonable contest fees. The Board affirmed all of this decision but for the award of fees.

On appeal, the Court detailed the doctrine of collateral estoppel. Claimant contended that estoppel did not apply because the issues determined were different and the procedural differences between the two actions were too dissimilar. The Court disagreed that both actions required that Employer prove that Claimant had fully recovered from her work injury. Further the amount in controversy between the two actions was comparable and, even though the proceedings were governed by different procedural rules, they were sufficiently similar to have allowed Claimant a full and fair opportunity to litigate the issue of compensation for her work injury. Therefore, finding that the WCJ had erred in failing to be guided by the Secretary of Corrections’ determination, the Board’s order was reversed. Judge Leadbetter dissented and Judge Pellegrini issued a dissenting opinion that favored affirming the WCJ’s determination.

Muir v. WCAB (Visteon Systems LLC),
274 C.D. 2010;
Visteon Systems and GAB Robins v. WCAB (Muir),
279 C.D. 2009 (Pa. Cmwlth. 2010)

Employer had the burden of sending Claimant form LIBC-756 every six months in order to claim a retroactive offset credit for Claimant’s receipt of old age Social Security benefits.

Commonwealth Court affirmed the decision of the Board, which modified Claimant’s benefits to zero for an eleven-week period. The Court also affirmed the decisions of the Board and the WCJ to deny Claimant unreasonable contest fees and to grant Employer’s review petition changing Claimant’s status from temporary total disability to partial disability.

Claimant had suffered a neck sprain and strain in 2000. In 2005, Claimant advised Employer that she was receiving Social Security disability benefits. Two years later, Claimant advised Employer that she was receiving Social Security old age benefits. Employer filed an offset notice, claiming that it was entitled to an offset credit for half the old age benefits that would be taken over an eleven-week period. The resulting credit left Claimant with no benefits and then reduced benefits would be paid.

Employer then filed a review petition based on an impairment rating determination of a five percent whole impairment rating. Claimant filed a penalty petition in response and requested unreasonable contest fees. The WCJ accepted the testimony of the doctor who performed the impairment rating exam, and changed Claimant’s status to partially disabled. The WCJ denied Claimant’s penalty petition.

The Board affirmed the disability determination, but held that it was error to deny the penalty petition with respect to the retroactive credit because Employer had a duty to provide Claimant with the proper forms to report the receipt of her old age benefits. The unreasonable contest decision was affirmed. In reaching its decision, the Court found no error in the Board’s interpretation that previous case law placed the burden on employers to provide claimants with the proper reporting forms every six months in order to obtain retroactive credit for the old age benefits. The Court noted the humanitarian purposes of the Act and sought to limit the financial strain large credits generated by a lengthy retroactive period would have on claimants. Despite this determination, the Court did not find that the case law had provided a clear direction on the issue, so the WCJ did not abuse her discretion in failing to award a penalty. Therefore, the credit as adjusted by the Board was affirmed.

Payes v. WCAB (Commonwealth of Pennsylvania/State Police), 461 C.D. 2010 (Pa. Cmwlth. 2010)

State police officer was not entitled to benefits after trauma suffered from accident where officer struck and killed a pedestrian; incident was not abnormal working condition in the field of police work.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision and denied Claimant’s claim petition. Claimant sought total disability for the Post-Traumatic Stress Disorder (PTSD) he suffered as a result of accidentally hitting and killing a pedestrian while he was on duty in 2006.

At hearing, Claimant presented the testimony of a psychiatrist and a psychologist who testified that Claimant was unable to return to work as a result of his trauma from the accident. Employer’s expert testified to the contrary. The WCJ credited the testimony of Claimant and his experts and granted the petition. The WCJ ruled that Claimant developed a compensable mental injury resulting from a mental stimulus. He further found that the mental injury was sustained as a result of an abnormal working condition. In reversing this decision, the Board ruled that, as unfortunate as the result may be, it could not find that accident constituted abnormal working conditions for a state police officer. Claimant appealed on this issue.

The Court detailed a number of cases as examples of highly stressful situations not being unusual working conditions for police officers. Police officers had no higher duty of proof when dealing with a mental injury, but it was often more difficult for them to establish abnormal working conditions in a field that was already so highly stressful. The Court noted that Claimant had received training regarding such accidents at the police academy, and testimony had indicated that one of his fellow officers had experienced the same situation. Claimant responded to the accident in the manner proscribed by his training; but for the part that Claimant was the one who struck the victim, there would be no question that any resulting psychological injury would not be compensable. The fact that Claimant hit the victim did not transform the incident as one that supported an award of compensation. While the situation may have been unusual, it was not so much more stressful and abnormal than the highly stressful nature of Claimant’s employment. The Board’s decision was affirmed.

Day v. WCAB (City of Pittsburgh), 2495 C.D. 2009 (Pa. Cmwlth. 2010)

Claimant’s application for retirement benefits and pension, his failure to look for work, and his acknowledged physical ability to perform light duty work, supported the conclusion that Claimant had voluntarily left the workforce and was no longer entitled to benefits.

Commonwealth Court, in an en banc decision, affirmed the decision of the Board and the WCJ, which granted Employer’s petition to suspend Claimant’s benefits. Claimant worked in Employer’s sanitation department. In 1992, Claimant suffered a neck injury and began receiving benefits. After surgery, Claimant returned to his position after approximately a year. Claimant was unable to continue in that position and began working for Employer in light duty positions in 1995 or 1996. Employer laid Claimant off in 2000 or 2001. Claimant then received unemployment compensation. When those benefits ran out, Claimant applied for and received his Social Security pension, as well as his pension from Employer. Claimant also received temporary total disability workers’ compensation payments.

Employer requested that Claimant undergo an IME, which found that Claimant was capable of full-time, medium duty work. Employer sent Claimant a notice of his ability to return to work, and filed this petition seeking suspension, arguing that Claimant had voluntarily withdrawn from the workforce. At hearing Claimant testified that he believed he was able to perform the light duty work he had last performed for Employer. He further testified that he had not looked for work since he stopped receiving unemployment compensation. Claimant presented no medical evidence. Employer presented the testimony of the doctor who performed the IME.

The WCJ determined that Claimant had voluntarily removed himself from the workforce and granted the petition. Before the Court, Claimant argued that Employer was required to prove that it had either offered Claimant a modified job or directed him to a similar position with another employer before the burden of proof shifted to Claimant to show that he had not removed himself from the workforce. While this was certainly the general rule, the Court cited the Henderson case that did not place a burden on employer if it could be shown that a claimant intended to end his career. Instantly, Claimant had applied for retirement benefits. When he received unemployment compensation, although he registered with the unemployment center, he took no other steps to look for work. Additionally, Claimant testified that he believed he could work, but was not looking for work. Based on the totality of the circumstances, the WCJ was justified in determining that Claimant had voluntarily removed himself from the workforce. Employer was not required to show that there was work available within Claimant’s restrictions since evidence had been presented that Claimant was medically able to perform some work and that Claimant had voluntarily withdrawn from the workforce. Once these issues were proven, the burden shifted to Claimant to prove that he had not retired. Contrary to Claimant’s assertion, Employer still carried the initial burden of proof. Judges Leavitt and Mc Cullough concurred in the result, but differed in the rationale that supported that result.

Allegis Group and Broadspire v. WCAB (Coughenaur),
977 C.D. 2010 (Pa. Cmwlth. 2010)

Employer could not be penalized for sending settlement check to Claimant at incorrect address when Claimant did not prove that Employer had ever been given notice of Claimant’s correct address.

Commonwealth Court reversed the decisions of the Board and the WCJ, which granted Claimant’s penalty petition. The parties had reached a settlement that called for a $60,000 payment to Claimant. The check was sent to an incorrect address because the insurance adjuster failed to make note of an address change for Claimant. The WCJ found that a severe hardship was caused to Claimant and awarded a 35% penalty.

On appeal, Employer argued that the WCJ had failed to cite any evidence that showed what hardship had been suffered by Claimant and issue any conclusions to show in what way the Act had been violated. The Court cited case law standing for the principle that while there was no grace period for the receipt of funds before a penalty could be imposed, the imposed penalty “should be tied to some discernable and avoidable wrongful conduct.” While the evidence showed that the check had not been sent to the correct address, there had been no evidence offered to show when, if ever, Employer had been notified of the correct address. If the proper address had never been supplied, Employer did not violate the Act The decision was vacated and remanded for new findings of fact and conclusions of law regarding the notice of change of address.

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