March 6, 2006

Digest of
Appellate Decisions
February 2006

Blong v. WCAB (Fluid Containment, Inserco Insurance Service and Gallagher Bassett Services), 1569 C.D. 2005 (Pa. Cmwlth. 2006)

Budd Baer, Inc. and Universal Underwriters Insurance Company v. WCAB (Butcher), 1770 C.D. 2005 (Pa. Cmwlth. 2005)

Fratta v. WCAB (Austin Truck Rental), 1916 C.D. 2005 (Pa. Cmwlth. 2005)

Sylvania v. WCAB (Wilson), 1220 C.D. 2005 (Pa. Cmwlth. 2005)

Snizaski v. WCAB (Rox Coal Company), 36 WAP 2004 (Pa. 2006)

Dorsey v. WCAB (Crossing Construction Company), 1937 C.D. 2005 (Pa. Cmwlth. 2006)

Blong v. WCAB
(Fluid Containment, Inserco Insurance
Service and Gallagher Bassett Services),
1569 C.D. 2005 (Pa. Cmwlth. 2006)

Claimant’s move to New Zealand supported suspension of benefits in that Claimant would not be available to accept suitable alternate employment found by Employer.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which suspended Claimant’s benefits after finding that Claimant had removed himself from the workforce. Claimant began receiving benefits in 1998 after a carpal tunnel injury to his wrists and hands. Five years later, Employer scheduled an IME. Counsel for Claimant replied that Claimant would be unable to attend, as he had relocated to New Zealand. Employer then filed the instant petition to terminate, reasoning that Claimant had voluntarily removed himself from the workforce as a result of the move. Claimant did not attend the hearing, but was represented by counsel. No evidence was presented to show that Claimant had found other employment. The WCJ suspended benefits, finding that Claimant had voluntarily removed himself from the workforce. The Board affirmed this decision.

On appeal, Claimant argued that the WCJ erred in finding that Claimant had removed himself from the workforce simply by relocating. Claimant contended that Employer should have been required to show that there were appropriate available jobs in the area where he had been injured. The Court disagreed and held that it would be futile for Employer to find jobs suitable for Claimant in Pennsylvania when Claimant had removed himself from that workplace with no indication that he intended to move back should he learn of suitable employment. Accordingly, the order was affirmed.

Budd Baer, Inc. and
Universal Underwriters Insurance
Company v. WCAB (Butcher),
1770 C.D. 2005 (Pa. Cmwlth. 2005)

Claimant could not win modification of NCP to include psychological injuries when petition was filed more than three years after last payment, even though Employer had been paying for Claimant’s treatment from psychologist.

Commonwealth Court reversed in part the decisions of the WCJ and the Board, which denied Employer’s termination petition and granted Claimant’s review petition. Claimant was injured as a result of an explosion. His injuries were described as “multiple injuries from explosion” on the NCP. Claimant’s benefits were commuted in 1996 and Employer remained responsible for continuing payment of causally related medical expenses. In 2002, Employer filed a termination petition, alleging that Claimant had fully recovered from his injuries. Claimant answered with a review petition, alleging an incorrect description of his injury. Claimant later amended the petition to include a claim petition alleging psychological injuries. Claimant testified to severe headaches and back pain. Additionally, his treating psychologist testified as to Claimant’s post-traumatic stress and depression. The WCJ accepted the testimony of Claimant and his psychologist. Further, the amendment of the NCP was allowed, as the WCJ found that it was not time-barred. The Board affirmed the decision.

On appeal before the Court, the Employer raised only the issue of the statute of limitations barring the review petition. The Court relied on the Supreme Court decision in Korach to determine that equitable estoppel could not toll the statute of limitations unless a claimant could establish fraud, concealment or misrepresentation on the part of an employer. Simply because Employer was paying Claimant’s bills from his psychologist, Employer was not barred from later challenging payment. Therefore, the Court held that amendment of the NCP must be denied, since Claimant did not file the petition within three years of his last payment in 1996. Accordingly, that portion of the Board’s order allowing modification of the NCP was reversed.

Fratta v. WCAB (Austin Truck Rental),
1916 C.D. 2005 (Pa. Cmwlth. 2005)

Although Claimant had signed and had notarized C&R agreement, Claimant’s death prior to hearing prevented the WCJ from granting approval, since it could not be determined whether Claimant understood the legal significance of the agreement.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which allowed Employer to withdraw its petition to seek approval of a C&R agreement. Claimant was injured in 1990 and Employer began paying benefits. In 2002, Employer filed for approval for a C&R to which all parties had agreed, and which Claimant had signed before a notary. Claimant died due to unrelated causes three weeks prior to hearing. Based on the death, Employer sought to withdraw its petition. Claimant’s widow sought approval. The WCJ held that since it could not be determined whether Claimant understood the full legal significance of the agreement, it could not be approved. The Court supported the WCJ’s interpretation of this section of the statute, and also held that section 449 was constitutional and did not violate the Equal Protection Clause, nor did it violate the due process rights of Claimant’s widow, since she had no protected interest in the agreement. Accordingly, the decision was affirmed.

Sylvania v. WCAB (Wilson),
1220 C.D. 2005 (Pa. Cmwlth. 2005)

Claimant was not entitled to benefits for period of time that plant was shut down under terms of collective bargaining agreement.

Commonwealth Court reversed the decisions of the Board and the WCJ, which granted Claimant’s petition to reinstate benefits. Claimant had been injured and received benefits in 1998. Claimant returned to work with restrictions, but Employer sought to suspend the benefits when Claimant refused to execute supplemental agreements. Claimant filed a petition to reinstate benefits, alleging that Employer would not have any available work within her medical restrictions. Employer contended these work times were governed by the collective bargaining agreement, which allowed for scheduled shut downs without pay. The WCJ held that the Claimant’s earning power was adversely affected through no fault of her own and she should be compensated for the shut down period. On appeal, Employer argued that Claimant, through the collective bargaining agreement, had agreed to take vacation time during the shut down, and was therefore not entitled to additional compensation. The Court held that Claimant was not entitled to the benefits since the work loss was due to factors other than the work-related disability. There was no showing of bad faith on the part of Employer, and Claimant’s loss of earning occurred only because she elected not to receive her vacation pay, as called for by the CBA. Accordingly, the decisions were reversed.

Snizaski v. WCAB (Rox Coal Company),
36 WAP 2004 (Pa. 2006)

Employer was not subjected to penalties for failing to pay fatal claim award after 30 days, when a valid supersedeas petition was pending with the Board.

The Pennsylvania Supreme Court affirmed the decisions of Commonwealth Court and the Board, which reversed the WCJ’s decision to grant Claimant’s penalty petition. Claimant was the widow of employee, who had died in a car accident on his way to work. Claimant filed a fatal claim petition that was ultimately granted by the Board. Employer filed for reconsideration and supersedeas within 30 days after the entry of the order. When Employer failed to pay after 30 days, Claimant demanded payment. Employer denied the obligation to make payment during the pendency of its supersedeas petition, but paid in full a few days later. Ultimately both the Board and Commonwealth Court denied the petition. After denial, Claimant filed the instant penalty petition. The WCJ rejected Employer’s argument regarding the supersedeas petition, and awarded a ten percent penalty and counsel fees. On appeal, the Board and Commonwealth Court agreed that the pendency of a timely supersedeas request was a valid defense. On review before the Pennsylvania Supreme Court, Claimant argued that the plain language of section 428 established that Employer was in default and that a penalty was mandated, despite any regulations promulgated by the Board relating to supersedeas petitions. Employer countered by saying it could not be penalized when it fully complied with the Board’s regulations regarding supersedeas petitions.

The Court held that section 428 did not define a default or a time limit, but merely gave claimant the right to secure a judgment by default if the employer was in default. The Court found that since an employer was entitled to seek supersedeas, the Board’s actions in promulgating rules of procedure for supersedeas requests were reasonable. The Court believed that the logical conclusion was that an employer could be deemed in default only if it failed to seek supersedeas while pursuing additional review or refused to make a compensation payment after its supersedeas request was denied. Justice Newman dissented, disagreeing with the rationale of the majority and contending that the plain language of section 428 required the awarding of penalties.

Dorsey v. WCAB
(Crossing Construction Company),
1937 C.D. 2005 (Pa. Cmwlth. 2006)

Since WCJ’s decision was supported by at least two stated verifiable reasons for accepting Employer’s doctor’s testimony, his decision was affirmed.

Commonwealth Court affirmed the decision of the Board and the WCJ, and denied Claimant’s claim petition. Prior to his employment, Claimant had had surgery on both his knees and had been advised by his doctor that he would require knee replacement surgeries. Nearly two years after he began working for Employer, Claimant stopped working due to pain in his knees. He underwent knee replacement surgeries to both knees shortly thereafter and then filed the instant claim petition. Claimant alleged that he had suffered a work-related aggravation of a pre-existing arthritic condition in both his knees. Employer denied these allegations. The WCJ rejected the opinion of Claimant’s doctor that the physically demanding job with Employer put stress on Claimant’s knees and aggravated his condition. The WCJ instead accepted the opinion of Employer’s doctor who stated that Claimant’s work did not substantially contribute to his condition or the need for surgery. On appeal, Claimant alleged that the WCJ did not make a reasoned decision. The Court found that the WCJ’s reliance on the advice of Claimant’s family doctor made prior to employment regarding knee replacement surgery as a sufficient reason to provide appellate review and support the WCJ’s credibility determination. Additionally, the failure of Claimant’s physician to review Claimant’s family doctor’s records as Employer’s physician did, also supported the WCJ’s decision and was reason enough to affirm it. Because the WCJ stated verifiable reasons for his credibility determination, his decision met the reasoned decision requirements of section 422(a) and was affirmed.

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