April 6, 2006

Digest of
Appellate Decisions
March 2006

Mark and Cincinnati Insurance Co. v. WCAB (McCurdy), 2753 C.D. 2004 (Pa. Cmwlth. 2006)

Meadow Lakes Apartments v. WCAB (Spencer), 350 C.D. 2005 (Pa. Cmwlth. 2006)

Borough of Heidelberg and Inservco Insurance Services, Inc. v. WCAB (Selva), 1627 C.D. 2005 (Pa. Cmwlth. 2006)

Linton v. WCAB (Amcast Industrial Corporation), 1915 C.D. 2005 (Pa. Cmwlth. 2006)

Burkart Refractory Installation v. WCAB (Christ), 2275 C.D. 2005 (Pa. Cmwlth. 2006)

Mark and Cincinnati Insurance Co.
v. WCAB (McCurdy),
2753 C.D. 2004 (Pa. Cmwlth. 2006)

Reimbursement from Supersedeas Fund was permitted for retroactive payments, when those payments were made after initial supersedeas denial.

Commonwealth Court affirmed the decision of the Board, which granted Employer reimbursement from the Supersedeas Fund and amended and increased the reimbursement to include retroactive benefits. Employee filed her claim in 1993 alleging that she became ill with contact dermatitis on her hands as a result of her employment. Employer alleged that her disability was related to a chronic non-employment related problem. After four years of litigation, Employee was granted ongoing benefits retroactive to 1993. Employer appealed and simultaneously filed a supersedeas request. The Board denied the request. On the merits, the Board found that Claimant had established an aggravation of her pre-existing dermatitis. However, the Board did reverse the finding of an ongoing disability and remanded the matter to determine when Claimant fully recovered. The second WCJ found that Claimant was fully recovered in 1995 and amended the award. The Board affirmed this decision.

Employer filed an application with the Fund requesting reimbursement from the date of Claimant’s recovery. The Bureau determined that Employer could be reimbursed only for the amount representing payments that accrued after the supersedeas request. The WCJ agreed with the Bureau’s position and the Board agreed.

The Court took note of the discrepancies in previously reported decisions on this issue and analyzed sections 413 and 430. The Court noted the distinction between requests for supersedeas in cases where changes are made to an existing compensation situation and in cases where there have been no previously established compensation liability. The latter scenario generally involved significant retroactive benefits. Section 443(a) contained no prohibition against reimbursement for a payment of retroactive benefits, and referred only to the payments made after the denial of a supersedeas request. The Court went on to specifically overrule cases in which supersedeas was sought under section 430 from a recent decision and where reimbursement was sought for retroactive benefits paid after supersedeas denial. The determining point for reimbursement was the timing of the payment of the retroactive amount. While a supersedeas order could not be made retroactive to an earlier date, if the payment of retroactivity was made after the supersedeas denial, then it could be reimbursed later.

The Court specifically overruled the decision in Wasau Ins. Co. v. WCAB (Commonwealth of Pa.), 826 A.2d 21 (2003) and determined that the instant case was controlled by the decision in Bureau of Workers’ Compensation v. WCAB (Consol. Freightways, Inc), 876 A.2d 1069 (2005). Because reimbursement was consistent with the plain language of the Act and the Court’s most recent decision on the issue, the decision was affirmed and modified to permit reimbursement of the full amount paid by Employer. Judge McGinley filed a dissenting opinion.

Meadow Lakes Apartments
v. WCAB (Spencer),
350 C.D. 2005 (Pa. Cmwlth. 2006)

WCJ’s acceptance of Claimant’s evidence of injury and pain supported Claimant’s petition. Failure of Claimant’s doctor to pronounce a specific diagnosis or treatment plan did not disqualify the injury from compensation.

Commonwealth Court affirmed the decision of the Board, which revised the WCJ’s decision, and granted Claimant’s review petition to expand the description of his accepted injury. Claimant was injured in 1997 and Employer accepted the injury as a medial meniscal tear of the right knee. A supplemental agreement further described the injury as “Grade II chondromalacia.” In 2001, Claimant filed a review petition, alleging that his condition had worsened and that the NCP had incorrectly described his injury. Claimant alleged additional injury to his left knee, right hip and low back. Claimant’s doctor testified that he put these conditions under the present complaint section of his report, since, in his experience, he would not be compensated for the examination visit if he placed additional injuries in the diagnosis section. The doctor further testified that Claimant’s additional injuries had occurred as a result of Claimant’s compensation for the original right knee injury.

The WCJ accepted Claimant’s evidence as credible, but found that his doctor did not sufficiently define the pain or present any medical diagnosis or recommended treatment for the new injuries. On appeal, the Board determined that the WCJ erred in concluding that Claimant failed to prove additional injuries. The Board amended the NCP to include the new injuries. In appealing that decision, Employer contended that the Board usurped the WCJ’s function by finding additional injuries. The Court noted that the Act gave the Board the final authority to make the conclusions of law. Whether the facts found by a WCJ reflected that a party had met the burden of proof was a conclusion of law. The record clearly showed that the WCJ accepted Claimant’s evidence. Therefore, the Court characterized the issue for appeal as whether or not Claimant satisfied his burden of proof.

The Court could find no authority that required a workers compensation injury to workers to carry a professional diagnosis or descriptive tag. As long as the pain experienced by Claimant was causally related to his employment, it was compensable under the Act as an injury. The presence of a diagnosis could impact on credibility issues, but it was not a legal precondition. Instantly, Claimant’s testimony as to the pain experienced was accepted by the WCJ, and since the condition was causally related to the accepted work injury, the evidence was sufficient as a matter of law to justify expansion of the injury description. Finally, the characterizations by Claimant’s doctor did not prompt a forfeiture of Claimant’s claim, particularly when the findings were not as misleading. Accordingly, the Board’s decision was affirmed and the Court amended the NCP to include the condition found by the WCJ.

Borough of Heidelberg and
Inservco Insurance Services, Inc.
v. WCAB (Selva),
1627 C.D. 2005 (Pa. Cmwlth. 2006)

Injured volunteer EMT was automatically entitled to benefits in the amount of the statewide average weekly wage, despite the fact that she had not worked for pay in 32 years and received Social Security retirement benefits.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s petition for wage loss benefits. Employer conceded that Claimant was an employee who was injured while performing duties as a volunteer EMT. Since Claimant was receiving Social Security retirement benefits and not working at the time of the injury, Employer challenged her entitlement to wage loss benefits. Although she had not worked for pay in 32 years, Claimant testified that she did not consider herself removed from the workforce. Claimant further stated that she had no present intention to work anywhere for wages. The WCJ found that Claimant was entitled to the presumption that her wages were at least equal to the statewide average weekly wage, since Employer could not persuade the WCJ otherwise. On appeal, Employer contended that the WCJ’s findings were not supported by substantial evidence. Since section 601(b) provided for the irrebuttable presumption of an average weekly wage for a volunteer ambulance worker, entitlement to benefits was automatic. The Court held that the legislature intended to grant volunteer emergency workers wage loss benefits without regard to their actual earnings in order to meet the justifiable social purpose of protecting those who volunteered to protect the community in emergency situations. Since the Court held the presumption to be irrebuttable, the amount of Claimant’s earnings, or the lack thereof, was not relevant to the inquiry and the questions as to the amount of proof presented were moot. Accordingly, the decisions were affirmed.

Linton v. WCAB
(Amcast Industrial Corporation),
1915 C.D. 2005 (Pa. Cmwlth. 2006)

Employer was entitled to multiple vocational interviews, if the requests were deemed reasonable and necessary by the WCJ.

Commonwealth Court affirmed the decisions of the WCJ and the Board and granted Employer’s petition for an expert interview of Claimant. Claimant had been receiving temporary total disability benefits for a 1998 injury. Claimant had already participated in one vocational interview and declined a request to participate in a second requested interview. Employer filed the instant petition, and Claimant responded that the Act did not require him to participate in more than one vocational interview. The WCJ held that the Act authorized a WCJ to order attendance at vocational interviews as often as deemed reasonably necessary. Herein, it had been three years since the last interview, and the request was preceded by a physical exam that prompted Employer’s request.

After this decision, Claimant filed for supersedeas, which was granted for a month pending oral argument, then later revoked. On appeal, Claimant argued that the denial of supersedeas was unconstitutional and objected to the underlying merits of the case. The Court initially held that the temporary supersedeas was not improper because Claimant had failed to allege that he would suffer irreparable harm if the supersedeas were not granted. On the merits, the Court found that the plain language of section 314 allowed for multiple exams by a physician or other expert. The Court rejected any argument by Claimant that only medical exams could be performed more than once. Claimant was protected from harassment by employer by the requirement that the request for a second expert interview must be deemed reasonable by the WCJ. Although there was no case law establishing standards for review of the WCJ’s decision, the Court applied an abuse of discretion standard and found that the WCJ had not erred.

Burkart Refractory Installation
v. WCAB (Christ),
2275 C.D. 2005 (Pa. Cmwlth. 2006)

Board did not err in dividing earnings of Claimant, a new employee, by number of actual weeks worked, not weeks Claimant was available for work in determining his average weekly wage.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Claimant’s petition to review. Claimant was injured after a few months on the job. Claimant received benefits pursuant to a TCNP. Both parties later filed petitions to review, contending that the AWW was incorrect. Employer contended that Claimant was employed on an on-call basis. The WCJ set the AWW at $311.82. The Board affirmed this finding, but modified that AWW amount to $454.17. Although Claimant had been employed for 16 weeks, he received earnings for only 12. The Board divided the gross wages by 12, not 16. Employer argued that section 309(d.1) should apply. The Court analyzed case law and determined that this section was to be applied to claimants with a work history of 52 weeks or more. Since Claimant had worked less that this time, the Court looked to section 309(d.2) which provided that the AWW should be the hourly wage rate multiplied by the number of hours Claimant was expected to work per week. Since Claimant was on an on-call basis, this section was not applicable either. The Court agreed that the Board’s divisor of 12 was reasonable. To use the number 16 unfairly penalized Claimant for starting work at a time when Employer did not have enough work for him. Since the Board included weeks where Claimant’s pay was low, the Board properly accounted for the unsteady nature of Claimant’s income. The Board’s decision was affirmed because it accurately represented the economic reality of the situation affirmed.

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