May 3, 2006

Digest of
Appellate Decisions 
April 2006

City of Philadelphia v.
WCAB (Fluek),
1250 C.D. 2005 (Pa. Cmwlth. 2006)

Claimant bore burden of proving subsequent injury when the injury had no reasonable nexus or obvious relationship to the injury described in the NCP

Commonwealth Court reversed the decision of the Board and reinstated the WCJ’s original decision granting Employer’s termination petition. Claimant was injured in 1986 and Employer paid benefits. In 1995, Employer filed a petition for modification/suspension, stating that job referrals had been forwarded to Claimant, but that he had acted in bad faith. Employer later amended the petition to allege that Claimant had fully recovered from his injury. In response, Claimant filed a review petition, seeking to amend the NCP to include a lower back injury.

After hearing, the WCJ granted the termination petition and denied the review petition. In so doing, the WCJ found the testimony of Employer’s medical expert to be more credible than that of Claimant. On appeal, the Board determined that the WCJ erred by failing to require that Employer prove that Claimant no longer suffered from any alleged back injuries. On remand, the parties presented no new testimony and the WCJ granted Claimant’s petition to amend the NCP to include the lower back injury. To reach this conclusion, the WCJ made factual and credibility determinations different from the first hearing, even though no new testimony was presented. The Board affirmed on appeal.

Before the Court, Employer argued that the Board had erred in vacating the first decision when it was supported by competent evidence and a reasoned decision. Employer also contended that the WCJ and Board decisions on remand were in error because they contradicted the original findings. The Court reviewed the Gumro decision and its application and determined that Claimant bore the burden of establishing a connection between the work-related injury and any ongoing disability. Since Claimant’s subsequent alleged injury was distinct from the original injury and had no reasonable nexus, Claimant was required to prove that any continuing disability was related to the subsequently alleged condition. The Board erred in reversing and remanding the case for additional findings since the WCJ found in the initial decision that Claimant’s subsequent injury was not work-related.

Young v.WCAB
(Zinc Corporation of America),
1753 C.D. 2005 (Pa. Cmwlth. 2006)

Widow was not required to prove exposure to asbestos at employer’s worksite was the causation of decedent’s fatal cancer, when section 301(c) assigned liability to employer based on decedent’s latest exposure to asbestos within the 300-week period pre-dating disease manifestation.

Commonwealth Court reversed the decisions of the WCJ and Board, which denied the claim and fatal claim petitions of decedent and his widow. The parties stipulated that decedent was exposed to asbestos during his 45-year career, and that this asbestos caused his fatal cancer. Employer contended that decedent’s exposure to asbestos at its facility did not contribute to his cancer. The WCJ found employer’s medical experts on the subject to be more persuasive, and determined that no contribution on the part of employer had been proven. The Board affirmed this finding. On appeal, decedent’s widow argued pinpointing the specific time of injury was not required in order to determine liability. The Court agreed with this argument, citing Marcucci and Polk. For specified occupational diseases, like asbestos-related cancer, section 301(c) assigned employer liability based not on the determination of a specific morbidity date, but on the period of latest exposure within the 300-week period pre-dating disease manifestation. The statutory assignment of liability rendered employer the only employer upon which liability can fall because it was the only site of workplace exposure during the 300-week manifestation period. Finally, decedent was not prevented from collecting medical expenses on his lifetime claim petition merely because he had retired prior to his diagnosis. Actual loss of earnings was not required before the reimbursement of medical costs could be ordered. Accordingly, the matter was remanded for the calculation and award of benefits.

Gibson v. WCAB
(Armco Stainless & Alloy Products),
1485 C.D. 2005 (Pa. Cmwlth. 2006)

Penalty petition against employer should not be granted when delay in payment is based solely on pendency of supersedeas request.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision to grant Claimant’s fatal claim petition. The WCJ found that decedent had died from lung cancer contracted as a result of his long-term exposure to harmful gas, dust, and fumes while working for Employer. Employer ultimately filed an appeal with the Pennsylvania Supreme Court. In the interim, Claimant filed a penalty petition more than 30 days after Commonwealth Court had denied a petition for supersedeas filed by Employer. Employer went on to request supersedeas from the Supreme Court and iy was granted. Two months after this, despite the grant of supersedeas, the WCJ heard Claimant’s penalty petition and determined that Employer had violated the Act by failing to pay the benefits in a timely manner. The WCJ stated that Employer could seek any redress from the Supersedeas Fund. The Board reversed this decision and Claimant filed the instant appeal, arguing that the Supreme Court order did not negate Employer’s obligation to pay benefits within 30 days after Commonwealth Court’s order. The Court relied on the recent decision in Snizaski and held that since the delay in payment was only in connection with the pendency of a timely supersedeas request, as allowed by the Board’s regulations, no penalty should be assessed. Therefore, the Board properly reversed the WCJ’s decision.

Keystone Coal Mining Corporation
v. WCAB (Fink),
1487 C.D. 2005 (Pa. Cmwlth. 2006)

Employer remains responsible for Claimant’s medical bills, even though payment of benefits has been exhausted, absent a finding that the disability ceased to exist.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s petition to review medical treatment after Employer’s liability for payment had been exhausted. Claimant had suffered a back injury while on the job in 1987. In 1989, the parties entered into an agreement to pay Claimant partial benefits for 500 weeks. Those payments were exhausted in 1998. After filing an unsuccessful petition for review, Claimant filed the instant petition alleging that Employer refused to pay reasonable medical expenses. Employer argued that it was no longer liable since the benefits had been exhausted. The WCJ relied on section 306(f.1)(1)(i) of the Act, which called for payment of medical expenses “as and when needed.” The WCJ noted that no time limit was provided by the section or any other in the Act. The WCJ granted the petition and awarded attorney’s fees as well. On review, the Board held that the expiration of the 500-week time limit did not serve as a termination of all benefits, nor did the denial of Claimant’s earlier petition for review. The Board affirmed the decision, but vacated the award of attorneys’ fees. The Court agreed that there was no limit to the medical benefits, absent a specific termination of the medical benefits by the WCJ. The Court was unwilling to terminate the medical benefits without a finding by the WCJ that Claimant’s disability ceased to exist. Since the Court could find no error, the decisions below were affirmed.

Brookside Family Practice
v. WCAB (Heacock),
1943 C.D. 2005 (Pa. Cmwlth. 2006)

WCJ erred in relying on medical testimony from Employer’s experts, when they did not testify as to the specific procedure in question.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision to grant Employer’s Petition for Utilization Review Determination. Claimant was injured in 1999 with a fracture of her right foot. After surgery, Claimant returned to work, but stopped working again in 2001. Claimant then sought to expand the NCP’s description of her injury to include other physical and psychological symptoms. The petition was granted and Claimant had a spinal cord stimulator implanted in her spine. Employer questioned the reasonableness and necessity of the procedure. The UR Organization reviewer determined that the procedure was reasonable. Employer then filed the instant petition. The WCJ rejected the testimony of the UR reviewer who noted that Claimant had good pain relief after the surgery, and accepted the testimony of Employer’s medical experts. The Board rejected this finding, ruling that the WCJ’s findings were not supported by substantial competent evidence, since Employer failed to offer any evidence as to the reasonableness of the actual surgery performed. On review, the Court agreed completely with the Board’s analysis, and agreed that absent specific evidence of the procedure in question, the WCJ’s findings were in error.

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