June 2, 2006

Digest of
Appellate Decisions
May 2006

Taylor v. WCAB
(Bethlehem Area School District),
1651 C.D. 2005 (Pa. Cmwlth. 2006)

Vocational counselor’s expenses could not be reimbursed because a doctor had not supervised his work and he was not a licensed health care professional.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s review petition seeking reimbursement for the expenses of a vocational expert. Claimant suffered his work-related injury in 1996, which resulted in partial paralysis and bowel and bladder dysfunction. When Employer sought to offer Claimant positions to return to work, Employer contacted Claimant’s doctor and was told that Claimant would benefit from the services of a vocational counselor. Claimant hired a counselor on his own and his doctor later wrote a prescription for same. When the claim for reimbursement was made, the WCJ relied on the absence of the counselor’s professional license in Pennsylvania. On appeal, Claimant argued that the prescription written by his doctor provided a basis for reimbursement under section 306(f.1)(1) of the Act. The Court ruled that the section allowed reimbursement for medical services as provided by a health care provider. Although the services were labeled as counseling, the vocational counselor was not a licensed medical practitioner in Pennsylvania. Despite the prescription, there was no indication that the doctor supervised the counselor. The Court went on to distinguish other examples of reimbursement for non-medical expenses as covered by other sections of the Act. Despite the humanitarian purpose of the Act, the Court could not grant reimbursement for health care services that were not provided by a licensed health care provider.

Elliott Turbomachinery Company
and ITT Specialty Risk Services
v. WCAB (Sandy),
2215 C.D. 2005 (Pa. Cmwlth. 2006)

Claimant’s relationship with Employer was ongoing, despite weeks of layoffs, since the layoffs were voluntary and available to Claimant based on his seniority; section 301(d) was the proper section to determine the AWW.

Commonwealth Court affirmed the decision of the WCJ and the Board to award Claimant benefits, but remanded the matter to the WCJ for recalculation of the AWW. Claimant suffered an injury in 2002 resulting in a binaural hearing loss greater than 10%. Claimant presented his doctor’s testimony at trial, and Employer presented depositions of 17 other workers that testified to the noise levels on the premises. Additionally, medical testimony was presented alleging that Claimant’s hearing loss was not related to his employment. The WCJ deemed Claimant’s medical expert credible and found that Claimant’s hearing loss was attributable to the work environment. The WCJ rejected Employer’s defense that even though noise existed in the workplace, it was not hazardous. Further, Employer’s other expert testimony was not reflective of the work environment.

The Court held that the WCJ’s findings as to the disability were supported by substantial evidence in that Claimant’s testimony was more credible. However, the Court did find merit in Employer’s objection to the WCJ’s calculation of the AWW. In the previous 52-week period, Claimant had been laid off for several periods during which he was not required to keep in touch with Employer. The WCJ calculated the AWW pursuant to section 309(d.1). The Court agreed that an employment relationship continued to exist between the parties. Claimant accepted lay offs voluntarily so that younger employees would not be laid off. He was entitled to make this decision due to his seniority. Section 309(d.1) was to be used for calculation purposes if the claimant was not within the employer’s employ. Herein, Claimant was a long-term employee who maintained his employment relationship in the four quarters preceding his disability. Therefore, the AWW should have been calculated under Section 309(d). Accordingly, the matter was remanded for recalculation of the AWW under section 309(d).

Marks v. WCAB
(Dana Corporation),
1863 C.D. 2005 (Pa. Cmwlth. 2006)

Burden of proof of cessation of all work-related injury is always with employer and never shifts to claimant regardless of how benefits were generated.

Commonwealth Court vacated the decisions of the WCJ and the Board, which denied Claimant’s review petition and granted Employer’s termination petition. Claimant was injured in 2001 after 32 years working for Employer loading and unloading packages. The parties entered into an agreement a few months later that described Claimant’s injury as lumbosacral strain and sprain. Employer filed a termination petition a year later alleging that Claimant had recovered. When Claimant failed to appear, the WCJ granted the petition. The matter was remanded for taking evidence on proof of service. In the interim Claimant filed a review asking that his injury be expanded to include herniated discs and other back injuries. While Employer’s medical expert agreed that Claimant suffered from the additional complaints alleged in this petition, he denied that the medical evidence indicated that the work injury was the cause of Claimant’s additional injuries. The WCJ found the testimony of Employer’s medical expert to be more persuasive and granted the termination petition. The Board affirmed the decision, ruling that Claimant had the burden to prove that the additional injuries were work-related inasmuch as Claimant had executed agreement for compensation.

On appeal, Claimant argued that the burden should have been placed on Employer to prove a lack of objective medical findings to substantiate Claimant’s additional complaints and to prove that his continued disability was not causally related to the work injury. The Board, without support of case or statutory law, presumed that the burden of proof was on Claimant based on the executed agreement. The Court relied on well-established case law that held that Employer was required to prove that Claimant was fully recovered before prevailing on a termination petition. Even though Employer’s burden to prove the cessation of all work-related disability is a considerable one, it never shifts to Claimant because the disability is presumed to continue until proved otherwise. The Court went on to find that although the WCJ made credibility determinations as to the medical testimony, no such determination was made with regard to Claimant’s testimony about his continuing pain and his limitations at work. Since the WCJ had failed to make the necessary credibility findings in addition to improperly assessing the burden of proof, the matter was remanded for the entry of a new decision. Judge Leadbetter dissented.

Carroll v. WCAB
(U.S. Airways),
2279 C.D. 2005 (Pa. Cmwlth. 2006)

Penalties for failure to pay Board-ordered reimbursement for massage therapy were not assessed, when Employer reasonably relied on Bureau direction to stop payment.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s petition for payment of her massage therapy bills. Employer began paying benefits for Claimant’s work-related injury in 1994. In 1999, Employer first sought UR regarding the appropriateness of the massage therapy prescribed by Claimant’s physician. The WCJ and the Board ultimately determined that the therapy was reasonable and necessary.

Employer filed a second petition, which was returned by the Bureau. The Bureau indicated that a massage therapist was not a defined health care provider, and told Employer that it did not have to pay for the treatment. Employer ceased payment and Claimant filed a penalty petition. The WCJ denied the petition, the Board reversed and remanded. The WCJ again denied the imposition of penalties because Employer had reasonably relied on the advice of the Bureau. The Board affirmed this decision. On appeal, Claimant argued that Employer could not unilaterally stop payment without an order from the WCJ and was obligated to pay regardless. The Court noted that even though a violation of the Act was apparent, the imposition of penalty was discretionary. Herein, where Employer had attempted to terminate the order only to be frustrated by the Bureau’s refusal to accept the petition, penalties were not appropriate. Employer reasonably relied on the Bureau’s advice to stop payment, thus excusing its non-compliance with the Act.

Varghese v. WCAB
(Ridge Crest Nursing Home,
Consolidated Risk Services),
28 C.D. 2006 (Pa. Cmwlth. 2006)

Penalties could be assessed against employer for failure to pay benefits within 30 days of the denial of a supersedeas request by the Board, even if a supersedeas request was pending before Commonwealth Court.

Commonwealth Court reversed that part of the Board’s decision that failed to assess a penalty against Employer for failing to pay benefits within 30 days of the denial of supersedeas. Claimant was injured in 1999. Thereafter, Employer filed a termination petition and Claimant filed a penalty petition. The WCJ granted both petitions, but the Board reversed the termination of Claimant’s benefits. Employer filed a supersedeas request, which was denied by the Board. Employer then filed a second supersedeas request with the Court and was denied. Employer paid the amount owed 28 days after the denial of the second petition.

Also during this time, Employer suspended Claimant’s benefits when Claimant’s attorney returned the LIBC-760 form to Employer without including the amount of wages earned by Claimant. Benefits resumed when the attorney forwarded two paystubs from Claimant. Claimant then filed the instant petition seeking penalties and attorney’s fees for the failure to pay benefits within 30 days of the initial denial of supersedeas, and for the suspension of benefits after the LIBC-760 was submitted. The WCJ and the Board denied the petition on both grounds, reasoning that the obligation to pay the benefits was stayed during the pendency of the second petition to the Court. The Court disagreed with this reasoning.

The Court distinguished the recent Snizaski case and held that, while an employer was not obligated to make payment within 30 days if a supersedeas petition was pending before the Board, that suspension did not continue during the filing of a second petition before the Court. In doing so, the Court did not refute the Candito case, which did not assess penalties when Employer prevailed on its supersedeas petition before the Court. However, the Court cautioned employers that a second petition could not serve as a safe harbor to allow employers to avoid making payments for a second period. Employers would be gambling that their supersedeas petition before the Court would be granted. By doing so, the Court sought to deter employers from filing supersedeas petitions with the Court just to delay payment. With regard to the suspension of benefits for the failure to completely fill out the form, the Court held that the suspension was justified, since Claimant had failed to provide the legally required information regarding employment. Accordingly, the matter was remanded for the assessment of penalties. Judge Simpson dissented from that part of the petition dealing with the supersedeas request.

Vandervort v. WCAB
(City of Philadelphia),
1143 C.D. 2005 (Pa. Cmwlth. 2006)

Absent entry of the original contract into evidence, Claimant could not show that the City of Philadelphia was his statutory employer under section 302(b), since there was no proof of the City’s involvement in his employment.

Commonwealth Court affirmed the decision of the Board, which had reversed the decision of the WCJ granting Claimant’s joinder petition against the City of Philadelphia. Claimant worked as a laborer for a contractor performing a demolition job for the City. Claimant was injured on the job, resulting in partial vision and hearing loss. Claimant suffered anxiety and depression as a result of his injuries. Claimant filed the instant joinder petition, alleging that the City was his statutory employer under section 302(b) of the Act. The City failed to answer the petition or appear at any hearing. The original contract had been lost and the WCJ found Claimant to be a credible witness in testifying that he understood Employer to be a subcontractor of the City’s. This testimony was supported by two contract amendments that were available for review. The Board reversed, finding that Employer was a general contractor not a subcontractor, thus preventing Claimant from meeting the common law requirements found in McDonald for proving the City as a statutory employer. The Board also found that the WCJ erred in determining that he understood Employer to be a subcontractor, since the evidence did not bear out this understanding.

The Court first analyzed the McDonald case and noted that it has been used over the years to determine whether an entity is a statutory employer under both the tort immunity section of the Act and the insurer section. Later cases relaxed this standard when determining an entity to be liable for the payment of benefits, and the Court agreed that these looser standards were appropriately applied to Claimant’s petition. However, even under that lighter burden, Claimant did not prove that the City was the statutory employer. Absent the actual contract, there was no proof to demonstrate the City’s relationship to Employer or the project undertaken. Further, no evidence was presented that City employees were on-site or if the City was the contractor or the owner of the buildings to be demolished.

Even though the City did not appear at any hearings, Claimant was not prevented from requesting discovery of any relevant evidence to meet his burden of proof. Finally, the Court found that the Board had applied the correct standard of proof. Even if Claimant’s testimony was determined to be credible, there was no substantial evidence to support the legal conclusion that the City was his statutory employer under section 302(b) of the Act.

Taylor v. WCAB
(Greyhound, Inc.),
2182 C.D. 2005 (Pa. Cmwlth. 2006)

Employer was not required to pay benefits to claimant alleged disabled by post-traumatic stress disorder aggravated by World Trade Center attacks.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s claim petition. Claimant alleged that he suffered from post-traumatic stress disorder (PTSD) after observing a plane crash into the World Trade Center while driving a bus for Employer. After the crash, Claimant was housed at a dormitory in New York for three days until he was instructed by Employer to return to New Jersey to pick up passengers. Claimant drove to Philadelphia, parked his bus and told his supervisor that he could not drive. Claimant testified that after the attack, he continued to have flashbacks to his time in the military in Vietnam. Claimant had previously been hospitalized with PTSD in 1998.

Claimant’s medical expert testified that Claimant suffered from PTSD with psychotic episodes wherein he flashed back to Vietnam and the Trade Center attacks. Employer’s medical expert testified that Claimant’s flashbacks were no worse than the flashbacks he had suffered before the attack and prompted more by his alcohol abuse than the September 11^th attacks. The WCJ found Employer’s expert to be more credible and ruled that Claimant failed to establish any nexus between the Trade Center attack and his job. The Board affirmed these findings.

On review, the Court analyzed the case in relation to section 301(c)(1) of the Act. Based on Claimant’s testimony, the Court found that he was not in furtherance of his employment at the time of the attack, since he had discharged his passengers and parked his bus. Nor were the injuries caused by any condition present on Employer’s premises, since the attack occurred a distance away from where the bus had been parked. Accordingly, the dismissal was affirmed.

Kennelty v. WCAB
(Schwan’s Home Service, Inc.)
2357 C.D. 2005 (Pa. Cmwlth. 2006)

Claimant was entitled to benefits for psychic injury as a result of a series of robberies on his job delivering food.

Commonwealth Court reversed the decisions of the WCJ and the Board, which denied Claimant’s claim petition. Claimant was robbed in the course of his employment as a driver for Employer. Claimant never returned to employment after the robbery. Claimant alleged that he suffered depression, anxiety and post-traumatic stress syndrome. Claimant had been involved in five or six robbery incidents during the course of working for Employer. The last incident required Claimant to be hospitalized for three weeks. Six months after the last robbery incident, Claimant was recalled to work for a previous employer.

At hearing, Employer presented testimony that company policy instructed employees not to fight back when robbed. While the WCJ found Claimant’s testimony credible, he ruled that Claimant had failed to establish that the stress he suffered was due to abnormal work conditions. The WCJ also discounted the medical testimony, as it was not based on accurate medical history. The Board affirmed on the basis of the medical testimony, not reaching the question as to whether Claimant had been subjected to an abnormal working condition.

On review, the Court found the medical evidence was sufficient. Even though there may have been inaccuracies in the medical history, the medical opinion was not rendered incompetent unless it was solely based on inaccurate information. The Court found that competent evidence did exist to support Claimant’s claim. With regard to the issue of abnormal working conditions, the Court recognized that certain jobs were inherently more dangerous than others. Unlike police or correctional facility work, the Court was unwilling to recognize that food delivery was inherently dangerous, and found that Claimant was exposed to legally sufficient abnormal working conditions. Since competent medical evidence supported Claimant’s injury and his work environment was dangerous, the Court remanded the matter for the entry of an award.

Verizon Pennsylvania, Inc.
v. WCAB (Alston),
1804 C.D. 2005 (Pa. Cmwlth. 2006)

Injury suffered during fall down stairs in Claimant’s home was compensible, when Claimant was conducting a business phone call and was returning to her Employer-approved home office when fall occurred.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Claimant’s claim petition and ordered payment of disfigurement benefits. Claimant fell down her basement steps at home, while she was responding to a business phone call that required her to go down to her home office. Claimant was out of work for a year, during which time she received benefits. Claimant underwent neck surgery and the scars from that surgery were the basis for her disfigurement claim. The scars were visible at the distance of eight feet. Employer contended that the injury was not suffered in the course of Claimant’s employment. The WCJ dismissed this argument and awarded Claimant an 85-week benefit award. On appeal, Employer argued that Claimant was not injured during the course of her employment because she left her home office to go to her kitchen to get something to drink during the course of the business phone call.

Absent any specific precedent on the injury of at-home employees, the Court looked to workers' compensation law generally. The Court held that Claimant was working in an Employer-approved secondary work premises and was engaged in furthering the business of her Employer because, at the time of her injury, she was speaking with her supervisor on the phone and going down the stairs in order to address the work matter that her supervisor had called to discuss with her. Although the reason for Claimant’s walk down the stairs was due to the fact that she retrieved a drink from her kitchen, the Court could not conclude that she had “abandoned” her employment for liability purposes. With regard to the amount of the award, the Court determined that there was substantial evidence to support the 85-week figure, as it was within the standard range of awards for the type of disfigurement suffered by Claimant.

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