July 5, 2006

Digest of
Appellate Decisions
June 2006

Inservco Insurance Services
v. WCAB (Purifoey),
2163 C.D. 2005 (Pa. Cmwlth. 2006)

WCJ at termination hearing was not bound by finding of permanent injury in benefits hearing, since duration and extent of injury were always at issue in a compensation hearing, and no award of permanent benefits had been made at the first hearing.

Commonwealth Court reversed the Board’s order to deny Employer’s petition to terminate Claimant’s benefits. The WCJ had originally terminated the benefits. Claimant was injured in 1999 when his foot was crushed. Although Employer contested his petition for benefits, no appeal was filed after benefits were granted. Four years after the injury, Employer filed the instant petition, alleging that Claimant had fully recovered. At the benefits hearing, the WCJ had held that part of Claimant’s injury was permanent. At the termination hearing, the WCJ found the testimony of Employer’s medical expert (who had also testified at the first hearing) to be more persuasive, and found that Claimant had fully recovered from all his injuries. The Board reversed, finding that the expert’s testimony was less than positive as to Claimant’s complete recovery. Further, the WCJ erred when he failed to address the finding of permanent injury by the first WCJ.

On appeal, the Court found that the expert’s testimony at the termination hearing was not collaterally estopped by the findings of the benefits hearing. The Court agreed with the WCJ and ruled that the expert had accepted the underlying findings of work trauma and based his opinions of Claimant’s present condition with those findings in mind. The Court did not agree with the Board’s conclusion that the expert’s testimony was not unequivocal. While certain excerpts taken out of context may have given the impression that the expert was unsure, a review of the entire testimony shows that it was unequivocal. The expert testified repeatedly that Claimant was capable of returning to work without any further medical treatment. Finally, the WCJ was not bound by the finding of permanency at the benefits hearing because the duration and extent of an injury were always at issue in a compensation proceeding, especially when no finding of permanent compensation had been made. Accordingly, the matter was reversed and the order of the WCJ was reinstated. Judge McGinley dissented, finding that the expert’s testimony was equivocal as it related to Claimant’s recovery.

Romaine v. WCAB
(Bryn Mawr Chateau Nursing Home),
62EAP 2004 (Pa. 2006)

Claimant bore the burden of proving that her reinstatement petition was timely filed; date benefit check was received was controlling in determining timeliness of petition filed under section 413(a).

The Pennsylvania Supreme Court affirmed the decisions of the Commonwealth Court, the Board and the WCJ, which denied Claimant’s petition for reinstatement of benefits. Although the evidence was not clear as to when Claimant had last received benefits from Employer, the WCJ used the date of the last benefits check. Using this date, Claimant’s petition was untimely. The Board and the Court accepted these findings and rationale. The Supreme Court accepted the appeal solely to determine what constituted payment when the payments are made in the form of a check. The Court reviewed the long history of the ramifications of payment by check and the established rule that payment occurred upon the receipt of a check, with the condition that it be honored. The Court noted that the Commonwealth Court had not always been consistent in its interpretation of the rule. In holding that the date the check is received to be controlling, the Court rejected Claimant’s argument that the last date for which payment was made should be considered. The Court distinguished this date as relevant for actions under section 434, but not applicable to section 413(a), relating to reinstatement petitions. At the reinstatement hearing, Claimant failed to present evidence as to when she actually received the check. Since her petition was filed three years and two days after the date of last check, and Claimant had provided no evidence as to when she received the check, she did not overcome her burden of proof to show that she had timely filed her petition and the WCJ had properly dismissed it. Justices Castille, Baer and Baldwin joined in the decision; Chief Justice Cappy and Justice Eakin filed a concurring opinion; and Justice Saylor issued a dissent in which Chief Justice Cappy joined in part. Justice Saylor objected to the majority language that distinguished payments in section 434 versus section 413(a).

Craftex Mills, Inc. of PA
v. WCAB (Markowicz),
1758 C.D. 2005 (Pa. Cmwlth. 2006)

WCJ did not err in accepting medical expert’s testimony as to causation of Claimant’s illness because expert’s medical knowledge of the epidemiology of Claimant’s illness served to eliminate all other likely source of disease-causing spores.

Commonwealth Court affirmed the decision of the Board and the WCJ, which granted Claimant’s claim petition. One of the duties on Claimant’s job was to clean Employer’s air conditioning system. Claimant alleged that as a result of some of the substances in that system, he developed an allergy that impaired his pulmonary function and prevented the return to his pre-injury job. The WCJ found the testimony of Claimant’s medical expert credible and impressive. Employer presented no medical testimony, but called its Safety Coordinator, who stated that the air in the plant was chemically treated to prevent the growth of mold. The WCJ however did not find that Claimant had established the existence of an occupational disease, since he could not show that the incidence of his lung disease was substantially greater in his occupation that in the general population. On appeal, Employer argued that since there was an absence of a test showing the actual presence of disease-causing particles in the workplace, the decision was lacking in sufficient competent evidence. The Board ruled that the absence of the evidence went to credibility and weight, not competence. Before the Court, Employer contended that, in accepting the medical expert’s testimony as competent, Claimant’s burden of proof had been eased by providing him with a presumption similar to the one occupational disease claimants enjoyed under section 301(e) of the Act. The Court concluded that Claimant’s testimony was not competent to support the factual determination that he was exposed to spores at work, however, after reviewing his testimony, the Court concluded that the expert was clearly qualified to render an opinion as to the nature of Claimant’s illness. The Court found no reduced burden of proof, as the expert’s medical knowledge of the epidemiology of Claimant’s illness served to eliminate all other likely sources of the disease-causing spores. Accordingly, the Board did not err in find the medical evidence to be competent, and the decisions were affirmed.

Akers National Roll Co.
v. WCAB (Whaley),
2344 C.D. 2005 (Pa. Cmwlth. 2006)

When employee has concurrent employment and employment at the primary job predicated employment at the second job, proof of disability for the concurrent job by way of unequivocal medical evidence was not required.

Commonwealth Court affirmed the decision of the Board and the WCJ, which granted the petition to review compensation benefits filed by Claimant. Claimant sustained a back injury in 2002 and Employer began paying benefits. Over a year later, Claimant filed the instant petition, as well as a penalty petition, alleging that Employer had incorrectly calculated Claimant’s benefits. Claimant’s allegations were based on his concurrent employment as a unit griever with his union at the time of injury. Claimant was paid by the union for the time he lost from work for performing union functions. After the injury, Claimant continued to perform the union work, but he was not paid because he was not losing time from work. The WCJ found that Claimant had met his burden of showing that he was concurrently employed by Employer and the union. Further, since Claimant’s compensable disability caused his loss of wages from his concurrent employment with the union, Claimant did not have a burden of proving by medical evidence that he was physically disabled from performing his union duties. The WCJ went on to dismiss Claimant’s penalty petition.

On appeal, Employer argued that Claimant was not physically disabled from performing his union duties and had presented no medical proof to support his claim. The Court disagreed and found that the inclusion of Claimant’s concurrent employment reflected the economic reality of his earning experience. Additionally, the Court found that there was no case law to suggest that when an employee had concurrent employment and employment at the primary job predicated employment at the second job, that proof of disability for the concurrent job by way of unequivocal medical evidence was required. Employer had already conceded Claimant’s work injury and since such disability prohibited Claimant’s ability to perform his union job, the AWW adjustment was proper.

Dowhower v. WCAB
(Capco Contracting),
897 A.2d 1164 (Pa. 2006)

IRE requests can only be filed within 60 days after the expiration of the 104-week period that a claimant receives total disability benefits in order to be timely with entitlement to the automatic presumption of Section 306(a.2)(2).

In a per curiam order at 897 A.2d 1164 (Pa. 2006), the Supreme Court vacated and reversed the Commonwealth Court's decision in Dowhower v. WCAB (Capco Contracting), 826 A.2d 28 (Pa. Cmwlth. 2003). The Commonwealth Court had reversed the decision of the WCJ finding that an insurer had filed an untimely request for an impairment rating evaluation (IRE) pursuant to Section 306(a.2)(1) of the Act where the request was filed during the 104-week period that Claimant received total disability benefits, but within 60 days of the expiration of the 104-week period. In vacating and reversing the lower court's opinion, the Supreme Court relied on Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (2005) without discussion. Justice Saylor dissented, noting that Gardner did not address the specific issue of whether the IRE request could be made prior to the expiration of the 104-week period. Justice Newman joined in the dissent. Thus, IRE requests can only be filed within 60 days after the expiration of the 104-week period that a claimant receives total disability benefits in order to be timely with entitlement to the automatic presumption of Section 306(a.2)(2) regarding reduction to partial disability benefits if the impairment rating is below 50%. IRE requests after this 60-day period are permissible, but are not entitled to this automatic presumption.

Select Security, Inc.
v. WCAB (Kobrin),
1600 C.D. 2006 (Pa. Cmwlth. 2006)

WCJ properly calculated Claimant’s potential earnings at the lower end of the salaries suggested by vocational expert due to Claimant’s lack of experience in the proposed areas; award of litigation costs was vacated when WCJ failed to make finding regarding reasonableness of costs.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Employer’s petition to modify benefits, but reversed that part of the decision that allowed Claimant litigation costs. Claimant held concurrent employment with Employer and with an audio equipment sales company. After his injury, Claimant received benefits from Employer. Claimant returned to his secondary employment after three months. Three years later, Employer filed its modification petition after its medical expert reported that Claimant could return to work up to 60 hours per week with restrictions. Employer further alleged that work was available generally for Claimant, since Employer had gone out of business. Employer’s medical expert testified that no objective evidence existed to correlate with Claimant’s subjective complaints. Claimant’s medical experts testified that Claimant still suffered pain and was able only to work part time. The WCJ found Claimant’s allegations of pain credible and rejected the opinions of both experts as to the suggested numbers of hours Claimant was able to work. The WCJ found that Claimant was able to work a 40-hour week. The WCJ determined that Claimant’s earning capacity was $39,000.00 per year, or the average of the low end salary of the jobs discovered by Employer’s vocational expert. In accepting this AWW, Claimant was still entitled to the maximum weekly compensation. Further, Claimant was awarded litigation costs because he was successful in defending the modification petition. The Board affirmed the decision, finding that it was supported by competent evidence. Employer argued that the WCJ erred in failing to credit the vocational expert’s testimony that jobs with a larger salary were available to Claimant. The Court agreed that Claimant’s lack of experience in the suggested jobs specified by the vocational expert was sufficient reason to calculate Claimant’s AWW using the lower end of the possible salary ranges. The Court also found that it could not rule on the issue of litigation costs because the WCJ did not make any finding as to the reasonableness of the litigation costs. Accordingly, the award of litigation costs was vacated and the matter was remanded to the WCJ for determination as to the reasonableness of Claimant’s costs.

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