August 4, 2006

Digest of
Appellate Decisions
July 2006

McGaffin v. WCAB
(Manatron, Inc.),
2168 C.D. 2005 (Pa. Cmwlth. 2006)

Failure to raise a previous impairment rating of 26% in defending against Employer’s petition to terminate benefits constituted waiver of the issue on appeal before Commonwealth Court

Commonwealth Court affirmed the decisions of the WCJ and Board, which dismissed Claimant’s petition for review. Claimant was injured in 1999 and received benefits for two years before Employer requested an IME. The doctor determined that Claimant had an impairment rating of 26% of his whole person. Employer later filed a petition to terminate benefits, citing its expert’s opinion that Claimant had fully recovered from his injuries. At hearing, Claimant presented the testimony of his medical expert, but at no time raised the issue of the impairment rating (IRE). In fact, Employer offered the evaluation into evidence. The WCJ found that Employer had met its burden of proof in showing that Claimant had recovered from his work injury. The IRE was not discussed in the decision, as it had not been raised. Claimant did not mention the IRE in his notice of appeal to the Board but, in argument, raised the issue of whether the impairment rating precluded the WCJ from granting the termination petition. The Board did not address this issue when it affirmed the WCJ’s opinion.

In the instant appeal, Claimant argued that the IRE established that Claimant’s permanent impairment caused by his workplace injuries barred termination. Prior to considering the merits of Claimant’s argument, the Court examined whether the issue had been properly preserved for review. The Court reviewed appellate rules 1551 and 2117(c) and determined that it could only hear questions that been raised in the lower tribunal. The Board’s own procedural rules required a party to raise an issue with specificity in the appeal documents before the Board, or waive that particular issue. While Claimant did raise several issues in his appeal before the Board, this specific issue had not been mentioned. Since Claimant had not properly preserved the issue for consideration by the Court, the decisions were affirmed. Judge Smith-Ribner dissented, believing that the matter should be remanded for hearing since Employer failed to argue waiver of the IRE issue.

Pries v. WCAB
(Verizon Pennsylvania),
1870 C.D. 2005 (Pa. Cmwlth. 2006)

Claimant could continue to receive benefits after retirement if he could prove that his injury forced him from not only his pre-injury job, but the labor market as a whole.

Commonwealth Court affirmed the decisions of the Board, which suspended Claimant’s benefits on account of his retirement. Claimant had been injured in 1989 and received benefits. Claimant again received benefits in 2001 when his injury recurred. Claimant returned to work for one day in order to retire and receive a retirement package offered by Employer. At that time, Claimant signed a letter voluntarily withdrawing from employment. Employer then filed the instant petition to modify based on Claimant’s retirement. The WCJ found that Claimant was forced into retirement since he could no longer perform his original duties. The decision was appealed to the Board and in the interim, the Weis decision was handed down, ruling that a Claimant must establish that not only was he forced from his pre-injury job, but was not able to find work in the entire labor market on account of his injury. The Board applied this decision and found that expert testimony at the WCJ hearing indicated that Claimant was able to perform light duty work. The Court held that the facts in Weis and the facts herein were on-point. Claimant, by his testimony and the evidence he presented, had failed to meet his burden in showing that there were no jobs available for him in the entire labor market. Accordingly, the Board’s decision was affirmed.

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