September 5, 2006

Digest of
Appellate Decisions
August 2006

Huddy v. WCAB
(U.S. Air),
1031 C.D. 2005 (Pa. Cmwlth. 2006)

Claimant sustained his burden in showing that depression suffered in 2001 was related to chronic pain suffered from physical injury in 1993; WCJ erred by making Employer liable for only fifty per cent of treatment costs rather than entire cost.

Commonwealth Court reversed the decision of the WCAB, which reversed the decision of the WCJ granting Claimant’s review petition and ordering Employer to pay half of Claimant’s ongoing psychiatric treatment. Claimant strained his back while working in 1993 and began receiving benefits. In 2001, Claimant filed a review petition seeking to amend the NCP to include depression and anxiety. Claimant’s expert testified that Claimant had developed major depressive disorder due to chronic pain syndrome resulting from the work injury. The expert further testified that Claimant was subject to certain stressors in his day-to-day life that contributed to depression, as well as a familial predisposition to the condition. Employer’s expert testified that Claimant had recovered from his work-related mental injury by 1996 and his current difficulties were connected to non-work-related conditions.

The WCJ accepted the testimony of the experts in part: both Claimant’s life situation and his chronic pain contributed to his current mental condition. As a result, the WCJ allowed amendment of the NCP in include depression and anxiety, but made Employer liable for only fifty per cent of Claimant’s psychiatric treatment. The WCAB reversed, finding that Claimant was unable to sustain his burden of proving that the 1993 injury was a substantial contributing factor in his current mental injury. The Court disagreed with this ruling, finding that both experts agreed that prior to the injury, Claimant had no pre-existing history of depression or personality disorder. Both experts also agreed that Claimant’s depression was attributable to the chronic pain resulting from his injury. Further, the Court held that the WCJ had erred in only hold Employer 50% liable for Claimant’s psychiatric treatment. Once Claimant demonstrated that he had suffered an injury, Employer was liable to compensate him for that injury. The Act did not contemplate an apportionment scheme. Accordingly, the Board’s decision was reversed and the WCJ’s decision was reinstated with modification. Judge Leadbetter dissented from the finding that the Board’s decision that Claimant had failed to meet his burden of proof was improper.

Trimmer v. WCAB
(Monaghan Township),
889 A.2d 141 (Pa. Cmwlth. 2005)

Commonwealth Court improperly substituted its determination of the facts and credibility for the proper assessment of the WCJ.

The Pennsylvania Supreme Court, in a single-paragraph decision, reversed the decision of the Commonwealth Court, and reinstated the decision of the WCJ, which granted Employer’s petition to modify Claimant’s benefits. The Commonwealth Court decision was reported in the January 2006 VDC Briefs. The matter was twice remanded in a battle between Commonwealth Court and two WCJ’s over whether Claimant had the ability to return to work as a supervisor in his own automobile repair shop. Claimant had been injured while serving as a volunteer firefighter. Both WCJs found that Employer’s medical expert testified credibly as to Claimant’s ability to work in the same manner as before the injury. Both times, the WCJ and the Board accepted this medical testimony and determined that Claimant’s earnings should be that of an unimpaired garage supervisor. Twice, Commonwealth Court held that the WCJ failed to calculate the average income for an impaired garage supervisor, as instructed by the Court. The Pennsylvania Supreme Court held that the Court impermissibly substituted its determination of the facts and credibility of the witnesses for the proper assessment of the WCJ. Accordingly, the determination of the WCJ was reinstated.

Hayduk v. WCAB
(Bemis Co., Inc.),
230 C.D. 2006 (Pa. Cmwlth. 2006)

Successor-employer was liable for Claimant’s hearing loss, even though loss may have occurred during prior employer’s tenure, since successor could not prove prior hearing loss by an OSHA-approved hearing test as required by the Act.

Commonwealth Court reversed that part of the Board’s decision that denied Claimant’s claim petition. Claimant worked at the same plant for 27 years, during which time the plant had several owners. Employer acquired the plant in 1993, Claimant retired in 1999. Two years after retirement, Claimant became aware that he suffered from hearing loss. Claimant was informed by his doctor that the hearing loss was work related as a result of long-term exposure to hazardous occupational noise. At hearing, Claimant presented the deposition of his shop steward to demonstrate that Employer had purchased the assets of the previous employer in full, not any of the pre-existing liabilities. Employer’s doctor indicated that Claimant’s hearing loss began prior to Employer’s acquisition of the company, and that the majority of the loss took place on the earlier company’s watch. The WCJ ordered Employer to pay benefits, as well as Claimant’s litigation costs. The WCJ found that the purchase agreement in 1993 only dealt with workers’ compensation claims that were incurred prior to the closing date of the sale. Claimant did not make his claim until eight years later.

On appeal, the Board agreed with Employer, and found that it was not a successor-in-interest to the previous owner. The Board reversed the award of litigation costs as well. The Court agreed with the Board and found Employer not to be a successor-in-interest, since it did not agree to assume liability for workers’ compensation payments; the sale was not an incorporation or merger, and Employer was not a continuation of the previous company. However, the Court agreed with Claimant that Employer failed to establish an occupation hearing loss attributable to the previous employer because the baseline audiogram was not shown to comply with OSHA standards, as required by the Act. Finally, inasmuch as Claimant had now prevailed on his petition, the Court agreed that he was entitled to litigation costs, as well as attorney’s fees, since Employer’s contest of the petition in the absence of the OSHA-approved test was not reasonable. Accordingly, the matter was affirmed in part and reversed in part.

Knechtel v. WCAB
(Marriott Corporation),
140 C.D. 2006 (Pa. Cmwlth. 2006)

Employee’s health care provider was permitted to participate in her psychiatric examination by Employer’s doctor, but that participation was limited to attendance and observation of the examination itself.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Employer’s petition to compel a physical exam of Claimant. Claimant received benefits for a 1995 knee injury. The NCP had been amended to include depression. Employer requested orthopedic and psychiatric exams in 2004. Claimant did not object to the physical examination, but cited complaints by former clients regarding the accuracy of the selected psychiatrist. Claimant’s attorney requested permission to accompany Claimant in order to make an audio recording. Employer filed a petition to compel the exam. Claimant then agreed, but requested permission to have her health care provider participate. This permission was granted, but the WCJ ruled that health care provider could not tape record the evaluation, question the evaluator, make comments or otherwise assist Claimant during the procedure. The WCJ permitted the taking of notes and brief recesses during the evaluation in order to confer with Claimant. Claimant appealed, arguing that section 314(b) allowed her health care provider to take an active part in the examination, which included objecting to any questions asked by Employer’s psychiatrist. The Board affirmed, analogizing the restrictions placed on witnesses to a physical examination to those to be placed on a psychiatric exam.

On appeal, Claimant argued that the plain meaning of the word “participate” should be used in determining the level of her health care provider’s involvement, since no particularized definition was contained in the Act. The Court held that the opportunity to attend and observe afforded a significant degree of participation. To allow participation to the extent that the examination becomes disrupted and adversarial would not yield the information regarding the employee’s condition that is contemplated by the Act. Accordingly, the decision was affirmed. Judge Friedman dissented, contending that the plain meaning of the word “participate” should control, and that the majority decision changed the word to mean attend and observe.

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