November 3, 2006

Digest of
Appellate Decisions
October 2006

Seekford v. WCAB (R.P.M. Erectors), 393 C.D. 2006 (Pa. Cmwlth. 2006)

Petition for specific loss injury was time-barred when Claimant’s benefits were commuted in 1996.

Commonwealth Court affirmed the decision of the Board, which reversed the decision of the WCJ, and denied Claimant’s petition for specific loss injury. Claimant was hurt in 1994 when he fell and suffered a lower back and thigh injury. Claimant underwent surgery and suffered nerve damage in his right arm as a result. Claimant never returned to work. Two years later, Claimant petitioned for commutation of his benefits. The parties stipulated as to Claimant’s permanent partial disability and the amount of compensation he was entitled to. Claimant received a check in 1996 and last medical expense paid on his behalf was made in 2000.

In 2002, Claimant filed the instant petition asserting the loss of the use of his right arm. Employer argued that the claim was time-barred since his initial benefits were commuted in 1996. The WCJ conducted a hearing, credited the testimony of Claimant and his medical expert over that of Employer’s medical expert, and found that the claim was not time-barred since medical benefits had been paid as recently as 2002. The Board reversed, finding that the proper starting point for determining the time limit was 1996, the date of the last payment of compensation.

On review, the Court rejected Claimant’s attempt to treat the back injury and the arm injury as separate and distinct incidents. Precedent clearly held that the second injury was to have been deemed caused by the original work injury. Further, the date of the incidence of the secondary injury was the date of surgery in 1994, when Claimant suffered the actual loss of use of his arm according to his testimony, not the date several years later when his doctor told him he could not be rehabilitated. Finally, the date of payment of the final medical treatment was not the appropriate date from which to toll the statute. Repeated appellate cases had determined that the statute of limitations begins to run from the date of payment of a commutation of benefits. Accordingly, the decision was affirmed.

J.P. Lamb Construction, Inc. and Zurich North America v. WCAB (Bureau of Workers’ Compensation), 923 C.D. 2006 (Pa. Cmwlth. 2006)

Reimbursement from the Supersedeas Fund was not barred where parties stipulated that Claimant was medically entitled to benefits, but Employer ultimately prevailed on legal argument that benefits were time-barred.

Commonwealth Court reversed the decision of the Board and the WCJ, which denied Employer’s application for Supersedeas Fund reimbursement. Employer was litigating an underlying petition to reinstate benefits from a 1992 injury. While the parties had reached agreement on several issues, Employer maintained that the petition was time-barred. The WCJ determined that the petition had been timely filed. Employer appealed and requested supersedeas, which was denied. Ultimately, Employer prevailed on the merits before the Court. Employer then filed the instant petition for reimbursement. The WCJ denied reimbursement, ruling that the original petition had been granted based on the stipulation of the parties, and that Employer had failed to present medical evidence to defend against Claimant’s petition to reinstate. The Board supported this decision.

On review, Employer argued that the case was not the typical stipulated case where the parties agreed that benefits were not payable and the Fund was being asked to reimburse monies based on an agreement to which it was not a party. Instantly, the parties agreed that benefits were payable, and the only item of contention was whether benefits were barred by the statute of limitations. Since the Court’s reversal of the Board on the issue of the statute of limitations constituted an adversarial determination that benefits were not payable, Employer was entitled to reimbursement from the Fund.

Schachter v. WCAB (SPS Technologies), 320 C.D. 2006 (Pa. Cmwlth. 2006)

Doctrine of res judicata could only preclude challenge to claimant’s current disability status if claimant’s “permanent” disability was clearly irreversible; IRE’S finding of six per cent impairment did not bar Employer from filing a termination petition.

Commonwealth Court affirmed the decision of the Board, which had reversed the WCJ’s decision to grant Claimant’s petition for attorney’s fees. Claimant was injured and received benefits in 2000. Three years later, Employer requested an IRE and the examiner determined that Claimant had a six per cent impairment of the total person. Employer filed a notice of change of status to reflect a change from total disability to partial disability. Employer also filed a petition to terminate benefits. The IRE examiner testified at hearing, as did Claimant. The WCJ found the testimony of Claimant and the deposition of his medical expert to be more credible and dismissed Employer’s termination petition. The WCJ also found Employer’s contest was unreasonable and awarded Claimant over $7,000 in attorney’s fees. Employer appealed the determination. The Board affirmed the decision on the merits, but reversed the award of fees, reasoning that Employer’s contest would have been deemed reasonable if the WCJ had found the IRE examiner’s testimony more credible.

On appeal, Claimant argued that since the IRE found a six per cent impairment, Employer was precluded from seeking termination. Claimant further argued that Employer’s notice to change Claimant’s disability status from total to partial constituted a judicial admission that Claimant’s condition was irreversible. After reviewing the relevant precedent, the Court held that the doctrine of res judicata could only preclude a challenge to a claimant’s current disability status if the claimant’s “permanent” disability is clearly irreversible. Further, such a holding would discourage an employer from availing itself of the IRE procedure, and is at odds with the IRE remedies. Finally, the Court agreed with the Board’s rationale that Employer’s contest was reasonable because of the genuinely disputed issue concerning the extent of Claimant’s recovery.

Hendricks v. WCAB (Phoenix Pipe & Tube), 237 C.D. 2006 (Pa. Cmwlth. 2006)

WCJ had the authority to hear fee dispute between original and successive counsel if fee petitions had been filed by both attorneys prior to a decision on the merits.

Commonwealth Court vacated that part of the Board’s decision that reversed the WCJ’s order awarding successive counsel attorney’s fees. Claimant was injured in 1992. In 1995, Employer filed a petition to terminate benefits, alleging that Claimant was fully recovered. Claimant hired counsel who successfully defended the petition. Claimant continued to receive benefits and his counsel received 20% attorneys’ fees. In 2001, Claimant terminated the services of the first attorney and hired second counsel. New counsel filed a petition for 15% counsel fees. The Board rejected this petition because previous counsel was already receiving fees for past work and the Board had no authority to discontinue payment and present counsel had not performed any work for Claimant.

Three years later, Claimant filed a petition for penalties for failure to pay medical bills through his second attorney. Hearing was continued for settlement discussions and second counsel filed a fee petition that was approved. When this occurred, Employer stopped making payments to the first attorney. That attorney filed a penalty petition that was consolidated for hearing with Claimant’s penalty petition. At hearing, Claimant’s petition was settled, second counsel was awarded fees, and the first attorney’s petition was dismissed due to lack of jurisdiction. Second counsel appealed, and the Board reversed the award to second counsel and reinstated the original award. The Court reviewed the divergent case law at length and noted that the Board was the appropriate forum for a fee dispute when the fee petition had been filed prior to discharge as had been done instantly. Further, the WCJ was charged with a duty to assess the reasonableness of a fee agreement under the Act. Since the WCJ did not believe that he had the authority to determine the fee dispute between the two attorneys, specifically, as to the nature and amount of work done by them, no evidence was taken on this issue. The Court remanded the matter back to the WCJ for factual inquiry and findings on this issue. Judge McCloskey concurred in the result.

Central Dauphin School District, and Old Republic Insurance Company c/o School Claims Services, LLC v. WCAB (Siler), 612 C.D. 206 (Pa. Cmwlth. 2006)

Release of relevant prior medical records fell within the meaning of “physical examination” under section 314 of the Act, and their release could be ordered by the WCJ.

Commonwealth Court reversed the decisions of the Board and the WCJ and ordered Claimant to release medical records in connection with Employer’s petition to compel a physical exam. Claimant was injured at work in 2002 after a slip and fall. After filing a claim petition, Claimant was granted benefits. Thereafter, Claimant attended one IME by a neurosurgeon and one by a psychiatrist. The psychiatrist advised Employer that she would not be able to issue a report unless she could review Claimant’s prior psychiatric records. Employer requested the records and Claimant refused. Employer filed the instant petition. The WCJ took no testimony, deeming the matter to be a legal issue only, and denied the petition. The Board affirmed, reasoning that Employer could have only requested the record during the litigation of the claim petition.

On appeal, Claimant argued that the confidentiality of the records was protected by statute. Further, since she had not sought compensation for her psychological problems, Claimant argued that the records were not relevant. The Court relied on past case law that allowed a physician to use diagnostic testing in order to complete a physical exam and render an opinion. Herein, the examining psychiatrist could not render a competent opinion without reviewing Claimant’s records of past treatment. Accordingly, the Court held that prior medical records fell within the meaning of “physical examination” for the purposes of section 314 of the Act, and the WCJ could order their release. The matter was remanded to the WCJ to determine whether the records in question were relevant before ordering their release.

Penske Truck Leasing v. WCAB (Brunkel), 87 C.D. 2006 (Pa. Cmwlth. 2006)

Employer was obligated to reimburse union health fund with interest.

Commonwealth Court affirmed the decision of the Board and WCJ, which ordered Employer to reimburse Claimant’s Union Health Fund over $230,000 for medical bills it paid on Claimant’s behalf. The WCJ further ordered that Employer pay ten percent interest as well as attorneys fees.

Claimant was injured in 2001 when he experienced a heart attack on the job. Employer denied the claim and Claimant filed his petition. The parties settled the matter before hearing. The WCJ approved the C&R, which called for a payment to Claimant and Employer’s payment of related medical expenses, including reimbursement of sums paid by third parties on Claimant’s behalf for such expenses. Two years later, Claimant filed the instant petition for reimbursement of medical expenses paid by his union benefit fund.

The WCJ found that Claimant had incurred a work-related injury and that the union was entitled to payment as a result of the subrogation agreement Claimant had entered into with the union as a condition of membership. The WCJ and the Board rejected the argument that the C&R precluded Claimant from making an additional medical benefits claim, since provisions in the agreement expressly allowed submission of bill paid by outside sources for payment by Employer. Further, the fact that another source initially paid the medical bills does not shield Employer from its legal obligation to pay medical bills related to a compensable injury. Even if the union’s payments were gratuitous, Employer’s legal obligation to make payment under the Act was unchanged. Finally, the Court decided that, while the union was entitled to a payment of interest on the medical costs, the WCJ had not properly calculated the amount. The Court remanded the matter to the WCJ to calculate interest from the date the relevant medical bills were presented for payment, not the date of injury, as the WCJ had originally ordered.

Ludwikowski v. WCAB (Dublin Paper Co.), 158 C.D. 2006 (Pa Cmwlth 2006)

Appeal filed with Bureau within 20 days did not meet the 20-day filing requirement, since it was not filed with the Board in Harrisburg.

Commonwealth Court vacated the Board’s order affirming the WCJ’s decision to grant Employer’s claim petition, finding that Claimant’s appeal with the Board was untimely filed. Claimant had been injured in 1998 and Employer began paying benefits. Employer filed the instant petition to modify in 1999 and the WCJ granted supersedeas in an interlocutory order in 2000. After further hearing, a final order was entered in 2004 granting the modification and reducing Claimant’s benefits. Claimant filed an appeal 20 days later with the Bureau in Philadelphia, rather than the Board’s address in Harrisburg. The Bureau forwarded the appeal to Harrisburg, where it was time-stamped as received nearly eight months later. The Board considered the merits and affirmed the appeal. On review, the Court found that Claimant was bound to file his appeal within 20 days with the Board. All instruction and documentation given to Claimant clearly outlined that appeals were to be filed with the Board in Harrisburg, not in any of the Bureau’s offices. Clearly, Claimant had not filed his appeal within the allowed time limit. Since timely appeal was a jurisdictional issue, the Board could not waive it, and the fact that Employer did not raise the issue before the Board did not prevent the Court from considering it on appeal. Accordingly, the decision was vacated and the matter was remanded to the Board with instructions to quash the appeal.

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