December 5, 2006

Digest of
Appellate Decisions
November 2006

City of Scranton v.
WCAB (Roche),
1243 C.D. 2006 (Pa. Cmwlth. 2006)

Claimant’s petition for hearing loss benefits due to exposure to occupational noise was time-barred, since he filed it more that three years after his last date of exposure.

Commonwealth Court reversed the decision of the Board, which affirmed the WCJ’s decision to award Claimant hearing loss benefits. Claimant was employed with Employer’s Police Department from 1957 to 1992. Claimant alleged that he suffered a hearing loss during that time, which he only discovered in 2002. Claimant argued that his exposure to gunfire and a nearby fire bell during his time of employment caused the impairment. While Claimant began having hearing problems in 1985, he was not aware that they were work related until 2002 when he was diagnosed. The WCJ accepted the testimony of Claimant’s medical expert who indicated that testing showed that exposure to unacceptable noise levels caused Claimant’s hearing loss.

IInitially, the Board remanded for the WCJ to respond to the Employer’s argument that Claimant’s petition was time-barred. The WCJ found that the petition was not time-barred, because Claimant gave Employer timely notice of the hearing loss upon its discovery. The Board affirmed this decision and Employer filed this appeal, again arguing timeliness.

IIn reversing these decisions, the Court held that section 306(c)(8)(viii) of the Act, which required filing of a petition within three years after the date of last exposure, controlled the case. The Court distinguished the case relied on by the Board by noting that it dealt with trauma arising from a single event rather than occupational hearing loss. With regard to hearing loss resulting from occupational exposure, the Court had consistently held since the enactment of Section 306 that the discovery rule was no longer applicable to those types of claims. Therefore, since Claimant did not file his petition until ten years after his last exposure, his claim was time-barred and the decision of the Board was reversed.

Harburg Medical Sales Co. v. Bureau of Workers’ Compensation (Employers Mutual Casualty Co.),
1334 C.D. 2006 (Pa. Cmwlth. 2006)

Provider’s fee review petition was premature, when it could not prove that Insurer’s Utilization Request, which had to be resolved first, had been untimely filed.

Commonwealth Court affirmed the decision of the Bureau Fee Review Hearing Officer, which denied Provider’s fee review application. Claimant’s doctor diagnosed her with chronic lower back pain due to displaced discs and prescribed a Tempur-Pedic mattress. Provider supplied Claimant with the mattress, foundation and frame. Provider then billed Insurer for the bed in the amount of $2,500.00. Insurer filed a Utilization Request with the Bureau, seeking to review the necessity of the bed. The URO determined that the mattress was unnecessary. Claimant filed a petition for review of this determination. Provider filed an application with the Bureau disputing the timeliness of Insurer’s payment for the bed and prevailed on its application. The Insurer appealed, arguing that the application was premature because Insurer’s UR request was pending. The Hearing Officer agreed, and dismissed the petition. Provider took this appeal. Although the Court agreed that Provider had a solid argument, in that Insurer did not file its UR request in a timely fashion (30 days after receipt of the bill for the bed), the argument failed when Provider failed to establish that it mailed the bill at issue on the date that it claimed. Therefore, the Court relied on the Hearing Officer’s finding that Insurer did not receive the bill until a month after the claimed date. Accordingly, Provider’s application was deemed to be premature.

The Pennsylvania State University/The PMA Insurance Group v. WCAB (Hensal),
1448 C.D. 2005 (Pa. Cmwlth. 2006)

Expert actuarial testimony was sufficient to support Employer’s burden of proof in requesting offset of benefits on account of Employer’s contribution to Claimant’s defined benefit pension plan.

Sitting en banc, Commonwealth Court vacated the decisions of the Board and the WCJ, which did not allow Employer to offset pension contributions against workers’ compensation benefits. Claimant was injured in February 2002 and began receiving benefits. Eight months later, Claimant was granted a disability pension. In 2004, Employer filed a petition to modify, alleging entitlement to an offset against its obligation due to Claimant’s receipt of a disability pension. Employer presented the Director of Benefits of the pension plan and an actuary. The WCJ ruled that Employer had failed to establish its contributions to Claimant’s pension. While the WCJ acknowledged Employer’s evidence might have been valid, it was concluded that the law required actual contributions be proven before offset is permitted. The Board affirmed the decision, as did the Court initially.

The Court granted Employer’s petition for reconsideration and the matter was heard en banc. The Court noted that Claimant’s plan was a defined benefit plan, and that the amount of Claimant’s benefit was not based on past contributions of either employer or employee. The director of the plan testified that the extent to which an employer funded a particular employee’s pension could only be determined by an actuarial formula. While Employer did not make identifiable contributions to the fund solely on Claimant’s behalf, Employer’s past and future contributions to the plan provided the fund from which Claimant would receive his lifetime benefit. The Court decided that the Act did not require proof of actual pension contributions in order to allow an offset. Employer was allowed to prove the extent to which it funded the pension at issue. The Court held that expert actuarial testimony was legally sufficient to establish the extent to which Employer funded Claimant’s defined benefit pension for the purposes of offset. The Court therefore remanded the matter back to the WCJ to make credibility determinations on Employer’s expert evidence. If credited, the Court held that it was sufficient to meet Employer’s burden of proof. Judges Colins, Smith-Ribner and Friedman dissented, finding the expert evidence to be too speculative.

Department of Public Welfare/Western Center
v. WCAB (Cato),
2521 C.D. 2005 (Pa. Cmwlth. 2006)

Expert actuarial testimony was sufficient to meet Employer’s burden of proof to establish an offset against benefits based on Employer’s contributions to Claimant’s defined benefit plan pension.

IIn a companion to the Penn State case, Commonwealth Court vacated the decision of the WCJ, which granted Claimant’s petition to review compensation after Employer issued a notice of compensation offset on account of Employer’s contribution to Claimant’s defined benefit plan pension. The WCJ had denied the petition, after hearing the testimony of the pension plan director and actuary. The Board reversed the decision, and found as a matter of law that sufficient evidence existed to establish Employer’s funding of Claimant’s disability pension. The Court relied in toto on the decision issued in Penn State, which held that expert actuarial testimony was legally sufficient to establish the extent to which Employer funded Claimant’s defined benefit pension. Since the WCJ had determined that the testimony of the directory and actuary were credible, the Court held that Employer was entitled to an offset. The decision was therefore reversed.

Gazzola v. WCAB
(Ikon Office Solutions),
1138 C.D. 2006 (Pa. Cmwlth. 2006)

WCJ had jurisdiction to hear evidence and determine whether a URO adequately pursued collection of Claimant’s medical records, when URO dismissed review petition due to absence of requested medical records.

Commonwealth Court reversed the decisions of the Board and the WCJ, which dismissed Claimant’s petition for review of utilization review determination. Claimant sustained his injury in 1999 and in 2004 his doctor prescribed Oxycontin. Employer sought review and the URO issued a determination finding the treatment unreasonable, since the doctor had failed to provide the requested medical records. The WCJ ruled that he lacked jurisdiction to hear the review petition, since the medical records had not been provided. The Board agreed with this decision. On appeal, Claimant argued that the WCJ erred in dismissing the petition for lack of jurisdiction without a hearing to determine whether the requested records had been provided or whether the provider had a reasonable excuse for the failure to submit the records. The Court distinguished this case from the Geisler case relied upon below. Geisler turned on the determination by the judge on the merits of the claimant’s treatment. Instantly, the issue was whether the URO adequately pursued collection of Claimant’s medical records. Determining whether the provider complied was not a decision on the merits, and was within the purview of the WCJ. Accordingly, the order was vacated and the matter was remanded for a determination of Claimant’s review petition.

Cohen v. WCAB
(City of Philadelphia),
43 EAP 2005 (Pa. Supreme Ct. 2006)

Civil service commission determination of Claimant’s lack of disability was not binding on WCJ.

The Pennsylvania Supreme Court reversed the decision of the Commonwealth Court and the Board, and reinstated the WCJ’s decision to grant Claimant’s reinstatement petition. Claimant worked as a Philadelphia police officer and was injured on duty in 2000, when he was struck by a car. Claimant received his full pay for four months, since his status was determined to be injured on duty. Afterwards, Claimant was returned to limited-duty status and the City issued a notice of suspension for purposes of the workers’ compensation scheme. Later that year, Claimant underwent several medical evaluations and Employer determined that he was able to return to full duty. Claimant returned to full duty, but contended that he was unable to do so because of pain associated with his injuries. Claimant filed an appeal with the Philadelphia Civil Service Commission and also filed to reinstate workers’ compensation benefits. The Commission denied the appeal, based on the medical evidence. This decision preceded that of the WCJ by 18 months.

The WCJ acknowledged the Commission decision, but did not feel bound by it because Employer initially proceeded under the Act. The WCJ found that it would be contrary to public policy to now allow Employer to circumvent the Act. On the merits, the WCJ accepted Claimant’s testimony as credible and ordered reinstatement of benefits. Employer filed an appeal with the Board, arguing that the Commission decision precluded relitigation of the case before the WCJ. Both the Board and Commonwealth Court agreed and reversed the reinstatement.

On appeal, Claimant argued that the City civil service regulations were not coextensive with the Act and had the chief goal of assisting the City in managing its employees, not assisting workers injured on the job. While the Court agreed with some of Employer’s argument, the chief difference between the civil service regulations and the Act was that Employer’s net risk under the regulations was substantially narrower than it was under the Act. Particularly with regard to lifetime benefits, the net amounts in controversy were far more substantial under the Act. Further, the Act set forth extensive procedures for resolving various disputes concerning benefits, while the civil service regulations were substantially more informal. The Court held that due to the special character of the workers’ compensation system, it was preferable to permit the determination of disability for purposes of workers’ compensation benefits to be made within that scheme, instead of by a local civil service commission.

Finally, the Court declined to recognize a scheme that afforded special benefits to injured police officers as foreclosing their access to review in the workers’ compensation system on the question of disability. Accordingly, the matter was reversed and remanded to the Board for consideration of any outstanding issues raised by Employer or reinstatement of the award, if none existed.

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