January 5, 2007

Digest of
Appellate Decisions
December 2006

City of Philadelphia v. WCAB (Hunter), 1949 C.D. 2005 (Pa. Cmwlth. 2006)

Helvetia Coal Company and General Recovery, Inc. (formerly Cantlon Associates, Inc.) v. WCAB (Learn), 592 C.D. 2006 (Pa. Cmwlth. 2006)

Allegheny Ludlum Corporation v. WCAB (Hines), 1022 C.D. 2006 (Pa. Cmwlth. 2006)

Brookhaven Baptist Church v. WCAB (Halvorson), 35 MAP 2005 (Pa. Sup. Ct. 2006)

Pitt Ohio Express v. WCAB (Wolff), 54 WAP 2005 (Pa. Sup. Ct. 2006)

City of Philadelphia v. WCAB (Hunter),
1949 C.D. 2005 (Pa. Cmwlth. 2006)

Even though Employer did not violate the Act by unilaterally stopping Claimant’s benefits, penalties could still be awarded when Employer did not reinstate benefits, as wrongfully order by the Board.

Commonwealth Court reversed that part of the Board’s decision that held that Claimant’s disability pension benefits were not paid in place of workers’ compensation. The Board had affirmed the order of the WCJ, which directed the resumption of disability benefits after Claimant began receiving a service-connected disability pension. Claimant suffered his injury in 1994 while working as a police officer. Claimant worked thereafter in various light-duty positions, without any loss of earnings until 1995 when he retired due to the injury and began receiving regular pension benefits, as well as total disability benefits under the Act. Claimant then converted his regular pension to a service-connected disability pension, which increased his total income. From this sum, the parties agreed that previous workers’ compensation benefits should be deducted. The deductions continued for three years, when Employer unilaterally ceased paying compensation benefits and paid only the pension benefit, less the offset amount.

Claimant filed the instant petition in 1998, requesting the imposition of a penalty and attorney’s fees due to Employer’s unilateral action. The WCJ initially denied the petition, but the Board reversed and remanded, noting that Employer did not file a supplemental agreement or notification of termination prior to doing so. The WCJ then found that Employer had failed to reinstate benefits as ordered by the Board, and assessed a 30% penalty against Employer. Employer appealed again and the Board affirmed. On appeal, Employer contended that the Board erred in failing to recognize the disability pension benefit as payment in lieu of workers’ compensation benefits; therefore the cessation of benefits did not violate the Act so as to justify the assessment of the penalty. Further, Employer argued, Claimant did not suffer any economic loss, since Employer was entitled to reduce the pension by the amount of the workers compensation benefits.

The Court agreed that the Board erred in its initial finding that the disability pension benefits were not paid in lieu of workers’ compensation. Testimony in this case, and previous cases with Employer explained that the disability pension was paid because the injury was work-related. Deducting workers’ compensation was appropriate and would be otherwise double dipping by Claimant. However, awarding penalties was not necessarily error by the WCJ. Employer was ordered to reinstate benefits in 2002, and, at the time of hearing in 2003, had yet to pay the benefits. Regardless of the lack of economic loss by Claimant, penalties had been assessed to compel compliance with the Act. In light of the reversal of the decision on the merits, the Court remanded the matter to see if adjustment of the penalty was appropriate.

Helvetia Coal Company and General Recovery, Inc. (formerly Cantlon Associates, Inc.) v. WCAB (Learn),
592 C.D. 2006 (Pa. Cmwlth. 2006)

Discrepancies in an expert’s testimony went to the weight of the evidence, not its competency; WCJ was free to accept some of an expert’s testimony and reject other parts.

Commonwealth Court affirmed the decision of the WCJ and the Board, which granted Claimant’s claim petition for his permanent hearing loss. Claimant worked for Employer in part as a supervisor evaluating noise in problem areas of a mine. Although hearing protection was mandatory towards the end of his term of employment, Claimant could not always use it and perform his job duties. At hearing, Claimant presented expert medical testimony that indicated that he suffered from a binaural hearing loss of over 20%. Employer’s expert testified to a greater hearing loss, but blamed non-work-related noise, aging, and noise exposure with other employers as a cause. The WCJ accepted Employer’s expert’s testimony to the extent that Claimant’s loss was determined to be over 34%, but found that the testimony supported a finding that the hearing loss was work-related. The Board remanded the matter to clarify several inconsistencies. The WCJ clarified the factual findings and again rendered the same decision.

On appeal, Employer argued that it was error for the WCJ to accept Employer’s expert’s testimony as to the percentage of Claimant’s hearing loss, and reject the remainder of the testimony as to causation. The Court found that it was within the WCJ’s discretion to accept part of one expert’s testimony and reject the other. Further, the WCJ’s finding that Claimant’s testimony was more credible as to his condition constituted substantial competent evidence. Additionally, the issue of whether Claimant was exposed to long-term hazardous occupational noise was an affirmative defense to the claim. All Claimant was required to do to meet his burden was to establish that he had been exposed to occupational noise while working for Employer during the three years preceding the claim. Employer presented no evidence to establish that Claimant was not subject to long-term exposure to hazardous occupational noise. Any discrepancies in the experts’ testimony went to the weight of such testimony, not competency. The Court found that the testimony accepted by the WCJ supported the findings, and affirmed the decision.

Allegheny Ludlum Corporation
v. WCAB (Hines),
1022 C.D. 2006 (Pa. Cmwlth. 2006)

Employer was liable for death of employee killed by drunk driver while employee was walking on Employer’s sidewalk from Employer’s parking lot in order to report for work.

Commonwealth Court affirmed the decisions of the WCJ and Board, which granted Claimant’s fatal claim benefits for the work-related death of her husband. Decedent had been killed by a drunk driver while walking on a public sidewalk towards the plant gate to report to his shift. Decedent had arrived 30 minutes before his shift, parked in Employer’s parking lot and began walking to the gate near the time clock at which he was required to punch in. The driver was convicted of a number of crimes that caused decedent’s death. At hearing, fellow employees testified that Employer had instructed the company’s employees to walk along the sidewalk where decedent had been killed in order to enter the plant and begin work. Employer’s witness testified that employees could enter the plant at a variety of different gates, but admitted that Decedent could not enter the gate closest to the parking lot where he was required to park. The WCJ concluded that Decedent was furthering Employer’s business at the time of his death, and granted the petition, the Board affirmed the findings. Employer argued that the decision was wrong based on the facts, and based on the inability to hold Employer liable for the criminal actions of a third party. The Court rejected application of the cases cited by Employer because they did not deal with the question of whether an employer’s business was being furthered at the time of injury. Herein, Decedent had arrived at work 20 to 25 minutes prior to the beginning of his shift and was moving towards his work station along the only route authorized by Employer. The Board did not err in determining that Decedent was furthering the business interests of Employer at the time of his death. Secondly, the Court dismissed Employer’s public policy argument. The Court noted that the Act contained a “personal animus” exception from liability, but that Employer had neither alleged nor proven such an exception. Accordingly, the decision was affirmed.

Brookhaven Baptist Church
v. WCAB (Halvorson),
35 MAP 2005 (Pa. Sup. Ct. 2006)

Decedent injured while trimming Church hedges was not an employee, since he had only been hired to cut the Church’s lawn.

The Pennsylvania Supreme Court reversed the decisions of the WCJ, Board and Commonwealth Court, which determined that Decedent had been an employee of Employer at the time of his death. Decedent and his wife were members of Employer-church, and in 1989, decedent was paid by Employer to cut the grass on a weekly basis. Employer supplied the mower and gas, and Decedent determined when the grass needed to be cut. Decedent then became a member of Employer’s Board of Trustees, which obligated him to perform other maintenance duties for Employer without pay. Other members of the Board also performed such maintenance duties without pay. On the day of injury, Decedent went to the church to cut grass and also trimmed the surrounding hedges. Upon setting fire to the clippings, Decedent was burned and died a month later as a result of his injuries. Claimant-widow filed the instant claim petition a few months later. The WCJ found that trimming the hedges was “incidental and necessary for Decedent to perform in order to accomplish his task of grass cutting.” The fatal claim petition was granted and the Board and Commonwealth Court upheld this decision. On appeal, while the Court agreed that Decedent was an employee of Employer for the purposes of the Act when he was cutting the grass, the Court determined that Decedent was not cutting the grass at the time of injury. Although the WCJ found trimming the bushes incidental to the task of grass cutting, the Court disagreed, noting that Decedent had never been paid for any other gardening work by the Church. In the past, other trustees had taken the responsibility for maintaining the grounds with the exception of operating the lawn mower. Therefore, the Court held that the injury to Decedent occurred when he was performing maintenance chores as a trustee of the Church, not as an employee. The decisions below were reversed. Chief Justice Cappy, Justices Baer and Baldwin joined this opinion. Justice Eakin filed a concurring opinion to which Justices Castille and Saylor joined which reasoned that Decedent was an independent contractor.

Pitt Ohio Express v.
WCAB (Wolff),
54 WAP 2005 (Pa. Sup. Ct. 2006)

Employer was not required to show continued modified job availability after period of total disability when Claimant previously rejected a modified position in bad faith.

The Pennsylvania Supreme Court affirmed the decision of the Commonwealth Court, which had reversed the Board and reinstated the WCJ’s decision to suspend Claimant’s benefits. Claimant had originally been injured in 1996. His compensation was suspended in 1997 when a WCJ concluded that Claimant failed to pursue a modified position offered by Employer. Benefits were reinstated by agreement in 2000 when Claimant underwent surgery related to the injury. Employer filed the instant petition to suspend in 2001 when Claimant again failed to take a modified position. After Claimant admitted that he was physically capable of performing the position, the WCJ suspended benefits. The Board reversed, finding that Employer failed to show that the position was still available. Commonwealth Court reversed this decision, holding that Employer did not have to prove job availability when the disability did not continue and Claimant was able to perform the modified position he previously rejected in bad faith. The Court distinguished precedent offered by Claimant that would require Employer to demonstrate that a suitable position was available for Claimant. The Court reasoned that this would reward Claimant for his earlier bad faith and place a burden on Employer to provide Claimant with another job at a time of his choosing. Accordingly, the Court held that an Employer would not be forced to prove job availability following a period of total disability after an employee made a bad faith rejection of an available modified position.

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