February 2, 2007

Digest of
Appellate Decisions
January 2007

Wood v. WCAB (County Care Private Nursing), 1272 C.D. 2005 Pa. Cmwlth. 2007)

Rag (Cyprus) Emerald Resource, L.P. v. WCAB (Hopton), 1 WAP 2005 Pa. Sup. Ct. 2007)

Ragno v. WCAB (City of Philadelphia), 924 C.D. 2006 (Pa. Cmwlth. 2007)

A-Jon Contractors. v. WCAB (Gregory DiMarzio (dec’d), Margaret DiMarzio), 1520 C.D. 2006 (Pa. Cmwlth. 2007)

Wood v. WCAB
(County Care Private Nursing),
1272 C.D. 2005 (Pa. Cmwlth. 2007)

Employer’s failure to present evidence was sufficient basis to award attorney’s fees for unreasonable contest.

Commonwealth Court, sitting en banc, reversed the decisions of the WCJ and Board, which granted Claimant’s reinstatement petition, but denied her request for attorney’s fees. The only issue on appeal is whether the Board erred in affirming the WCJ’s determination that Employer reasonably contested the petition.

Claimant suffered a back injury in 1998. The parties entered into an agreement for compensation for a permanent injury shortly thereafter. While Claimant did not return to work for Employer, she did find other part-time work two years later. Employer filed a petition to terminate. The WCJ credited the testimony of Claimant’s expert, who diagnosed Claimant as suffering from a herniated disc and chronic lumbar strain. The petition was denied, but the compensation was modified to reflect Claimant’s return to part-time work. Claimant discontinued this job in 2002 due to a hernia. Claimant found other work as a telemarketer, but was discharged due to poor performance. Employer filed a notification of modification based on her telemarketer earnings. Claimant then filed this petition for reinstatement, seeking total benefits and ongoing medical treatment.

At hearing, Claimant testified, presented the deposition testimony of her family doctor, and the report of her surgeon. Employer presented no testimony. The WCJ found the testimony to be credible and that Claimant’s total disability in 2003 was related to the 1998 injury. However, the WCJ ruled that Employer had a reasonable basis for the contest, since an issue existed as to whether the 2003 surgeries were related to the work injury due to Claimant’s failure to produce the testimony of her treating surgeon. The Board affirmed this reasoning. Claimant argued that because Employer presented no evidence, the contest was unreasonable as a matter of law. Employer countered that its contest was reasonable because it believed the WCJ would not find that the family doctor was qualified to render an opinion on questions connected with the surgeries, and the surgeon did not testify. Further, the amount of time between the initial injury and the filing of the instant petition made the contest reasonable.

The Court ruled that once Claimant met her burden that the work-related disability continued, the burden to prove reasonable contest was on Employer. Employer was required to show a conflict in evidence or that contrary inferences could be drawn from the evidence. By presenting no testimony, Employer failed to do this at hearing. Further, no negative inference was to be drawn from the fact that the treating physician testified rather than the treating surgeon. Failure to present any evidence was a basis to award attorney’s fees. Accordingly, the matter was remanded for such determination.

Rag (Cyprus) Emerald Resource, L.P.
v. WCAB (Hopton),
1 WAP 2005 (Pa. Sup. Ct. 2007)

Remarks of Claimant’s supervisor were more than normal, accepted crude joking in the work place, and were severe enough to support an award of benefits for aggravating Claimant’s pre-existing post-traumatic stress disorder injury.

The Pennsylvania Supreme Court reversed the decision of the Commonwealth Court and reinstated the decisions of the Board and the WCJ to grant Claimant’s petition for benefits due to the aggravation of his post-traumatic stress disorder (PTSD). Claimant alleged that his prior-existing PTSD was aggravated by harassing comments of a homosexual nature made by his mine foreman on three occasions. During hearings, Claimant testified that he had been in the military during the Vietnam War and had suffered due to the violence he witnessed during this period and the homosexual advances made by his commanding officer. Claimant and other witnesses’ testimony detailed the advances and comments made by the supervisor. Additionally, Claimant presented expert testimony from his treating physicians that supported the diagnosis of re-aggravated PTSD. A court appointed expert agreed with this diagnosis, but Employer’s expert did not.

The WCJ concluded that the statements attributed to the supervisor had been made and credited the testimony of Claimant’s experts. The WCJ then concluded as a matter of law that the comments constituted an abnormal working condition that was calculated to cause severe emotional distress to Claimant. The WCJ ruled that Claimant was entitled to benefits because he had established that he was disabled as a result of abnormal working conditions. The Board affirmed and pointed to the fact that the supervisor had been disciplined for the comments as support for the finding of abnormal working conditions. Commonwealth Court reversed, ruling that the facts did not support a finding of abnormal working conditions.

On appeal, Claimant argued that Commonwealth Court erred in re-weighing the evidence heard by the WCJ. The Court agreed, finding that Commonwealth Court erred by not limiting its review to determining whether the WCJ’s factual findings were supported by the record, and instead, focusing on a brief section of testimony not included in the findings to support its own conclusion. Having determined this, the Court went on to independently review the WCJ’s findings to determine whether they supported the granting of the petition. The behavior exhibited by the supervisor was beyond the accepted joking and crude behavior of the instant workplace. They were actionable under the collective bargaining agreement and arguably constituted criminal harassment. As such, the WCJ properly found that abnormal working conditions existed. Since the WCJ credited the Claimant’s medical testimony, Claimant had established a compensable injury. Finally, the Court rejected the Commonwealth Court’s decision that resulted in treating a worker with a pre-existing mental injury differently from a worker with a pre-existing physical injury in relation to proving a claim. The matter was remanded for reinstatement of the award.

Ragno v. WCAB (City of Philadelphia),
924 C.D. 2006 (Pa. Cmwlth. 2007)

Claimant could not petition for reinstatement of benefits once it had been determined in previous litigation that he had voluntarily retired from the workforce.

Commonwealth Court affirmed the decision of the Board, which dismissed Claimant’s petition for benefits. Claimant was a firefighter who suffered a back injury on the job in 1986. Claimant received benefits for 43 weeks and returned to work without a loss of earnings. Prior to returning to work, Claimant filed a petition for benefits arising from the back injury. The petition was treated as a petition to set aside final receipt and was granted in 1990. Employer filed to suspend compensation six years later, since Claimant did not take the job of dispatcher that had been offered to him. Claimant testified that he had not looked for work since 1988 and considered himself to be retired. Medical testimony indicated that Claimant could work a job as dispatcher without restriction. Further testimony was elicited from pension officials that indicated that working again in a civilian position would not ultimately jeopardize Claimant’s pension benefits.

The WCJ determined that Claimant had voluntarily removed himself from the workforce. The Board affirmed this decision and Claimant appealed, arguing that he was not actually available for employment because he had already reached the retirement age of 55. The Court affirmed as well, reasoning that since Claimant was already retirement age, he would not have lost a vested pension, and was therefore available for employment. In 2003, Claimant filed to reinstate his benefits because his injury caused decreased earning power. At hearing, Claimant presented the deposition testimony of his treating doctor, who testified that Claimant could no longer perform the dispatcher work because he was unable to stand or sit for extended periods of time. Employer’s medical expert testified otherwise. The WCJ granted the reinstatement petition and ordered payment of benefits and ten per cent interest. Employer appealed and the Board reversed the decision, finding that Claimant was barred by collateral estoppel and res judicata from relitigating any issues regarding his retirement, in light of the earlier litigation. Regardless of the fact that Claimant testified to a rec ent job search, the finding that he was retired could not be reopened. The Court agreed with this ruling after carefully setting forth the requirements for collateral estoppel and determining that it applied with regard to the earlier decision. At the first series of hearings, Claimant had the opportunity to prove that he was forced out of the entire labor market. Claimant failed to do so and was now estopped. Accordingly, the Board’s decision was affirmed.

A-Jon Contractors. v.
WCAB (Gregory DiMarzio (dec’d),
Margaret DiMarzio),
1520 C.D. 2006 (Pa. Cmwlth. 2007)

Even though their biological father visited them weekly and provided health insurance, the evidence of Decedent’s involvement with Claimant’s children during the ten years they lived in his house, was enough to grant a fatal claim petition in favor of the children.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s fatal claim petition. Claimant alleged that Decedent, who was struck and killed by a truck during the course of his employment, was her husband. Claimant first filed her petition in 2000, alleging that she was Decedent’s common law wife and that he stood in loco parentis to her two children. The WCJ granted the petition. The Board determined that Claimant could not be Decedent’s wife, since she had not been divorced from her previous husband, but affirmed the decision as to the children. The Board remanded the matter for a determination on the penalties requested by Claimant. On remand, the WCJ denied penalties and Employer again appealed on substantive grounds. The Board affirmed this decision and the instant appeal ensued. On the merits, the evidence showed that the children had lived with Decedent for ten years, and he provided financial and emotional support. The children’s biological father visited them weekly and provided medical insurance, but gave Claimant no other support. Both children testified as to the extent decedent participated in their lives. Although Employer claimed that Decedent took no steps to establish his role as father, the Court relied on precedent and held that the evidence of all the parenting duties Decedent undertook for the children tipped the scale in favor of Claimant. Accordingly, the order was affirmed.

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