March 5, 2007

Digest of
Appellate Decisions
February 2007

Bucks County Community College v. WCAB (Nemes, Jr.), 950 C.D. 2006 (Pa. Cmwlth. 2007)

Lori Newhart Costello & Joseph Costello (Dec’d) v. WCAB (Kinsey Construction, Inc.), 831 C.D. 2006 (Pa. Cmwlth. 2006)

Bradley v. WCAB (County of Delaware), 343C.D. 2006 (Pa. Cmwlth. 2007)

Bucks County Community College v.
WCAB (Nemes, Jr.),
950 C.D. 2006 (Pa. Cmwlth. 2007)

WCJ did not err in setting aside utilization review determination, since review was not of doctor who had been the subject of the request, but an associated doctor, even though that doctor had treated Claimant.

Commonwealth Court affirmed the decisions of the WCJ and Board, which both dismissed Claimant’s petition for review of the utilization review determination and set aside the determination as invalid. Claimant suffered injuries to his neck, back and hip in 2001. Claimant received benefits until 2004 when a Compromise and Release Agreement was signed for a lump sum and medical benefits for two years. Four months later, Employer filed its utilization review request, seeking review of the reasonableness and necessity of the medical treatment. The reviewer determined that the treatment was reasonable and necessary.

Claimant thereafter filed a petition to review the utilization review determination. The WCJ concluded that the report was invalid, since no evaluation of the treatment sought to be reviewed had been performed. Employer appealed, arguing that the treatment reviewed was relevant, since it had been performed by a provider of the same license and specialty as the provider in question. The Board rejected this argument and relied on the language of the Bureau of Workers’ Compensation utilization review request form, which specifically stated that the provider under review must be an individual, not a hospital, corporation or group. Furthermore, it made no difference that the doctor actually reviewed was in practice with the doctor who was originally named in the request. Claimant suggested that Employer could have solved its own problem by identifying the correct doctor upon noticing that the review was incorrect. Even though Employer had asked for review of any other relevant provider, the Court declined to interpret the request form any more broadly than had been done by the WCJ or the Board. Accordingly, the orders were affirmed.

Lori Newhart Costello &
Joseph Costello (Dec’d) v.
WCAB (Kinsey Construction, Inc.),
831 C.D. 2006 (Pa. Cmwlth. 2006)

Law abolishing common law marriage at a date later than previous Commonwealth Court decision controlled and allowed Claimant to receive death benefits.

Commonwealth Court, in an en banc decision, reversed the Board and reinstated the WCJ’s determination that Claimant had established a valid common law marriage, and thus was entitled to death benefits arising from a fatal claim petition. Decedent died on June 28, 2004 from a crush injury that he sustained in the course of his employment. In connection with filing the fatal claim petition, Claimant stated that she had entered into a notarized confirmation of common law marriage in 2003 with decedent. The parties began living together in 1998 and shared financial accounts and expenses. After the confirmation document was executed, Claimant began using a married name for herself and the parties’ son, the parties filed a joint tax return, and Claimant became covered under decedent’s life insurance through his employment.

The confirmation document was executed two months after the Court had invalidated common law marriage in an earlier decision. That decision indicated that prospectively, no common law marriage would be recognized. The WCJ relied on the amendment to the Marriage Law, which outlawed any common law marriage contracted after January 1, 2005. The Court noted that the issue was primarily one of statutory interpretation and held that the statute superseded the previous Commonwealth Court decision, as it set a clear date beyond which common law marriage was not recognized, and the decisional law prior to the entry of the act was conflicting (Commonwealth Court had outlawed common law marriage, but the Pennsylvania Supreme Court had declined to do so). The Court presumed that the legislature had been aware of the earlier court decisions and had chosen to abolish common law marriage at a later date. Accordingly, the Board’s decision was reversed and Claimant was entitled to death benefits. Judges Simpson and Leavitt dissented.

Bradley v. WCAB (County of Delaware),
343C.D. 2006 (Pa. Cmwlth. 2007)

One sentence decision by WCJ was sufficient order and opinion to suspend Claimant’s benefits, when parties agreed that Claimant did not attend vocational expert interview that had been previously ordered.

Commonwealth Court affirmed the decision of the Board and the WCJ, which suspended Claimant’s benefits due to her failure to attend a court-ordered vocational expert interview. Claimant contended that the order was not supported by substantial, competent evidence. Claimant sustained her injury in 1997 and received benefits. In 2005, Employer filed a petition to compel the expert interview, and based solely on the curriculum vitae of the suggested expert, the WCJ granted the petition, finding that the expert met the minimum regulatory requirements of the Department of Labor and Industry. Claimant appealed to the Board. Employer filed the instant petition requesting suspension when Claimant failed to attend the interview. The WCJ entered a one-sentence order after the parties agreed that Claimant failed to appear for the interview. Claimant appealed, contending that the record lacked any evidence to support the decision to suspend. The Board rejected the appeal, finding that the decision met the Act’s requirements.

Before the Court, Claimant contended that the record was not certified as required under regulations, and that the WCJ made no findings of fact or conclusions of law. Claimant further argued that the record was devoid of evidence to demonstrate that the parties actually agreed that Claimant failed to attend the vocational interview. In dismissing this argument, the Court ruled that the WCJ’s rationale was clear: neither party denied that Claimant did not attend the hearing, Claimant merely wished to argue that she could not be penalized due to the pending appeal of the underlying order directing her to attend. The Court ruled that pendency of the appeal did not excuse Claimant’s appearance at the interview. The WCJ’s rationale was clear from the order, so no further findings or explanations were necessary. Accordingly, the order was affirmed.

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