April 4, 2007

Digest of
Appellate Decisions
March 2007

Kelley v. WCAB (Standard Steel), 1434 C.D. 2006 (Pa. Cmwlth. 2007)

WCJ properly dismissed Claimant’s review petition due to his failure to file it within three years of last receiving benefits in 1997 for compensation due to a disfiguring scar that became permanent in 1993.

Commonwealth Court affirmed the decisions of the WCJ and Board, which dismissed Claimant’s review petition as untimely filed. Claimant argued that his disfigurement claim was timely as it was filed within three years of the amendment of the description of his work injury to include disfigurement, and within three years from the date that Employer ultimately accepted responsibility for the injury. Claimant had first suffered his injury in 1991, and litigation continued on various issues, including expansion of the injury description until 2005, when the parties submitted a stipulation that amended the NCP to include a herniated disc injury. The parties agreed that the disfigurement was a result of neck surgery that had been performed to treat the injury and became permanent in 1993.

The WCJ denied the instant review petition because it had not been filed within three years of the 1993 date. The WCJ reasoned that Claimant testified to being aware of the scar’s permanency in 1993 and that is stemmed from the 1991 work injury. Claimant could not go back and negate any of that awareness when it had been previously stipulated to. Amendment of the NCP did not serve to resurrect the statute of limitations. The Court looked at the plain language of section 413(a), which required that a petition for modification of an NCP must be filed within three years of the date of the most recent payment of compensation. Since Claimant’s benefits were suspended in 1997, and he was aware of the scar’s permanency in 1993, his petition was time-barred. At no time did Employer waive its right to assert a statute of limitations defense in the stipulation the parties signed in 2005. Accordingly, the dismissal was affirmed.

Merkel v. WCAB (Hofmann Industries), 1586 C.D. 2006 (Pa. Cmwlth. 2007)

Claimant could not relitigate issue of calculation of AWW, even though case law had changed and the calculation would have been different.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant's review petition. Claimant alleged that Employer had not properly calculated Claimant’s average weekly wage when determining his benefits. Employer responded that the same issue had been raised and denied on the merits in an earlier petition. Claimant argued that, in the interim, case law had changed, prompting recalculation of the AWW. The WCJ denied the petition based on res judicata and the law of the case.

On appeal, Claimant argued that there was not an identity of causes of action, so res judicata did not apply. Previously, Claimant argued as to what section of the Act his AWW should be calculated under; herein, he was disputing how his AWW should be calculated. The Court determined that res judicata applied to matters actually litigated in the first proceeding, as well as any possible issues that arose therefrom. The fact that Claimant could have but did not raise the issue of how his AWW was calculated in the first contest did not afford him an opportunity to raise the issue in a second proceeding.

Finally, the principle that allowed appellate courts to change a decision during litigation of a case, if another appellate decision had changed an already-decided issue, did not apply herein, since Claimant’s first decision had already gone to the Pennsylvania Supreme Court and had been denied on Claimant’s petition for allowance of appeal. Once the appeal was denied, the judgment was final and could not be relitigated or altered in any way. Accordingly, the decisions were affirmed.

Miller v. WCAB (Pavex, Inc.), 758 C.D. 2006 (Pa. Cmwlth. 2007)

Claimant could not pursue claim of violation of due process for dismissal of his URO review petition when he had not established an entitlement to benefits, since his medical treatment was not found to be reasonable and necessary.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which denied Claimant’s petition for review of a utilization review determination. Claimant had been receiving benefits when Employer asked the Bureau to assign a URO to review the reasonableness of all treatment provided to Claimant, including lumbar ESI and cervical ESI after a certain date. The URO determined the care reviewed was not reasonable and necessary, based on the provider’s failure to supply the medical records. During the pendency of Claimant’s petition, the Court issued its decision in Geisler. The WCJ concluded that that holding was contrary to the Due Process Clause of the Fourteenth Amendment. However, the WCJ held that he was bound by the precedent and lacked authority to issue a contrary ruling. The Board also adopted this finding. On appeal, Claimant argued that the dismissal of his review violated his right to procedural due process because it deprived him of a protected property interest without providing administrative or judicial review of the determination. Claimant requested a remand to the WCJ for a de novo hearing on his petition to review the URO determination.

On review, the Court initially analyzed whether Claimant had a protected property interest. The Court reasoned that the Act gave Claimant a qualified entitlement to treatment for the medical conditions caused by the workplace injury. Not only was Claimant required to show employer liability for the injury, but he was then obligated to show that the treatment given was reasonable and necessary. Although Claimant had cleared the first hurdle in proving employer liability, he had not yet established that the treatment in question was reasonable and necessary. Absent this determination, Claimant did not have a property interest that was subject to due process protection. Since Claimant could not prove a property right to his benefits, he could not pursue his constitutional claim and the decisions below were affirmed.

Jordan v. WCAB (Philadelphia Newspapers, Inc.), 340 C.D. 2006 (Pa. Cmwlth. 2007)

Employer violated Act when it failed to issue an NCP, even though it had issued a temporary notice and Claimant had not lost benefits due to salary continuation.

Commonwealth Court affirmed the decision of the Board and the modified decision of the WCJ, which granted Claimant’s petition for benefits in part. Claimant was injured in 2003 and Employer issued a temporary notice of compensation payable. Claimant’s injury was described as post concussion syndrome and cervical and lumbar sprains. One month later, Employer issued a denial that stated that the benefits would cease one week prior to the date of the notice. Five months thereafter, Claimant petitioned for benefits and alleged that he suffered a closed head injury, cervical spine injury, low back injury and headaches as a result of the earlier injury. Claimant also petitioned for penalties and asserted that Employer failed to issue an NCP within 21 days of his injury. Claimant’s medical expert testified that Claimant’s medical conditions were a result of his work injury and that they prevented him from working more than four hours a day at a sedentary job. Employer’s expert testified that Claimant was able to return full time to his pre-injury job for four hours a day. Claimant did return to work in a part-time, sedentary position, but was unable to complete a shift due to nausea and ultimately was hospitalized.

The WCJ granted Claimant’s petition in part. Claimant was granted full benefits from the time of injury until he returned part-time. The temporary benefits were deducted, and Claimant’s penalty petition was granted with an unreasonable contest award of $3,000 and payment of litigation costs. The WCJ determined that Claimant was able to return to part time work and that Employer reasonably accommodated his condition. Claimant appealed that part of the decision that ended the benefits because the job offered to Claimant was not within his restrictions. The Board reduced the penalty, finding that Employer’s violation did not cause an excessive delay, and increased Claimant’s benefits to reflect his part time work. This appeal followed.

The Court supported the decisions below that failed to award Claimant benefits when he stopped working the second time. The Court noted that Claimant had not demonstrated through substantial competent evidence that his work-related injury recurred such that a reinstatement of total benefits was warranted. The proper termination of full benefits was the date that Employer’s expert testified that Claimant was able to work and Employer offered Claimant an appropriate position.

The Court agreed with the Board that Employer violated the Act when it issued the notice of compensation denial, since it knew for a fact that it was liable for the work-related injury. The Court dismissed Employer’s argument that there was no violation because Claimant did not have compensable lost time on account of his salary continuation immediately after his injury. Claimant’s salary continuation did not alter the fact that he suffered a work-related injury and Employer was required to issue an NCP. Having agreed with the finding of a violation, the Court declined to overturn the findings of the WCJ and reinstated the 50% penalty.

Finally, the Court found that the WCJ erred when he determined that Employer’s contest was reasonable with respect to the claim petition, and as a result, Employer was ordered to pay all of Claimant’s attorney’s fees of $8,525. Accordingly, the order was affirmed in part and reversed in part.