June 6, 2007

Digest of
Appellate Decisions
May 2007

Mercer Lime and Stone Company and Old Republic Insurance Company v. WCAB (McGallis),
2008 C.D. 2006 (Pa. Cmwlth. 2007)

WCJ properly assessed a $5,000 penalty for payment of benefits to Claimant that occurred 35 days after the approval of the settlement.

Commonwealth Court affirmed the decisions of the WCJ and Board, which granted Claimant’s penalty petition due to Employer’s untimely payment. In 2004, the WCJ approved the compromise and release agreement between Claimant, Employer and Employer’s insurer. The agreement called for the payment of benefits, attorney’s fees and costs. An unsigned check was received by Claimant’s counsel and promptly returned. When a signed check had not been sent within eight days after the return of the first check and 31 days after the settlement was approved, the instant penalty petition was filed. Testimony at hearing indicated that the unsigned check was an honest mistake, but the delay in the reissuance of the check was prompted by the Insurer’s desire to have Claimant sign a letter of resignation, which had not been signed at the time of settlement. The WCJ found that the delay of five days was due to more than innocent error and imposed a $5,000 penalty.

On appeal, Employer argued that it had issued the check in a timely manner (referring to the first check), and that even the later payment was timely under the Act, since the payment was 15 days after the expiration of the appeal period. The Court reviewed recent decisions that expanded the time period within which to pay benefits, in light of supersedeas petitions having been filed by an employer. The Court held that such decisions made it clear that an employer’s obligation to pay compensation under an award was immediate. It was less clear, however, how quickly that payment was to be made. In the instant case, the Court felt that it was not required to reach this issue, since the facts indicated that Employer intentionally delayed payment after the unsigned check had been returned. The delay in payment was not due to the pursuit of an appeal or any other justified reason. The penalty imposed fell well within the permitted range and was not excessive. Accordingly, the decision was affirmed.

Huynh v. WCAB (Hatfield Quality Meats),
30 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant’s failure to raise issues on appeal, no matter how valid, rendered decision final and unassailable in later litigation.

Commonwealth Court affirmed the decision of the Board, which had reversed the WCJ’s decision to grant Claimant’s reinstatement decision. Claimant was injured in 1997 as a result of a fall at work. Employer began to pay benefits immediately, but did not file a notice of compensation payable. A year later, Employer filed a utilization review request challenging Claimant’s chiropractic treatment. Employer prevailed and Claimant filed a petition for review and a claim petition, alleging hearing loss as a result of his injury. These petitions were consolidated with Employer’s petition to terminate benefits. As litigation was pending, Employer issued a notice of compensation payable, describing the injury as contusion to head and ribs. However, the NCP was never entered into evidence at hearing. Claimant testified at hearing and presented medical testimony. Employer presented the expert testimony from a number of doctors. The WCJ found that Claimant had presented no credible, medical testimony that he had sustained a hearing loss as a result of the work injury. Claimant’s petitions were denied, and Employer’s petition to terminate was granted.

Three months later, Claimant filed a pro se petition asking to reinstate his benefits. Nearly two years later, Claimant filed a nunc pro tunc appeal of the WCJ’s decision and Employer sought to quash the appeal. Employer’s motion was granted by the Board and the WCJ scheduled a hearing on Claimant’s petition to reinstate. Claimant argued that Employer had never established that Claimant was fully recovered from the head injuries noted in the NCP. The NCP was entered into evidence and the WCJ reinstated the benefits, agreeing that the issue of the head injury had not been resolved at the first hearing. On appeal, the Board agreed with Employer that the reinstatement petition was merely an attempt to relitigate the issues of the first petition and showed no new or increased disability, as required by law. Before the Court, Claimant argued that the issue of head injuries had not been ruled on at the first hearing, therefore the doctrine of collateral estoppel did not apply. In rejecting this premise, the Court noted that no new evidence had been presented at the second hearing, and Claimant’s counsel had admitted that the chief purpose of the second petition was to correct the errors made at the first hearing. No evidence of new or increased disability was presented. While the Court agreed, that the arguments presented likely would have resulted in a reversal of the first decision had they been properly raised, failure to file a timely appeal rendered the first decision as final. The doctrines of res judicata and collateral estoppel clearly applied.

Allegheny Ludlum Corporation v. WCAB (Michael Carney, deceased, Pamela Carney, widow),
2020C.D. 2006 (Pa. Cmwlth. 2007)

Employer is not entitled to offset death benefits to widow, even though she is receiving surviving spouse pension benefits from a fund fully funded by Employer.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted the review offset petition filed by Claimant-widow. Decedent died in the course of his employment with Employer, and Employer entered into an agreement to pay compensation death benefits to Claimant and her two children. Claimant also began receiving pension benefits as the surviving spouse. Several months after the agreement, Employer filed an offset notice because of the receipt of the pension. Claimant filed the instant petition alleging that the offset was improper. At hearing, it was established that Claimant would receive the full pension benefit for five years, then benefits would be reduced until she reached age 60 when she would be eligible to receive Decedent’s surviving spouse Social Security benefits and the pension would decrease accordingly.

The WCJ, in granting Claimant’s petition, held that there was no basis in case law for the offset of a death benefit. The WCJ relied on section 204(a) of the Act, which allowed an offset against compensation paid to the employee. Since earlier cases had determined that Claimant’s benefit was not derivative of Decedent’s benefits, Employer was not entitled to an offset. On appeal, Employer argued that Claimant would receive more than she would have had Decedent survived his accident. The Board and the Court relied on the plain language of section 204(a) and the total absence of reference to death benefits in that offset provision of the Act. Accordingly, the decisions below were affirmed.

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