July 3, 2007

Digest of
Appellate Decisions
June 2007

Sims v. WCAB (School District of Philadelphia), 2165 C.D. 2006 (Pa. Cmwlth. 2007)

Pryor v. WCAB (Colin Service Systems), 536 C.D. 2006 (Pa. Cmwlth. 2006)

Gregory v. WCAB (Narvon Builders), 2021 C.D. 2006 (Pa. Cmwlth. 2007)

Payne v. WCAB (Elwyn, Inc.), 216 C.D. 2007 (Pa. Cmwlth. 2007)

DeGraw v. WCAB (Redner’s Warehouse Markets, Inc.), 2036 C.D. 2006 (Pa. Cmwlth. 2007)

Weismantle v. WCAB (Lucent Technologies), 1393 C.D. 2006 (Pa. Cmwlth. 2006)

Sims v. WCAB (School District of Philadelphia),
2165 C.D. 2006 (Pa. Cmwlth. 2007)

Failure to submit claims for medical reimbursement in the proper form supported denial of Claimant’s penalty petition for non-payment of medical bills.

Commonwealth Court affirmed the decision of the Board and the WCJ, which denied Claimant’s penalty petition. Claimant suffered an injury in 1991 and Employer began paying compensation. In 2004, Claimant filed a penalty petition, alleging that Employer failed to pay reasonable medical expenses. At hearing, Claimant orally amended her petition to allege that Employer failed to pay the full amount of benefits. Claimant presented bills for an MRI, orthotic shoes and a foot cream, but they were not accepted, as she failed to prove that the bills had been properly presented or had been improperly denied by Employer. Claimant further presented two benefits check stubs that showed a difference of six dollars in payment. The WCJ again concluded that Claimant failed to prove her claim of lowered benefits, absent additional proof or evidence.

On appeal, Claimant argued that the WCJ erred in ruling that Claimant had failed to properly submit the bills to Employer, as that was a defense to be raised by Employer. Further, Claimant stated, once she presented evidence of a violation, the burden should have shifted to Employer to prove compliance with the Act. The Court disagreed and found that when regulations required claims for payment of medical expenses to be submitted on specific forms, and the evidence presented showed those forms had not been submitted, the WCJ was not raising an employer defense, but was merely evaluating the evidence presented. The regulations placed the burden on Claimant to submit the required claim forms, and in the absence of a proper submission, the claims were properly denied. Similarly, Claimant’s allegation of underpayment of benefits was vague and Claimant offered no evidence as to what amount she was actually being paid and why it was incorrect. Accordingly the petition was properly denied. Judge Pelligrini dissented and found that one of Claimant’s bills had been properly submitted and the WCJ improperly raised the issue of submission in the opinion.

Pryor v. WCAB (Colin Service Systems),
536 C.D. 2006 (Pa. Cmwlth. 2006)

Claimant’s failure to present credible medical evidence supports denial of petition to expand the NCP and allowed termination of benefits.

In a decision issued in December 2006, but published in June 2007, Commonwealth Court affirmed the decision of the WCJ and Board, which granted Employer’s termination petition. Claimant was injured in September 2001 and began receiving benefits. Employer filed a termination petition three months later alleging Claimant’s recovery. Claimant responded by filing petitions to review medical treatment, review compensation and reinstate benefits. Additionally, Claimant filed a penalty petition alleging that Employer refused to pay medical expenses. The WCJ accepted the testimony of Employer’s medical expert and found the testimony of Claimant and her medical expert as not credible. The WCJ rejected all of Claimant’s petitions and granted Employer’s. The Board affirmed this decision. On appeal, Claimant supported her argument that the 2001 denial was wrong by presenting a 2003 IRE that concluded she was five percent permanently disabled. The Court ruled that the IRE was not admissible, since it had not been presented at the original hearing and had not been made part of the record, and the Court was confined to the record before it. As to the merits, the Court concluded that the WCJ had properly weighted the testimony of the experts and the Employer’s medical expert had based his opinion of a proper review of Claimant’s medical records and a physical exam. The WCJ also properly denied Claimant’s penalty petition, which alleged that Employer improperly failed to pre-approve Claimant’s treatment at a pain clinic. Since Claimant’s petition to review compensation to include disc disease was denied and the referral to the pain clinic was chiefly to deal with the disc disease pain, failure to pre-approve this treatment did not support a penalty finding. Finally, the Court agreed with the WCJ’s dismissal of Claimant’s other petitions, since her medical expert’s testimony was properly rejected due to the doctor’s failure to review MRI films and ignorance of Claimant’s full medical history. Accordingly, benefits were terminated.

Gregory v. WCAB (Narvon Builders),
2021 C.D. 2006 (Pa. Cmwlth. 2007)

Employer was not liable for penalties for failure to pay settlement amount, when supersedeas had been granted and appeal was filed contesting a C&R agreement.

Commonwealth Court affirmed the decisions of the WCJ and Board, which denied Claimant’s petition for penalties. Claimant was injured in 2002, and ultimately reached a C&R agreement with Employer a few months later. The agreement was approved by the WCJ on December 22, 2003 and Claimant was murdered eight days later. Ten days after that, Employer filed an appeal claimant that Claimant had not understood the full significance of the agreement. Employer also filed a petition for supersedeas, alleging that Claimant was under duress when he signed the agreement. Approximately three weeks later, the Board granted the petition for supersedeas. Several months after that, Employer withdrew its appeal and issued Claimant a check for $35,000.00 plus interest. This petition for penalties followed, alleging that the appeal filed by Employer was baseless, and amounted to an unreasonable contest. The WCJ denied the petition, finding that Employer had not violated the Act by failing to pay the amount because no obligation to pay existed after the petition for supersedeas was granted. The WCJ further determined that it did not have jurisdiction to rule on the issues raised by Employer in the appeal.

On appeal, Claimant sought to distinguish his case from recent ones that allowed an employer to escape a penalty for not making benefit payments after a petition for supersedeas had been granted. Claimant contended that such benefit should not be allowed an employer when the payment owed was as a result of an agreement. The Court relied on the plain language of section 430(b) regarding payment and supersedeas, which used the word “payment” and did not distinguish as to the type of payment that was owed. Employer’s failure to make payment was not a violation of the Act because supersedeas had been granted, and once the appeal was resolved, Employer made a timely payment, with interest. Finally, the Court also agreed that the WCJ was without authority to determine whether the Board had erred in granting supersedeas or whether the appeal to the Board was an unreasonable contest. However, the Court did not clarify which was the appropriate body to hear such argument.

Payne v. WCAB (Elwyn, Inc.),
216 C.D. 2007 (Pa. Cmwlth. 2007)

Filing of notice of reconsideration did not extend period for appeal of Board decision to Commonwealth Court.

Commonwealth Court affirmed the decision of the Board to deny Claimant’s motion for reconsideration of granting of Employer’s petition to suspend benefits. Claimant was injured in 2003 and Employer began paying benefits. Two years later, Employer issued a notice to suspend payment due to Claimant’s return to work. Five days thereafter, Claimant stopped working and filed a challenge petition. Employer responded by filing a petition to suspend benefits. The WCJ granted Claimant’s challenge petition, but ultimately granted the petition to suspend benefits after a hearing wherein Employer proved that it had offered Claimant a light-duty job that was within her capabilities, but which she did not pursue in good faith. Claimant appealed and argued that Employer failed to prove that it had sent a notice of her ability to return to work as required by the Act. Employer conceded this point, but argued that Claimant did not need the notice, since Claimant performed the offered job before the suspension date. The Board held that this issue had not been raised before the WCJ and so it was to be deemed waived on appeal. The Board went on to affirm the decision on the merits. Claimant did not appeal this order, but filed a motion for reconsideration with the Board, which was denied. Claimant filed an appeal of that denial, as well as an appeal of the original Board decision.

Initially, the Court noted that it was unable to review the appeal of the Board decision as a whole, since the motion for reconsideration did not serve to extend the period time for appeal, and Claimant had not filed an appeal within 30 days of the original Board order. With regard to the appeal of the reconsideration denial, Claimant argued that the Board improperly denied the reconsideration without specifying the basis upon which it made its decision. The Court dismissed this argument because the Board had denied the petition for reconsideration, thus affirming its underlying decision, which contained its rationale and reasoning. Therefore, the Board did not abuse its discretion in denying the motion for reconsideration and its earlier order stood.

DeGraw v. WCAB (Redner’s Warehouse Markets, Inc.),
2036 C.D. 2006 (Pa. Cmwlth. 2007)

Expert’s lack of awareness of the details of Claimant’s injury or his job description did not render his opinion invalid, but went to the competency of the opinion.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Claimant’s petition to review benefits. Claimant filed a petition in 2002 alleging that he sustained an aggravation of a pre-existing degenerative lumbar condition resulting in a bulging disc the year before. Claimant also filed a petition to review medical treatment, alleging that Employer initially paid his medical bills following his injury but stopped payment thereafter. Finally, Claimant filed a penalty petition, alleging that Employer failed to file any Bureau documents upon receiving notice of his injury. Employer did file an NCP after Claimant filed his petition. Claimant then amended his claim to a petition to review compensation benefits. Employer then sought to amend the NCP in accordance with the diagnosis of its medical expert.

The WCJ determined that Claimant had met his burden that the NCP was incorrect, and amended his injury description to include an acute lumbosacral sprain. However, the WCJ went on to find that Employer issued an NCP within days of receiving notice of Claimant’s disability, and that Claimant failed to establish that Employer failed to pay any causally related medical expenses, thus prompting denial of Claimant’s penalty petition and his petition to review medical treatment. Finally, even though the WCJ found that Claimant was fully recovered from his injury, since Employer had not filed a termination petition, the WCJ was without jurisdiction to terminate benefits. The WCJ had awarded costs to Claimant, and on appeal, the Board determined that this was error, as was the WCJ’s failure to award a penalty, since Employer had not issued the NCP within the required 21 days. On remand, the WCJ awarded a $1,000.00 penalty and Claimant filed this appeal.

On review, the Court found that the WCJ had not erred in accepting the testimony of Employer’s medical expert in finding that the injury had not aggravated Claimant’s pre-existing back condition. This position was further supported by the fact that Claimant’s attorney at no time objected to the expert’s testimony regarding the nature and extent of Claimant’s injuries. While the expert did not have all the information about Claimant’s injury or his job description, this went to the weight given to the expert’s opinion, not its competency. Since there was no accusation that the expert based his opinion on false or inaccurate records, judgment of his credibility was solely the province of the WCJ and would not be reversed.

Weismantle v. WCAB (Lucent Technologies),
1393 C.D. 2006 (Pa. Cmwlth. 2006)

IRE determination of impairment did not render previously filed termination petition moot.

Commonwealth Court affirmed the decision of the WCJ and Board, which terminated Claimant’s benefits. Claimant began to collect total disability benefits in 2001 for a back injury suffered in 1999. Employer filed a termination petition in 2003 based on the opinion of its medical expert. During the pendency of the proceedings, Claimant reached the point of having collected total disability benefits for 104 weeks. After an IRE was conducted, Claimant was notified that he was being placed on partial disability. The WCJ then denied the termination petition, stating that Employer acknowledged that Claimant was impaired.

On appeal, the Board found that the WCJ had erred in assuming that an impairment rating barred an employer from seeking termination. On remand, the WCJ terminated benefits finding that Claimant had fully recovered from his injury. In the instant appeal, Claimant argued that the WCJ was barred from seeking termination once an IRE indicating impairment had been conducted and Employer had filed a notice of change of status with the Bureau. Claimant sought to distinguish the Schachter case, which allowed termination after an IRE found disability when the termination petition was filed after the disability determination. Here Claimant sought to limit this decision, arguing that it did not apply herein when the termination petition was filed prior to the IRE.

The Court disagreed that the IRE had the effect of mooting Employer’s termination petition. The Court noted the stringent time constraints for filing a petition requesting a change from total to partial disability and the lack of exceptions from this deadline. The Court also noted the medical inquiry made in an IRE was not the same as the one in a termination petition. Finally, the Court noted that IRE remedies were in addition to not instead of the remedies available to an employer who believes that an employee’s loss of wages is not the result of a work-related injury. Therefore, the WCJ’s and Board’s decisions were affirmed. Judge Colins dissented and contended that the matter should be remanded to the WCJ to designate the date of Claimant’s recovery and the corresponding date of termination as the date of the IRE.

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