August 3, 2007

Digest of
Appellate Decisions
July 2007

Davis v. WCAB (Woolworth Corporation),
1873 C.D. 2006 (Pa. Cmwlth. 2007)

Passage of seven years since last physical exam was sufficient basis upon which to order another exam under section 314.

Commonwealth Court affirmed the decision of the Board, which had reversed a WCJ decision denying Employer’s petition to compel a physical examination of Claimant. Claimant was injured in 1990 and her claim was ultimately settled in 1997. Part of the settlement called for Employer to remain responsible for Claimant’s medical expenses. Claimant filed a successful utilization review petition in 2003. Employer filed this petition in 2004, alleging that Claimant’s last physical exam had been in 1997. Claimant contended that there was no reasonable basis for the exam since her prescriptions had been found reasonable and necessary in the utilization review process the year before. The WCJ accepted this argument and denied the petition. In reversing this decision, the Board held that the WCJ had misconstrued the purpose of utilization review, which did not address questions concerning a claimant’s disability. Further, the Board concluded that since the primary purpose for requesting an examination under section 314 was to determine if a claimant’s status had changed, no specific allegation was needed. The matter was remanded for the taking of evidence. After the presentation of the notice of the exam and the qualification of the examiner, the WCJ again denied the petition, ruling that the passage of seven years was not a sufficient reason upon which to order an exam. Employer again appealed and the Board again reversed the WCJ’s decision, since Claimant’s injury was not an irreversible occupational disease. The Court distinguished an earlier case that denied such a petition when the time period between exams was three years by finding that the seven-year passage of time supplied a sufficient foundation to grant Employer’s request under section 314. Accordingly, the Board’s order was reversed.

Bartholetti v. WCAB (School District of Philadelphia),
2058 C.D. 2006 (Pa. Cmwlth. 2007)

Board erred in reversing WCJ’s evidentiary finding, when psychologist’s testimony as to Claimant’s psychic injury being a result of the physical injury she received at work was clear and unequivocal.

Commonwealth Court reversed that part of the WCJ’s decision, which denied Claimant’s petition for wage loss benefits. Claimant had been employed as a school teacher when she was punched and bitten as she attempted to stop a fight between two students. A month after the incident, Claimant filed the instant petition alleging that, as a result of the incident, she suffered severe anxiety and depression from the abnormal working conditions. Claimant sought lost wages and medical expenses. Claimant testified that immediately after the incident, she sought treatment from her family doctor who referred her to a psychologist and ultimately a psychiatrist for prescription medication. The psychologist’s report was submitted at hearing and documented Claimant’s feelings of stress and anxiety. The WCJ granted Claimant’s petition and awarded wage loss and medical benefits. The Board reversed the wage loss award, reasoning that Claimant had failed to offer medical evidence to prove the disabling nature of her work injuries, as required.

On appeal before the Court, Claimant argued that the Board had engaged in fact-finding when it rejected the WCJ’s acceptance of Claimant’s testimony and evidence. The Court noted that reinterpretation of evidence by the Board, when the WCJ’s conclusions were supported by competent evidence, was in excess of the Board’s scope of review. The credible psychological evidence in the case was clear and unequivocal proof of Claimant’s disability having been caused by her work injury. Additionally, Employer’s contention that Claimant should only receive benefits until the end of the school year was dismissed. The AWW was based on Claimant’s yearly salary, divided by 52 weeks. Even if Claimant did not earn anything in the summer, her annual income remained the same so her AWW was not affected. Finally, the Court denied Employer’s request for credit due to Claimant’s use of sick leave when she was first injured, since earlier case law had denied an entitlement to such credit as a matter of law. Accordingly, the Board’s decision was amended to reinstate the award of wage loss benefits.

Hough v. WCAB (AC&T),
2198 C.D. 2006 (Pa. Cmwlth. 2007)

Claimant had standing to file and prevail on penalty petition due to Employer’s failure to reimburse prescription drug costs properly submitted by prescription provider.

Commonwealth Court reversed the Board’s decision and reinstated the WCJ award of penalty on Claimant’s unpaid pharmacy bills and related attorneys’ fees. Claimant suffered a partial amputation of her ring finger in 2003. Thereafter, she was prescribed several medications for reflex sympathetic dystrophy. Although Provider submitted all outstanding balances, health insurance claim forms and necessary medical reports to Employer, Employer failed to timely reimburse Provider for Claimant’s medications. As a result, Claimant filed a penalty petition in 2005. The WCJ awarded a 50% penalty on the outstanding $4,250.53 in bills. A quantum meruit award of attorneys’ fees was made as well. On appeal, the Board agreed with Employer’s contention that it was Provider’s responsibility to file a fee review application challenging the untimeliness of payment, not Claimant’s.

The Court rejected the Board’s rationale and Employer’s argument that the WCJ lacked jurisdiction to address Claimant’s penalty petition because Provider did not first file for fee review. The Court found that section 306(f.1)(5) controlled the matter, not section 306(f.1)(6), governing utilization review, as Employer contended. In section 306(f.1)(5), no language existed in the fee review provision that limited an employee’s right to pursue a penalty petition under section 435 of the Act as a result of a late payment of medical bills. Since Employer filed to challenge Claimant’s bills through utilization review under section 306(f.1)(6), nothing preempted the WCJ’s subject matter jurisdiction over Claimant’s penalty petition. Additionally, the Court supported the amount of the award, noting that the Act did not require that a claimant suffer economic harm before a penalty could be imposed. Penalties could also be imposed in order to secure compliance with the Act. Finally, the Court affirmed the award of fees: since Employer had not challenged the propriety of the fees and no petition would have been filed if Employer had paid the costs within the time proscribed by the Act, the award was reasonable. Accordingly, the WCJ’s order was reinstated.

Graphic Packaging, Inc. v. WCAB,
1066 C.D. 2006 (Pa. Cmwlth. 2007)
Zink v. WCAB,
1544 C.D. 2006 (Pa. Cmwlth. 2007)

Employer was assessed penalty for not paying benefits after Commonwealth Court remand order even though it did not contain a sum certain to be paid. Employer was liable for continuing benefits when it failed to show that job was available for Claimant after he had recovered from disability, although it had shown that the job had been available before that time.

Commonwealth Court affirmed in part and reversed in part the order of the Board and the WCJ, which awarded benefits to Claimant for a closed period and granted his penalty petition. Employer hired Claimant pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. As a result of the war, Claimant suffered from PTSD, which left him unable to sleep at night. For the 13 years that Claimant worked for Employer, he traded shifts with other workers so that he could always work the night shift. In 1995, Employer adopted a rotating shift schedule, which required Claimant to rotate among all three shifts. Claimant was unable to get the sleep he needed and began to suffer increased stress, ulcer flare-ups and a worsening of pain in his leg and lower back. Claimant and his physician repeatedly asked that Claimant be returned to night duty, but Employer refused. Claimant informed Employer in 1996 that he had to leave employment because he could no longer handle the physical impact of the rolling shifts. A few weeks later, Claimant filed a petition seeking benefits for a work-related aggravation of his pre-existing physical and mental injuries. The petition was denied in 2001, even though the WCJ accepted the testimony of Claimant and his experts, it was determined that a rotating shift schedule did not constitute abnormal working conditions. This decision was reversed by the Board and remanded for a determination of benefits. Claimant had returned to work in the beginning of 1997. Claimant then filed a penalty petition when Employer unsuccessfully appealed the matter to the Supreme Court.

On remand, the WCJ awarded temporary total disability for the period Claimant was out of work, and a 40% penalty due to Employer’s failure to make payment or apply for supersedeas. Both parties appealed. Employer argued that it had no obligation to make payments immediately, since the first remand order did not expressly direct employer to pay an amount certain to Claimant, but rather remanded the matter for determination of award. The Court held that the Act required prompt payment, and, in this case, that obligation started upon the issuance of the Court’s first decision. Employer was aware of the amount to be paid, since it had introduced Claimant’s statement of wages into evidence. Absent the filing of supersedeas petition, Employer’s obligation was absolute and the penalty awarded was in keeping with Employer’s conduct. The Court did find that the WCJ erred in determining the benefits period; since Employer had presented no evidence that it made work available to Claimant within his limitations once Claimant was released to work. Employer showed that the position was available at the time Claimant stopped working, but Claimant was unable to perform the job at that time due to his disability. Having failed to establish a basis to suspend Claimant’s benefits, Employer was liable for, and obligated to pay Claimant benefits from the date of disability and ongoing.

Shop Vac Corporation v. WCAB (Thomas),
217 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant’s unexcused absences that led to firing were not bad faith that allowed termination of her benefits, since most of Claimant’s absences were due to pain still experienced from her work-related injury.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which concluded that Employer did not fire Claimant for bad faith. Claimant was injured in 2002 and Employer issued a notice of temporary compensation payable. Claimant returned to work in six months, but was laid off six months later. All the time Claimant worked for Employer, she also maintained a second part-time job. After termination by Employer, Claimant increased her part-time hours to full-time. She worked for the second employer until her firing in 2004. Claimant filed a reinstatement petition in early 2004, alleging that her injury had again caused a decrease in her earning capacity. Claimant also filed a petition alleging that the injury description contained in the NCP was materially incorrect and should be amended, and she alleged that the AWW had been incorrectly calculated because it did not include wages from her part-time employment. Employer filed a termination petition in response, alleging Claimant’s full recovery in 2005. The parties agreed to amend the injury description in the NCP and the WCJ found that the part-time employment income was improperly excluded from the AWW calculation. The WCJ further found that Claimant’s termination from Employer was not due to bad faith, but her termination from the part-time employer had been. The Board affirmed this decision.

Employer appealed only that part of the decision that granted Claimant’s reinstatement petition and awarded ongoing disability. Claimant had been discharged for excessive absenteeism. Claimant contended the major cause for her absence was pain resulting from her work injury and the treatment for that pain. The WCJ accepted Claimant’s testimony that most of her absences were due to pain from her injury. The WCJ discredited the testimony of Employer’s safety manager to the extent that it implied that Claimant’s absence was related to other circumstances. On appeal Employer argued that Claimant was discharged for violating written company attendance policy, regardless of the reason. Claimant countered that Employer failed to definitively establish the basis for her discharge. The Court reviewed the testimony of Employer’s safety manager and found that it was not clear that Claimant’s unexcused absences were due to her injury and were marked as unexcused because she had run out of sick days. Without such a showing, it could not be said that Claimant’s termination was due to willful misconduct, and thus the WCJ did not err in finding that Claimant’s conduct did not rise to the less strict level of bad faith. Since Claimant had reported to work when she was physically able, the WCJ’s finding stood.

CRST v. WCAB (Boyles),
954 C.D. 2006 (Pa. Cmwlth. 2007)

Employer was not precluded from seeking modification of benefits based on Claimant’s earning capacity, even though Claimant had sought and found employment on his own prior to being advised of available market positions.

Commonwealth Court reversed the decisions of the WCJ and the Board, which denied Employer’s modification petition. Claimant was injured in 1998. Although he was released to return to work in 2000, Employer did not have any suitable positions; thereafter, Claimant applied for various jobs on his own. Claimant found full-time work and later part-time work with the county sheriff’s department. The latter job required that Claimant cut his full-time work hours to part-time. Claimant anticipated full-time employment with the sheriff’s department at the time of hearing. As a result of a vocational interview, Employer’s rehabilitation counselor located three different positions for Claimant that paid him one-to four more dollars per hour than he was presently making. Although the WCJ found the expert to be credible, Employer’s petition to modify benefits was denied because Claimant found suitable employment on his own within his restrictions. The decision was affirmed by the Board on its merits and remanded back to the WCJ for fact-finding as to Claimant’s actual earnings and earning capacity. The WCJ determined that Claimant’s earning power should be based on one of the full-time positions identified by the rehabilitation counselor, since it was consistent with Claimant’s interest in law enforcement. Even though this figure was greater than Claimant’s actual earnings, the WCJ still denied Employer’s petition, finding that Claimant had acted reasonably on his own in finding employment when he received the notice of ability to return to work. The Board agreed and ruled that Employer was precluded from establishing that Claimant had a greater earning capacity.

On review, the Court first clarified the viability of the Kachinski line of cases. Those standards continued to apply where an employer sought to modify benefits based on an offer of a specific job with the employer. The standards did not apply in Act 57 cases allowing for modification upon proof of “earning power.” Kachinski was therefore inapplicable to the instant case. The Court noted that Act 57 had no time limit by which employers must use earning capacity assessments for claimants with restored working capabilities; thus Employer was not precluded from offering expert reports to establish Claimant’s earning power after Claimant had already found other employment. The WCJ erred when she assumed that she only had to consider the legal issue of whether Employer was entitled to further modification of Claimant’s benefits. The Court found that it was within the WCJ’s authority to render an earning capacity decision based on Claimant’s actual earnings and the labor market survey, and the fact that he had found a job prior to being advised of the others available in the market did not preclude consideration of Employer’s petition. The matter was remanded for determination of benefits based on the Claimant’s earning capacity.

(Back to top)