December 4, 2007

Digest of
Appellate Decisions
November 2007

Kennelty v. WCAB (Schwan’s Home Service, Inc),
349 WAL 206 (Pa. Sup. Ct. 2007)

Commonwealth Court was bound by credibility determination of WCJ that frequent gunpoint robberies were regular work occurrences.

In a brief, unpublished decision, the Pennsylvania Supreme Court reversed the decision of the Commonwealth Court, which reversed the decision of the WCJ. The WCJ had determined that the testimony of Employer’s employees that regular robberies were frequent during the course of business was credible. Commonwealth Court was not free to disturb this credibility determination, as it was based on competent evidence. Justice Saylor concurred, but distinguished his concurrence based on the insufficiency of Claimant’s medical experts.

Schafer v. WCAB (Martin Schafer Jr., Inc., Selective Insurance Company),
88 C.D. 2007 (Pa. Cmwlth. 2007)

Death benefits were not available for president of corporation who had waived his right to receive benefits; surviving spouse had burden to prove waiver had been revoked.

Commonwealth Court affirmed the decisions of the WCJ and Board, which denied Claimant’s fatal claim petition in the death of Decedent, her husband. Decedent was killed as a result of electrocution. He had been the owner and sole shareholder of Employer, and he served as its president and executive officer. After the claim was filed, Insurer filed an answer that alleged that Decedent had waived any rights to workers’ compensation by executing an affidavit electing not to be an employee for purposes of the Act. After hearing testimony and receiving evidence, the WCJ concluded that Decedent had signed the waiver and had not revoked it at any time before his death.

On appeal, Claimant protested that the burden to prove that Decedent had not revoked his waiver was improperly placed on her. The Board disagreed, ruling that it was Claimant’s burden to prove all the elements of her claim, including the fact that Decedent was an employee. Before the Court, Claimant contended that once she proved that Decedent had sustained a work-related injury in the scope of his employment, the burden shifted to Insurer to prove that a valid waiver existed as an affirmative defense and to establish that Decedent signed the waiver. The Court disagreed with this argument and agreed instead with the reasoning of the Board, that Claimant was required to prove all the elements of her claim first: among them being the fact that Decedent was an employee at the time of the accident. Even if Insurer had a burden to prove that Decedent had signed the waiver, the Court concluded that there was sufficient evidence for the WCJ to determine that Decedent had waived his rights to receive benefits. Accordingly, the order was affirmed.

Morella v. WCAB (Mayfield Foundry, Inc., and Laundry Owners Mutual Liab.),
141 C.D. 2007 (Pa. Cmwlth. 2007)

WCJ erred in finding that Claimant had only a part-time earning capacity when none of the experts presented testified to Claimant’s ability to work only part-time.

Commonwealth Court affirmed the decision of the WCJ and Board, which granted Employer’s modification petition reducing Claimant’s benefits, but modifying the award to reflect that Claimant had full-time earning capacity. Claimant sustained a back injury in 1998. In 2004, Employer filed a modification petition claiming that full-time work was available to Claimant with no loss of earning power. Claimant filed an answer denying these allegations. Employer presented testimony from its medical expert and a rehabilitation consultant who testified that full-time work was available for someone with Claimant’s physical limitations. The WCJ found that the Claimant’s long absence from the work force limited him to only a part-time earning capacity thus reducing his benefits by $100.00.

Employer appealed to the Board, arguing that the evidence showed that Claimant was capable of full-time work. The Board agreed that the WCJ’s finding that Claimant was only capable of working 20 hours per week was inconsistent with the finding that Claimant had the physical capability to perform full-time work. The Board modified the WCJ’s decision to reflect Claimant’s earning capacity at a full-time, light duty rate, thus reducing his benefits by another hundred dollars. Claimant filed the instant appeal. The Court agreed with the Board’s rationale: the only substantial evidence presented at hearing was that Claimant could work full-time. The WCJ’s decision to find a part-time earning capacity was based on opinion, not evidence. The Board had not erred in making the WCJ’s award conform to the findings. Accordingly, the order was affirmed. Judge McGinley dissented, contending that the Board improperly assessed credibility of witness and made findings, roles that were solely the province of the WCJ.

Elberson v. WCAB (Elwyn, Inc.),
2408 C.D. 2006 (Pa. Cmwlth. 2007)

Opinion of Employer’s medical expert was improperly relied upon by the WCJ when the expert did not recognize Claimant’s work injury as described in the NCP when giving his opinion that Claimant had fully recovered.

Commonwealth Court reversed the decisions of the Board and the WCJ, which granted Employer’s termination petition. Claimant sustained a back injury in 2001 and began receiving benefits. Three years later, Employer filed the instant petition, alleging that Claimant had fully recovered. Employer’s medical expert testified that Claimant had recovered from her injury, but suffered from pre-existing back problems that left her unable to return to her old job. Claimant’s medical expert testified that Claimant still suffered from her injuries, had no pre-existing back condition, and was unable to return to her former employment because she was unable to perform the required lifting.

Claimant appealed to the Board, arguing that the WCJ erred in relying on the testimony of Employer’s medical expert because he failed to testify as to Claimant’s recovery from the injury described in the NCP. The Board disagreed, finding that there was enough in the expert’s testimony to support the WCJ’s decision. Claimant asserted this same argument before the Court, alleging that Employer had not met its burden to support termination. The Court agreed and cited precedent that held in order for an employer’s medical expert’s testimony to be relied upon, the expert must recognize the work injury as described in the NCP and testify that the claimant had fully recovered from that injury. The Court reviewed the expert’s testimony wherein he stated that he did not know what the work injury was, but inferred the injury from his examination of Claimant. Without recognizing the specific injury, the expert’s opinion was insufficient to support the proposition that Claimant had fully recovered. Accordingly, the order granting the termination petition was reversed. Judge Leavitt dissented, agreeing with the WCJ and the Board that the expert’s testimony was sufficient to find that Claimant had fully recovered.

Loc, Inc and Nationwide Insurance/Wausau Insurance Company v. WCAB (Graham),
536 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant’s doctor could not be prohibited from testifying at hearing on petition for review of Utilization Review determination, where the doctor had provided substantial, but not all, documentation of Claimant’s medical treatment to the UR doctor.

Commonwealth Court affirmed the decision of the WCJ and Board, which granted Claimant’s pro se petition for review of the Utilization Review Determination. Claimant suffered a work injury in 1998, injuring his back. The parties had entered into a C & R regarding benefits, with Employer remaining liable for Claimant’s ongoing medical treatment. Petitioners filed a UR request in 2005, and the reviewing doctor stated that the absence of the medical records required for the chronic prescription of opiod or other analgesics prompted his finding that the treatment was not medically necessary. Claimant presented the testimony of his treating doctor, which the WCJ allowed over Petitioners’objection based on Geisler. The WCJ ruled that the testimony was allowable, since the WCJ had been presented records from the testifying doctor including office notes and procedure notes. The Board affirmed the Geisler ruling and the decision.

On appeal, Petitioners argued that when the doctor failed to provide his entire medical record to the UR officer, the process was circumvented and resulted in the WCJ vesting jurisdiction in her to conduct an utilization review. The Court distinguished this case from Geisler in that no medical records had ever been presented in Geisler and a reviewer was never assigned to the case and a report was never issued, making review by a WCJ impossible. Instantly, the reviewing doctor included a lengthy listing of records supplied to him for review purposes, and documented a phone conversation he had with the treating doctor regarding Claimant’s medications. Based on these facts, Geisler was not applicable. With regard to the doctor’s testimony, the Court found that the testimony heard by the WCJ was more than adequate to support a finding in Claimant’s favor. Accordingly the decision was affirmed.

Seven Stars Farm, Inc. v. WCAB (Griffiths),
990 C.D. 2007 (Pa. Cmwlth. 2007)

Insurer improperly withheld payment of medical expenses due to improper forms being submitted, when it had paid the same bills in the past, and had all the necessary information to make payment.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s penalty petition due to Employer’s Insurers failure to pay bills for medical treatment. Claimant sustained a work injury in 2000 that left him a quadriplegic. Claimant filed the instant petition three years later when Insurers failed to pay for supplies and home health care. Although she had no professional training, Claimant’s home health care aide documented her hours worked on a form given to her by Employer that indicated that she was a nurse’s aide. Employer then submitted these forms to Insurer. Insurer contended that the bills were not paid because they had not been submitted on the proper forms and were not accompanied by the proper documentation.

The WCJ accepted the testimony of Claimant, and determined that the Insurer had all the information necessary to make payment. The WCJ went on to find that the Insurer was aware of Claimant’s need for home health care, had been unable to provide appropriate care, as was its obligation, and had failed to live up to any of its obligations in a timely manner. A fifty percent penalty was assessed, in addition to a quantum meruit fee of $4,000.00. The Board affirmed.

On appeal, Insurer again argued that it was not obligated to make payment because the forms were improperly submitted. Claimant noted that Insurer had made payments in the past even though the requested expenses were not submitted on the proper forms. The Court relied on precedent that allowed assessment of a penalty for failure to pay bills when proper forms were not required in all instance for payment. The evidence was clear that Claimant submitted all of the necessary information in order for payment to the home health aide to be made. Accordingly, the penalty was properly assessed.

Kuzo v. WCAB (St. Luke’s Miner’s Memorial Med Center and PMA Group),
1094 C.D. 2007 (Pa. Cmwlth. 2007)

Order requiring Claimant to submit to an IRE is a non-appealable, interlocutory order.

Commonwealth Court quashed Claimant’s appeal of the WCJ’s and Board’s decision to grant Employer’s petition to order Claimant to attend and submit to a physical examination for purposes of an IRE. Claimant suffered a back injury in 1996. In 2003, the NCP was amended to include a swallowing problem and major depression as part of the description of the work-related injury. Claimant contended that Employer was not entitled to an IRE because it had failed to show that Claimant reached maximum medical improvement, and because there was no impairment rating for Claimant’s psychological injury. While the Court recognized that the question of whether an IRE is appropriate in cases where the claimant suffers from a psychological injury was a case of first impression, it held that it was bound by precedent to quash the appeal, since earlier cases had held that an order requiring a claimant to submit to an IRE is a non-appealable, interlocutory order. Accordingly, Claimant’s appeal was quashed.

LeDonne v. WCAB (Graciano Corporation),
1585 C.D. 2006 (Pa. Cmwlth. 2007)

Fatal claim petition was denied when Employer proved that paramour of wife killed Decedent so that she could receive insurance benefits; evidence of guilty verdict was admissible to support Employer’s defense.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which denied Claimant’s petition for fatal claim benefits. Decedent worked for Employer at a construction job site in New York City. Because he lived in Pittsburgh, decedent and a co-worker roomed together at a local motel. While staying there, decedent and the co-worker were shot and killed. Decedent’s widow filed for benefits on behalf of herself and Decedent’s son. During the course of litigation, the widow’s parental rights were terminated and the child was adopted by his paternal grandmother who maintained this claim on his behalf. Testimony before the WCJ revealed that Decedent was shot and killed by a paramour of his widow so that she could receive insurance proceeds. The murderer was tried and convicted and the widow also pleaded to a lesser offense. The WCJ accepted this testimony and found that Claimant was not entitled to benefits because Decedent was murdered for personal reasons that had nothing to do with Decedent’s employment. Further, the WCJ found that evidence had rebutted the presumption that Decedent was in the course of his employment when killed. The Board affirmed the decision and found that the certified copies of the guilty plea of widow and the guilty verdict of her paramour were admissible in this case and were more than sufficient to prove Employer’s personal animus defense.

On appeal, Claimant argued that the guilty verdict and plea were not admissible under the Pennsylvania Rules of Evidence. The Court dismissed this argument, noting that the traditional rules of evidence were to be relaxed in workers’ compensation proceedings. The Court ruled that the WCJ did not err in accepting the information and applying federal evidentiary standards to the proceedings. Further, the testimony of other individuals regarding the conduct of widow and her paramour, in addition to the guilty verdict and pleas was more than sufficient information to meet Employer’s burden of proof. A WCJ is permitted to make reasonable and logical inferences based on circumstantial evidence and the WCJ’s inferences in this case were sound, reasonable and supported by the evidence. Accordingly, the decisions were affirmed.

Prosick v. WCAB (Hershey Chocolate USA),
1188 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant’s petition to reinstate temporary total disability benefits was denied because it was filed more that 500 weeks after the last benefit had been received.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s petition to reinstate temporary total disability benefits. Claimant had fallen and broken his hip on the job in 1992. Claimant received temporary total disability benefits for four months, and partial benefits for another three months. Claimant worked for another several months until a second surgery, when he began receiving benefits again. Claimant returned to work fulltime in 1994. Each time Claimant returned to work, his benefits were suspended. Eleven years later, Claimant’s treating physician limited him to restricted duty due to his hip condition. Employer informed Claimant that there was no light duty position available for him. Claimant filed the instant petition seeking reinstatement of total benefits due to the lack of light duty work.

At hearing, testimony from Claimant’s doctor was presented that indicated that Claimant’s present disability was completely related to his previous work-related fracture. Employer’s medical expert testified that the work injury was too remote in time to be the cause of Claimant’s present condition. Although the WCJ accepted nearly all of the testimony of Claimant’s expert as credible, the petition was denied because Claimant had made his application for benefits more than 500 weeks after benefits had been suspended and Claimant had not received benefits within three years of the date he filed for reinstatement. The Board affirmed this decision and the Court agreed. The Court went on to distinguish the Stanek case that Claimant contended supported his decision by noting that the claimant in that case had received partial benefits for 500 weeks. The Court realized that the limitation imposed a hardship on Claimant, but cited the need of the legislature to balance the burdens of employees and employers in fashioning compensation law. Accordingly, since Claimant had not filed within the 500-week time period, his petition was properly denied.

Stehr v. WCAB (Alcoa),
1187 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant was barred from seeking reinstatement when the petition was filed more that five hundred weeks after his benefits had been suspended, and Claimant had returned to work at the same level of pay.

Commonwealth Court affirmed the decision of the WCJ, which denied Claimant’s reinstatement petition. Claimant suffered a broken leg in 1995 for which he received benefits for a two-month period prior to suspension. Claimant then returned to work at the same or greater pay. Claimant sought reinstatement nearly ten years later, alleging that his injury caused a decrease in his earning powers. The WCJ denied the petition because it had been filed more than 500 weeks after his benefits had been suspended. The Board affirmed the result, but reasoned that the petition should be denied because it was filed more than three years since the last compensation payment. On appeal, Claimant argued that his petition was timely because it was filed within three years of the expiration of the five hundred week partial disability period. The Court relied on the plain language of the Act, as well on the cases that had interpreted it to determine that if benefits had been in suspension status, the expiration of the five hundred week period operated as a bar to subsequent claims. Since Claimant had not filed his petition within five hundred weeks of the date of the supplemental agreement suspending his benefits, his claim was barred.

Mosley v. WCAB (City of Pittsburgh),
1200 C.D. 2007 (Pa. Cmwlth. 2007)

WCJ properly rejected Claimant’s argument that offset for pension benefits was only allowed in cases where claimant was receiving benefits due to an occupational disease.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s review benefit offset petition. Claimant was injured in 2002 and Employer began paying benefits. In 2005, Employer filed a petition seeking offset against the benefits being paid Claimant, since she had begun receiving pension benefits. Claimant filed the instant petition in response, arguing that Employer was not entitled to an offset, since Claimant was not suffering from an occupational disease. The parties stipulated to present this single issue before the WCJ. Claimant specifically referred to section 108 and 306 and contended that, read together, they allowed offset only for occupational disease benefits.

The WCJ rejected this contention as nonsensical and the Board agreed. The Court reviewed the plain language of section 204(a) and while the word “and” plainly meant “in addition to,” the Court was free to look to the intent of the General Assembly in this instance in order to construe the statute’s meaning. In light of the legislative history and application of the statute, the Court concluded that the there was no intent to allow offset only in cases where benefits were being received for occupational disease. The legislature’s intent has continually been to enlarge the scope of an employer’s right to an offset under section 204(a), and courts have repeatedly interpreted the language in the same manner. Accordingly, the decisions below were affirmed.

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