January 7, 2008

Digest of
Appellate Decisions
December 2007

J.G. Furniture Division/Burlington and Liberty Mutual Insurance Co. v. WCAB (Kneller), 149 MAP 2005;
J.G. Furniture Division/Burlington and Liberty Mutual Insurance Company v. WCAB (Kneller), 150 MAP 2005 (Pa. Supreme Ct. 2007)

Peterson v. WCAB (Wal Mart and CMI, Inc.), 782 C.D. 2007 (Pa. Cmwlth. 2007)

Sign Innovation v. WCAB (Ayers), 681 C.D. 2007 (Pa. Cmwlth. 2007);
Ayers v. WCAB (Sign Innovention), 748 C.D. 2007 (Pa. Cmwlth. 2007)

Sears Logistic Services v. WCAB (Preston), 631 C.D. 2007 (Pa. Cmwlth. 2007)

Schenck v. WCAB (Ford Electronics), 1011 C.D. 2007 (Pa. Cmwlth. 2007)

Ingram v. WCAB (Ford Electronics & Refrigeration Corporation, and Ford Electronics/Self-Insured), 491 C.D. 2007; 492 C.D. 2007; 493 C.D. 2007 (Pa. Cmwlth. 2007)

Ballerino v. WCAB (Darby Borough), 1113 C.D. 2007 (Pa. Cmwlth. 2007)

Visteon Systems v. WCAB (Steglik), 1179 C.D. 2007 (Pa. Cmwlth. 2007)

Stock v. WCAB (Food Chek Shopping Bag), 1296 C.D. 2007 (Pa. Cmwlth. 2007)

Kane v. WCAB (Glenshaw Glass Company), 1081 C.D. 2007, (Pa. Cmwlth. 2007)

J.G. Furniture Division/Burlington and Liberty Mutual Insurance Co. v. WCAB (Kneller),
149 MAP 2005;
J.G. Furniture Division/Burlington and Liberty Mutual Insurance Company v. WCAB (Kneller),
150 MAP 2005 (Pa. Supreme Ct. 2007)

The Pennsylvania Supreme Court held that an amputation occasioned by an earlier injury, for which a final receipt was executed, is neither a recurrence nor an aggravation of the initial injury, and constitutes a separate compensable specific loss injury, prompting a new date of injury and calculation of benefits.

The Pennsylvania Supreme Court affirmed the decision of the Commonwealth Court, the Board and the WCJ, which granted Claimant’s petition for benefits. Claimant suffered an injury to his left index finger in 1976. Claimant received total benefits until 1978, when the parties executed a final receipt and Claimant returned to work. In 1983, Claimant filed a petition to set aside the final receipt, alleging continued impairment of his finger. Over the next ten years, several decisions were issued by various judges, only to be remanded by the Board. In 1996, the Board again remanded the matter for conclusions of law concerning the statute of limitations for filing a petition to set aside a final receipt. Before a decision was rendered, Insurer filed a petition for suspension of benefits, alleging that Claimant sustained a specific loss of use of the entire finger in 1984 when the finger was amputated. The parties stipulated that Claimant was entitled to specific loss benefits, which rendered the litigation moot.

The only issue before the WCJ was whether the benefits should be calculated based on his AWW at the time of the original injury in 1976 or the date of amputation in 1984. Commonwealth Court determined that 1984 was the proper date for calculation, but held Insurer responsible for payment, as it was responsible for coverage at the time of amputation. Insurer appealed, arguing that the injury was sustained at the time a previous insurer was responsible for coverage. Insurer argued that case law determined that, in specific loss cases, the date of injury is the date of the initial injury, so that the original compensation rate applies. The Court disagreed with this interpretation, distinguishing the cited cases as ones dealing with an employer’s entitlement for credit.

The Court concluded that the amputation was not an aggravation of Claimant’s original finger injury, but a separate occurrence. Instantly, where Claimant had not been receiving benefits at the time of amputation, the suggestion that the date for determination of the AWW should be in 1976 was not logical. Thus the Court ruled that when an amputation was occasioned by an earlier injury, for which a final receipt was executed, it was neither a recurrence nor an aggravation of the initial injury; it constituted a separate compensable specific loss injury and prompted a new date of injury and calculation of benefits. Accordingly, the decision was affirmed and Insurer was obligated to make payment. Justices Saylor and Castille dissented, arguing that the amputation was a result of the original work injury.

Peterson v. WCAB (Wal Mart and CMI, Inc.),
782 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant’s appeal to Commonwealth Court was quashed as interlocutory, since the Board had remanded matter to WCJ to determine litigation costs.

Commonwealth Court quashed Claimant’s appeal of the WCJ and Board decision that awarded her disfigurement benefits and credited Employer for overpayment of disability benefits against the disfigurement award. Claimant challenged the WCJ’s calculation of the overpayment and the finding that the benefits remained suspended on and after Employer’s issuance of a notice of suspension for failure to complete and return Form LIBC-760. Employer countered that Claimant’s appeal was from an interlocutory order and was therefore unallowable. Claimant was injured in 1995; she received total and partial benefits until reinstatement in 2003, when she underwent shoulder surgery. A year later, Employer issued a notice of suspension, due to Claimant’s failure to return the LIBC-760 pursuant to section 311.1(g) of the Act. Shortly thereafter, Employer filed to suspend benefits, alleging Claimant’s full recovery. Claimant responded by filing a claim for disfigurement benefits.

The WCJ granted the suspension petition after Claimant’s earnings and record of unemployment benefits were not submitted for the time after surgery. The suspension was presumed to remain in effect due to the lack of evidence that Claimant submitted earnings data of Form LIBC-760. As a result, Claimant was determined to have been overpaid, even taking into account an award for disfigurement. The Board agreed that Employer was entitled to an overpayment due to Claimant’s failure to report her earnings and unemployment benefits on the Bureau’s verification form. The Board affirmed the order and remanded the matter for determination of an award of litigation costs to Claimant.

On appeal, Claimant argued that the WCJ erred in his overpayment calculation. Employer argued that the matter was not ripe for appeal because the Board had directed the WCJ to allow Claimant to submit proof of litigation costs. The Court agreed because the WCJ was required to exercise administrative discretion in permitting Claimant to submit litigation costs and in making a determination based on those costs. Further, postponing an appeal until after the WCJ had issued another decision would not prejudice Claimant, since the original grounds for appeal remained. Accordingly, because Claimant’s appeal was not permitted as of right under Rule 311(f), the appeal was quashed.

Sign Innovation v. WCAB (Ayers),
681 C.D. 2007 (Pa. Cmwlth. 2007);
Ayers v. WCAB (Sign Innovention),
748 C.D. 2007 (Pa. Cmwlth. 2007)

Employer was entitled to file a modification petition despite Claimant’s impairment rating of fifty percent.

Commonwealth Court affirmed the WCJ’s denial of attorney’s fees to Claimant and reversed the denial of Employer’s modification petition. Claimant suffered his injury in 2002. An NCP was issued describing the injury as an arm and wrist fracture. After Claimant had received 104 weeks of total disability, he underwent an IRE, the result of which was an whole person impairment rating of fifty percent. A year later Employer filed this modification petition, alleging that work was generally available to Claimant. The WCJ denied the petition as a matter of law, concluding that Employer was not entitled to proceed with the petition because the IRE had determined that Claimant was fifty percent impaired, and, as such, could be presumed to be totally disabled. The WCJ further concluded that Employer failed to establish a reasonable contest. The Board affirmed the denial of the modification petition, but determined the contest to be reasonable. Both parties appealed.

On appeal, Employer argued that the IRE determination was irrelevant to its ability to pursue modification. Employer contended that it should have had an opportunity to present evidence to overcome the presumption of total disability. Claimant countered that proceeding with a hearing would render the presumption of disability meaningless. The Court agreed with Employer’s contention that the degree of an employee’s impairment did not necessarily determine whether an employee was disabled under the Act and capable of performing some type of work. Thus, Employer was free to prove that Claimant possessed an earning capacity through a modification petition, if the petition was properly filed within 60 days after the receipt of 104 weeks of total disability. The decision to dismiss the modification petition was error, and the matter was remanded for a hearing on the merits. In light of the vacation of the decision below, Claimant was not successful in his litigation and the award of attorney’s fees was error.

Sears Logistic Services v. WCAB (Preston),
631 C.D. 2007 (Pa. Cmwlth. 2007)

WCJ could not include additional injuries in the NCP during the course of litigation without making specific findings and determinations.

Commonwealth Court reversed the decision of the WCJ and the Board, which denied Employer’s termination petition. Claimant had been injured in 1993 and received either full or partial benefits for twelve years before Employer filed the instant termination petition. Employer’s medical expert testified that Claimant’s description of pain was consistent with arthritic changes in his knee, rather than any trauma or injury. Further, the doctor testified that the 1993 injury did not aggravate Claimant’s degenerative condition, and that he had fully recovered from the work injury. Claimant’s own medical expert testified that he was unable to ascribe a percentage of causation of Claimant’s current knee condition to the work injury, pre-existing arthritis and Claimant’s obesity. The WCJ accepted the testimony of Claimant’s treating physician and found that there was a reasonable nexus between the accepted work injury and the treating physician’s diagnosis. Further, Employer was determined to have failed to meet its burden of proving the Claimant had fully recovered from his work injuries.

On appeal, Employer argued that both experts had agreed that Claimant had recovered from the bruised knees and a right shoulder strain, the accepted work injuries. The Court reviewed the relevant case law and reasoned that, while the WCJ had the authority to amend the NCP during the course of the proceedings, to do so in the instant case was error, where there was no specific conclusion that Claimant had satisfied his burden of proof of the additional injuries. Since the WCJ failed to make the necessary findings for the proper application of the law, the matter was remanded with the specific instructions for the WCJ to make additional findings and conclusions as to the amendment of the injuries in the NCP as it relates to the outstanding termination petition.

Schenck v. WCAB (Ford Electronics),
1011 C.D. 2007 (Pa. Cmwlth. 2007)

Employer was prohibited from unilaterally denying payment for one doctor’s treatment based on a UR determination of treatment provided by another doctor.

Commonwealth Court vacated the decisions of the WCJ and Board, which denied Claimant’s penalty petition. Claimant had suffered her injury in 1985 and Employer had paid benefits until 1997 when the benefits were commuted. Employer remained obligated to pay reasonable medical expenses. In 1996, Employer filed a UR request for treatment Claimant received and the treatment was ultimately deemed to by unreasonable. Claimant then filed a review petition that was settled by agreement, allowing for Claimant to visit the doctor in question once per month for examination purposes only. Any other treatment or testing by the doctor was to be pre-approved by the Insurer. Claimant then treated with the doctor until 1997. In 2004, Claimant returned to the doctor with the intention of receiving treatment. Finding the doctor had moved from that location, Claimant treated twice with a doctor who had replaced him. Employer declined to pay for these visits based on the prior UR determination, alleging that the treatments were essentially the same. Claimant filed the instant penalty petition, which the WCJ denied, ruling that the UR decision found the treatment itself unreasonable, and was not conditioned solely on the doctor administering the treatment. The Board affirmed this decision.

On appeal, Claimant argued that the UR decision was limited to the treatment given by the first doctor, not to the treatment in general. Absent a timely request for UR and without a showing that the treatment was unrelated to the work injury, Claimant asserted that denial of her penalty petition was improper. The Court agreed with Claimant: Employer was prohibited from unilaterally denying payment for one doctor based on the UR determination of treatment provided by another doctor. Nothing in the earlier agreement reached between the parties could be interpreted as prohibiting any similar treatment prospectively. Accordingly, the matter was remanded to the WCJ to reconsider a determination of penalties.

Ingram v. WCAB (Ford Electronics & Refrigeration Corporation, and Ford Electronics/Self-Insured),
491 C.D. 2007; 492 C.D. 2007; 493 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant could not bring a fatal claim petition where Decedent had executed a C&R during her lifetime waiving all present and future claims.

Commonwealth Court affirmed the decisions of the WCJ and the Board and denied Claimant’s fatal claim petition. Claimant filed on behalf of his grandmother, who had adopted him shortly before her death. Decedent had sustained separate wrist/carpal tunnel injuries in 1989 and 1995. Decedent last worked in 1995 and four months thereafter filed a claim petition alleging that she had contracted an asbestos-related occupational disease impacting on her ability to breathe effectively. Three years later, Decedent and Employer entered into a C&R resolving the liability for the wrist and carpal tunnel injuries, as well as the occupation disease claim. Decedent waived all past and future rights to link any alleged wage loss to the alleged injuries and disease. Decedent also waived any rights to medical treatment. More than 300 weeks after her last day of work, Decedent died from lung cancer and Claimant filed the instant petition three years thereafter. The WCJ held that the C&R prevented any claims; further, Decedent’s occupational disease was never adjudicated or agreed to be compensable. Additionally, the WCJ found that the claim had been filed more than 300 weeks after the last date of hazardous exposure.

On appeal, Claimant argued that the C&R only barred decedent’s lifetime claims, and did not prevent the adjudication of a fatal claim petition. Claimant further argued that the filing of the lifetime claim triggered the requisite notice to preserve the fatal claim petition. The Court adopted both reasons as set forth by the WCJ for denial of the petition. The Court stressed that the Legislature intended C&R’s to have the finality of regular civil settlements and serve as a permanent release from all future claims. Of equal weight was the fact that Decedent’s occupational disease was never proven at hearing or accepted by Employer. Therefore, the filing of the petition after the expiration of the 300-week period also prevented its determination. Finally, the Court held that the WCJ did not err in declining to hold a hearing on Claimant’s petition, as the dismissal was fact-based and the legal ambiguity in section 301(c)(2) as asserted by Claimant did not need to be determined. Accordingly, since no cause of action existed by statute or agreement, the order was affirmed.

Ballerino v. WCAB (Darby Borough),
1113 C.D. 2007 (Pa. Cmwlth. 2007)

WCJ was not permitted to stack volunteer firefighter’s employment wages with statutory amount of compensation allowed in calculating to determine final amount of benefits.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Claimant’s claim petition and awarded benefits based on the statewide average weekly wage. Claimant was a volunteer firefighter who was injured during the course of fighting a fire. A notice of temporary compensation payable was issued using the statutory formula for volunteer firefighters injured in the line of duty. Claimant filed the instant petition seeking to increase that compensation, arguing that his weekly earnings should have been added to his presumed statutory wage to calculate compensation. The WCJ held that the Act did not permit stacking and allowed the statutory amount. The Board affirmed this decision. On appeal, Claimant argued that previous cases that prohibited stacking were wrongly decided, and failure to stack violated his equal protection and due process rights under the Pennsylvania and U.S. Constitutions. Claimant asserted that section 601 of the Act established a minimum compensation rather than a maximum, as interpreted by the WCJ. The Court reaffirmed the holding that volunteer firefighting did not allow for a finding of “concurrent contract” of employment as allowed under section 309(e) of the Act. The Court noted that Claimant received compensation in an amount greater than if he had been injured at his employment. The Court could not find that the legislature’s policy decision in setting a fixed amount was unjust. Finally, the Court dismissed Claimant’s constitutional challenge, finding that section 601 of the Act was rationally related to furthering the public interest by removing a possible deterrent to citizens providing a valuable volunteer service. As such, the section could not be said to violate equal protection, and the order below was affirmed.

Visteon Systems v. WCAB (Steglik),
1179 C.D. 2007 (Pa. Cmwlth. 2007)

Claimant’s doctor’s testimony was credible as to injuries not previously recognized, when doctor related the new injuries back to the original work injuries.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which denied Employer’s petition to terminate benefits. Claimant began experiencing pain on the job in 1995, as a result of the stretching, twisting and lifting required by her job. Until 2003, Claimant experienced varying periods of disability. Employer’s plant physician removed her from the job in 2003. Despite a supplemental agreement, Employer was reluctant to pay Claimant’s bills for treatment. Claimant filed a claim petition later in 2003 and two separate penalty petitions as a result of the failure to pay medical bills. Employer responded with a petition to terminate benefits. The WCJ ultimately granted Claimant’s claim petition, but denied the penalty and termination petitions. Employer again filed a termination petition, after Claimant submitted to an IME, the resulting diagnosis of which was that Claimant had fully recovered. After hearing, the WCJ accepted the testimony of Claimant and her doctor, finding it more persuasive than that of the doctor who performed the IME.

On appeal, Employer claimed error in the WCJ’s acceptance of the testimony of Claimant’s doctor. Employer argued that the doctor testified to numerous conditions not previously recognized as compensable by way of earlier agreement or WCJ’s decision. Upon reviewing the doctor’s testimony, the Court found that any new condition the doctor had testified to was always related back to Claimant’s original work injuries. Further, the fact that the doctor had testified that Claimant had not recovered from the original injuries was sufficient to support the WCJ’s denial of the termination petition. Additionally, the Court found that the WCJ’s decision was sufficiently reasoned to allow for review by the Board, since the bases for decision were plainly set forth. Accordingly, the denial was affirmed.

Stock v. WCAB (Food Chek Shopping Bag),
1296 C.D. 2007 (Pa. Cmwlth. 2007)

Payment of disfigurement benefits did not serve to extend the statue of limitations under section 413.

Commonwealth Court affirmed the decisions of the WCJ and Board, which dismissed Claimant’s petition to review benefits, since it had not been timely filed. Claimant was injured in 1995 and his benefits were commuted in 1997 with a lump sum payment of $100,000. In 1999, Claimant filed a petition to review, seeking specific loss benefits for scarring and disfigurement caused by surgeries required to treat his injury. That petition was granted and Employer paid additional benefits. Claimant then filed two identical petitions seeking to reinstate total disability benefits as a 1999 date. The WCJ held that the petitions were barred by the statute of limitations, since it had been more that three years since compensation had been paid. Claimant argued that the payment of the specific loss benefits served to extend the time period for filing the petitions. The Board upheld this decision. On appeal, Claimant contended that a dismissal on this basis was in contravention of the plain language of section 306(c) of the Act, which characterized specific loss benefits as compensation. The Board disagreed and noted that the purpose of section 413(a) was to encourage the prompt and final resolution of cases. Barring actions filed after three years from the last payment made pursuant to an NCP, gave a certainty and finality to actions as contemplated by section 413(a). Further, an award of disfigurement benefits did not review or establish Claimant’s disability status. Since no compensation was made based on Claimant’s disability status after the statute of limitations had expired, Claimant’s petitions were properly dismissed.

Kane v. WCAB (Glenshaw Glass Company),
1081 C.D. 2007, (Pa. Cmwlth. 2007)

Claimant could not seek reinstatement of suspended benefits while he received ongoing benefits for another injury.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s reinstatement petition. Claimant sustained a right shoulder injury in 1991 and received total disability payments for a short period. Four years later, Claimant injured his left shoulder, received total disability benefits again and returned to work, but not to his regular duty job. In 2000, Claimant filed a claim petition for a new injury to his right shoulder and a reinstatement petition alleging, in the alternative, a reoccurrence of his 1991 left shoulder injury. The WCJ determined that Claimant sustained a new injury to his right shoulder and awarded benefits for a two-month period. Employer ceased operations in 2004 and Claimant’s modified job was eliminated. Claimant filed the instant reinstatement petition in 2006 seeking a supplemental agreement reinstating total disability, but with no payment since he was receiving benefits due to another injury with Employer.

The WCJ determined that Claimant was really seeking to escape the effects of having the weeks he was in suspension status for the 1999 injury counted against his allotment of five hundred weeks of partial disability. The WCJ concluded that the Act did not allow for a “stay” as sought by Claimant, and denied the petition. The Board affirmed the decision. Claimant argued that the Clawson decision by the Pennsylvania Supreme Court controlled the matter. Clawson held that when two injuries are each totally disabling, a claimant may receive benefits for only one injury. When the second injury occurs, the insurer responsible for payment of benefits for the first injury continues to be liable. The claimant’s benefits for the second injury should be put in suspension status until the entitlement to benefits for the first injury changes. While the Court acknowledged that this decision seemingly controlled the instant case, it held that the fact that Claimant’s benefits for his right shoulder injury were already in suspension at the time the reinstatement petition was filed distinguished Clawson. Even if the WCJ had granted Claimant’s petition, such action would have been a nullity, since Claimant’s benefits for his right shoulder would have to be immediately suspended. Accordingly, the decision was affirmed.

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