February 4, 2008

Digest of
Appellate Decisions
January 2008

Ropoch v. WCAB (Commonwealth of Pennsylvania/DPW),
1638 C.D. 2007 (Pa. Cmwlth. 2008)

Offset for Social Security retirement benefits was allowed regardless of whether the benefits had been automatically converted from disability benefits or separately applied for.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which denied Claimant’s review petition. Claimant sustained a back injury in 1997 and began receiving benefits. Six years later, Employer filed a notice of benefit offset as a result of Claimant’s receipt of Social Security disability. Claimant filed the instant petition alleging that the offset was inappropriate because the disability benefits were converted to old age benefits automatically and not by his choice, thus he did not voluntarily remove himself from the workforce. The WCJ concluded, and the Board and the Court agreed that section 204(a) of the Act made no distinction between application for retirement benefits or automatic conversion by Social Security. While sympathizing with Claimant’s argument, the Court could not contravene the clear language of section 204(a). Since the section provided for an offset for receipt of old age benefits received after the injury, the offset was valid.

M & B Inn Partners, Inc. v. WCAB (Petriga),
1201 C.D. 2007 (Pa. Cmwlth. 2007)

“Personal animus” defense did not apply where hotel guest accosted Claimant without intent to harm her, and without the existence of any earlier relationship between the two.

Commonwealth Court affirmed the opinion of the Board, which affirmed and modified the WCJ’s decision to grant Claimant’s claim petition. Claimant alleged that she sustained psychological injuries after a guest at Employer’s hotel physically and verbally accosted her on two occasions. Claimant worked as an administrative assistant when a guest grabbed her abdomen and buttocks and told her he would be in his room all night. Claimant complained to her supervisor and was assured that the guest would be removed. The guest was not removed and went on to grab Claimant again the next day. The manager then told the guest to leave, the police were summoned and criminal charges were filed against the guest.

Claimant was prescribed a sedative to help her sleep and was referred to a psychologist for treatment. Claimant was referred to Employer’s physicians, who removed her from work and sent her to her psychologist for treatment. Claimant’s mental state deteriorated thereafter and she was unable to return to work. A year later, despite various treatments, Claimant still suffered from panic attacks and insomnia. Claimant’s psychologist diagnosed her condition as chronic PTSD due to her failure to improve. Employer’s expert agreed that the incidents could cause anxiety, but not to the disabling degree that Claimant alleged.

Sysco Food Services of Philadelphia v. WCAB (Sebastiano),
817 C.D. 2007 (Pa. Cmwlth. 2008)

Injury as a result of horseplay was compensable, since WCJ properly determined that Claimant was a victim of the activity, not a mutual participant.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s claim petition. Claimant alleged that he was injured during the course of horseplay on the job, which he did not initiate, but was merely victimized by. Employer countered by acknowledging the injury, but charging that it was the result of mutual horseplay, which was prohibited by work rules. The WCJ accepted Claimant’s testimony as credible, and found him to be a victim, rather than a willing participant. The WCJ further noted the testimony of other witness who stated that such horseplay was a common occurrence in their workplace. The Board affirmed this decision.

Westmoreland County v. WCAB (Fuller),
1277 C.D. 2007 (Pa. Cmwlth. 2008)

Once earlier WCJ’s decision expanded the scope of the recognized work injury, medical expert’s failure to testify as to the status of that injury was sufficient reason to deny Employer’s later termination petition, even though the NCP had not been formally amended.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which denied Employer’s termination petition. Claimant suffered an injury working as a nurses’ aide while moving a patient. Employer issued an NCP in 1994. Employer filed a termination petition in 1998, which was denied two years later. During the course of the proceedings, the WCJ indicated the injury was different than the one specified on the NCP, but did not formally amend the NCP to include the additional injury. Employer filed a second termination petition in 2003. Employer’s medical expert testified that Claimant had recovered from all the injuries listed in the NCP, but there was no testimony as to the additional injury identified in the first hearing. The WCJ granted the petition, but the matter was remanded by the Board when it was determined that the WCJ had erred with regard to evidentiary issues. On remand, a new WCJ determined that Claimant’s injury included all the injuries described at hearing in 2000. Since Employer’s medical expert did not testify as to the injuries not in the NCP, the petition was denied. The Board affirmed the decision.

On appeal, Employer contended that the WCJ erred when she determined that her prior decision expanded the scope of the recognized work injury. Even though the description had been expanded, Employer argued that its expert’s testimony was still sufficient to support termination. The Court held that once the WCJ found additional injuries during the course of the first termination petition, those injuries became accepted injuries. Since Employer’s expert did not recognize the additional injuries as related to the work injury, his testimony was legally insufficient to support a termination of benefits. The expert commented that he did not think Claimant had even suffered the additional injury. Finally, the Court supported that the first remand made by the Board was properly made in the interest of justice. Claimant and her counsel submitted sworn affidavits to the Board that the WCJ had told them that Claimant’s testimony was not necessary at hearing. When the WCJ later took an adverse inference due to Claimant’s decision not to testify, the Board properly remanded the matter based on Claimant’s reasonable reliance on the WCJ’s off-the-record statements. Accordingly, the decision was affirmed.

Employer’s blanket denial of injury on Bureau’s pre-printed NCD form did not support award of penalty, when Employer clearly denied that Claimant’s pre-existing degenerative condition was the cause of disability, not the work injury.

Commonwealth Court affirmed the decisions of the Board, which awarded Claimant disability benefits, but denied him an award of penalty and unreasonable contest fees as ordered by the WCJ. Claimant suffered an ankle injury in 2003. Claimant was treated at a hospital and saw Employer’s panel physician, who diagnosed an ankle sprain. An NTCP was issued thereafter. Claimant was cleared to return to light duty two months later and full duty one week after that. Employer then issued a notice stopping temporary compensation and a notice of compensation denial. On the NCD, Employer denied that the injury was the cause of the disability in a check-off box, and stated that Claimant’s job had been eliminated due to economic factors. Claimant filed a claim petition alleging an ankle sprain and an aggravation of a previous degenerative joint disease. Several months later, Claimant filed a second petition, alleging the same disabling condition, but as a result of repetitive stress on the ankle due to work conditions. Claimant also filed a penalty petition, alleging that Employer improperly filed an NCD, since the medical evidence indicated a compensable injury. The WCJ found that Claimant had proven his injury and that Employer had failed to present a reasonable contest to the first petition. The WCJ awarded nearly $15,000.00 in attorney’s fees and imposed a fifty per cent penalty on the unpaid balance of compensation.

On appeal, the Board affirmed the substantive decision, but reversed the penalty and fees assessments. Both parties filed the instant appeals. Initially, the Court agreed that the WCJ had clearly stated his objective bases for his credibility determinations regarding the competing medical experts. Further, the rest of the WCJ’s decision was supported by competent evidence. With regard to the attorney’s fees, the Court found Employer’s contest to be reasonable, since Claimant was alleging a permanent, disabling ankle injury, and Employer believed the injury to be temporary in nature, allowing Claimant to return to work, but for the elimination of his position. The Court noted that even if Employer had accepted the milder form of the injury, Claimant would still have needed to hire counsel to litigate the permanent disability he ultimately sought.

Finally, the Court upheld the denial of penalty, finding that Employer’s use of the Bureau’s pre-printed form denying disability from the injury was not improper. This was consistent with Employer’s position that the cause of Claimant’s problems was not the work incident but rather pre-existing ankle problems. The fact that Employer referenced another ground for declining liability does not alter the conclusion, even though the elimination of Claimant’s position in itself was insufficient for declining liability; this reason did not conflict with the contest based on causation of disability. The Court also noted that the WCJ’s failure to specify the statutory or regulatory source of the duty violated by Employer also supported the decision to vacate the penalty. Accordingly, the decisions were affirmed.

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