March 3, 2008

Digest of
Appellate Decisions
February 2008

McElheney v. WCAB (Kvaerner Philadelphia Shipyard),
15 EAP 2007 (Pa. Supreme Ct. 2008)

The Court determined that graven dry dock was a land-based site.

The Pennsylvania Supreme Court affirmed the decision of the Commonwealth Court, which held that Claimant was not entitled to concurrent compensation under the Pennsylvania Workers’ Compensation Act and the federal Longshore and Harbor Workers’ Compensation Act (LHWCA). Claimant was employed as a pipe fitter welder with Employer shipbuilder. Claimant injured his shoulder when he tripped and fell while working on a ship in dry dock.

Employer issued a “Payment of Compensation without Award” under the LHWCA, which provided compensation to maritime workers for injuries occurring on the navigable waters of the U.S. Payments were stopped a year later, in 2004, when Employer had determined that Claimant had recovered. Because he believed that he was still unable to work, Claimant filed for benefits under the state act. Before the WCJ, Claimant argued that the LHWCA did not preempt state action and claimed concurrent jurisdiction when an injury occurred on land while performing traditionally maritime functions. The WCJ ruled in favor of Employer, finding that Claimant was performing a traditional maritime function over the navigable waters of the U.S. as defined by the LHWCA. The Board affirmed this finding. Commonwealth Court reversed, holding that while recovery was barred when an injury occurred on a floating dry dock, Claimant was injured on a ship in graven dry dock and thus not afloat.

The Court did a lengthy review of the line of cases that delineated the concurrent jurisdiction of the acts and went on to determine that Claimant’s welding activities were clearly a traditional maritime function. Therefore, the location of the injury controlled what law could be applied. The Court held that a graven dry dock, by virtue of its being cut and dug out of land, was sufficiently land-based to allow for concurrent jurisdiction. The occasional flooding of a graven dry dock was insufficient to render it exclusively within the limits of the navigable waters of the U.S. Since the Court determined the location of Claimant’s injury allowed for concurrent LHWCA and Pennsylvania Workers’ Compensation Act jurisdiction, the decision of the Commonwealth Court was affirmed.

Rosenberg v. WCAB (Pike County),
17 C.D. 2007 (Pa. Cmwlth. 2008)

Employer was required to show proof as to non-existence of permanent light duty job after Claimant alleged her temporary light duty position had been filled by a permanent hire.

Commonwealth Court, in an en banc decision, vacated and remanded the decisions of the WCJ and Board, which allowed modification of Claimant’s disability benefits. Claimant was employed as a corrections officer when she injury her right knee in 2002. At the time of hearing, Claimant had not fully recovered, but returned to light duty at a clerical position with another county agency. Shortly after returning, Claimant was discharged, with Employer reasoning that she was unable to return to her original position, and since there was no provision for a permanent light duty position, her current employment was terminated. According to Claimant, she was replaced in her position by a newly-hired employee. Claimant looked for and found other part-time work. Employer conducted physical and vocational evaluations of Claimant and concluded that she was able to perform light to medium duty work; as a result, Employer filed the instant petition in July 2003.

The WCJ granted the petition, but the matter was remanded by the Board since the WCJ had failed to determine whether Employer met its burden under section 306(b)(2) of the Act. The WCJ conducted no new hearings, but relied on the letter Claimant received from Employer stating that there were no permanent light duty positions available. The order was again modified and the Board appealed this decision. On appeal, Claimant contended that Employer was required to prove that it had no positions available. Claimant argued that Employer was required to show an absence of in-house positions within a specific time frame. While the Court held that the statute did not per se place a burden of proof on Employer to show that no job existed, once Claimant raised the issue of an available job, Employer had the burden of proof to show that the job did not exist. Further, the testimony of the rehabilitation counselor relied upon by the WCJ on remand did not support Employer’s position, since the counselor had not discussed available positions with Employer. Finally, the matter was remanded to the WCJ to consider Claimant’s contention that her position was filled with a new employee. Judge Smith-Ribner issued a dissent joined by Judges Pellegrini and Friedman wherein they argued that Employer should have a duty to prove that no position was available to Claimant, rather than only be required to respond to Claimant’s allegation of an available position.

Land O’Lakes, Inc., Crawford & Company and Old Republic Insurance Company v. WCAB (Todd),
1085 C.D. 2007 (Pa. Cmwlth. 2008)

Supreme Court decision in Exel Logistics during pendency of forfeiture and reimbursement litigation did not deprive Employer of right to reimbursement, since Commonwealth Court decision affirmed in Exel Logistics was in effect at the time Employer filed petition for reimbursement.

Commonwealth Court affirmed the decision of the WCJ and Board, which affirmed the denial of Employer’s request for reimbursement from the Supersedeas Fund. Claimant sustained his injury in 2003 when he tripped on a steel beam at Employer’s business. Eighteen months after injury, Employer filed a suspension petition, alleging that Claimant refused reasonable medical treatment. Employer also sought supersedeas. The supersedeas petition was denied and Employer pursued his suspension petition. The WCJ ultimately granted a suspension and ordered a forfeiture as of the date of the filing of the petition. Employer then sought reimbursement, but was denied because there had been no finding that Claimant was not eligible for benefits or that benefits were not due.

The WCJ had found in the underlying claim that Claimant had forfeited benefits because he refused treatment. In so doing, the WCJ applied the recent decision in Exel Logistics, which had been decided during the pendency of this action. The Board affirmed, and agreed that the application of Exel Logistics was appropriate because it merely interpreted the existing case law. Before the Court, Employer argued the application of Exel Logistics was unconstitutional because it affected Employer’s substantive right to reimbursement. The Court found that the holding in Exel Logistics was the same as the Commonwealth Court holding in effect prior to the time Employer filed the forfeiture petition. Therefore the case law did not change during the pendency of the action, but was simply affirmed. The holding of Exel Logistics was properly applied to this case; since Claimant had only forfeited the right to receive benefits and was not determined ineligible to receive benefits, the reimbursement petition was properly denied.

Coyne v. WCAB (Villanova University),
610 C.D. 2007; Villanova University v. WCAB (Coyne), 710 C.D. 2007 (Pa. Cmwlth. 2008)

WCJ erred when she failed to determine whether Claimant’s discharge from employment was due to Claimant’s bad faith job performance or her work injury.

Commonwealth Court vacated the decision of the WCJ and the Board, which found Claimant entitled to benefits. Claimant injured her foot in a fall from a stool as she attempted to fix a photocopier. At the time, Claimant was working under a one-year employment contract. A few months after Claimant returned to work from her injury, but three weeks prior to the end of her contract, Claimant was terminated from her position and told to leave the workplace. Claimant was paid to the end of her contract, given severance and vacation pay, and Employer did not contest her unemployment claim.

The WCJ found that Claimant was entitled to benefits from the period of time of her termination until the time she lost her second job. Claimant was entitled to total disability for the periods she was unemployed, partial disability for her periods of employment, and Employer was entitled to credit for Claimant’s unemployment compensation and severance pay. The WCJ denied the penalty petition.

On appeal, the Board remanded the penalty petition for additional findings. The WCJ then concluded that the Employer violated the Act by failing to issue a document accepting Claimant’s work injury, and awarded a 25% penalty, as well as attorney’s fees for reasonable contest. The Board affirmed the WCJ’s decision on the claim petition, but found that Employer had reasonably contested the petitions, and although Employer had failed to issue the proper documentation, Claimant did not allege this in her petition, so she was not entitled to a penalty. Both parties appealed.

The Court found that the WCJ erred when she failed to undertake any analysis as to whether Employer’s decision to terminate Claimant was based on conduct on Claimant’s part that was tantamount to bad faith. On remand, the Court cautioned that a finding of bad faith did not need to rise to the level of willful misconduct. With regard to Claimant’s appeal, the Court held that the WCJ did not err in terminating compensation, since competent evidence existed to support the contention that Claimant was able to return to her original workload without restriction. Finally, the Court affirmed the denial of the penalty petition because Claimant failed to allege the proper violation, so Employer’s contest was reasonable. Accordingly, the matter was remanded for the WCJ to determine the basis of Claimant’s termination of employment.

Jacobi v. WCAB (Wawa, Inc.),
1110 C.D. 2007 (Pa. Cmwlth. 2007)

Absent medical testimony as to specific loss, Claimant’s testimony alone regarding his injury could not prove his claim.

Commonwealth Court affirmed the decision of Board, which reversed the WCJ’s order, granting Claimant’s review petition. Claimant was employed as a truck driver and was injured when his fingers were smashed by a freight elevator door. Claimant was paid full benefits during two periods for the year thereafter. Benefits were suspended at the time of hearing. Claimant filed his petition based on the specific loss of his right middle finger as of the day he underwent surgery, a year after the injury. Although Claimant testified to a number of things he could no longer do inside and outside of work due to the injury, evidence showed that there were a number of functions the finger could still perform.

The Board reversed the WCJ’s decision to grant the petition and held that the medical evidence did not establish that Claimant lost the use of his finger for all practical intents and purposes, or that any loss was permanent. On appeal, the Court agreed with this conclusion and noted that Claimant presented no evidence as to the degree of his impairment. The Court relied on the fact that Claimant’s treating physician had released Claimant to full duty without restrictions and indicated that Claimant had only occasional pain. While the WCJ could consider Claimant’s own testimony as to his injury, it could be presented only as further support. Instantly, when there was no medical testimony as to specific loss, Claimant’s testimony alone could not prove his case. Accordingly, the Board’s decision was affirmed.

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