May 2, 2008

Digest of
Appellate Decisions
April 2008

Melmark Home v. WCAB (Rosenberg),
899 C.D. 2008 (Pa. Cmwlth. 2008)

WCJ erred in finding that Employer had 30 days to issue a notice of ability to return to work to Claimant, after Employer had received the medical report advising the change in Claimant’s condition; Employer was only required to notify Claimant within a reasonable time period.

Commonwealth Court vacated the decisions of the Board and the WCJ, which dismissed Employer’s modification petition. Claimant suffered a low back injury in her job as a nurse for Employer after struggling with a combative patient in 2004. In 2006, Employer filed this modification petition, alleging that work within Claimant’s restrictions was generally available as of nine months before. Claimant filed an answer denying that such work was available and asserting that Employer did not promptly send her a notice of ability to return to work. A supresedeas hearing was conducted before the WCJ, at which time Claimant moved to dismiss Employer’s petition because of its alleged failure to issue its notice of ability to return to work in a prompt manner. The WCJ granted Claimant’s motion, relying on section 306(b)(3) of the Act, which required prompt written notice of available employment. Although the term “prompt written notice” was not defined in the Act, the WCJ determined that such notice should have been within 30 days after receiving the doctor’s report of Claimant’s medical condition. The Board affirmed this decision.

On appeal, Employer argued that nothing in the Act supported the determination that notice of available employment was required to be sent within 30 days. Neither the WCJ nor the Board could point to any authority to base their decisions, aside from citing a general concept of fairness. The Court employed statutory construction principles and noted that a court was without the ability to insert words into statutory provisions where the legislature had failed to provide them. Clearly, given the numerous time limits placed in the various provisions of the Act, the General Assembly was well-versed in providing time limits in the Act. In section 306(b)(3) it clearly chose not to supply a time limit.

The Court held that it was error for the WCJ and the Board to supply their own. The Court held that the “prompt written notice” provision required an employer to give a claimant notice of the medical evidence it has received a reasonable time after its receipt so that the report does not become stale. It also required an employer to give notice to the claimant a reasonable time before the employer acted upon the information. Given this rule, the matter was remanded for the WCJ to determine what notice had been provided to Claimant and whether it was provided within a reasonable period of time. Judge Smith-Ribner dissented, reasoning that the WCJ and Board decisions were sound.

Peters Township School District v. WCAB (Anthony),
2084 C.D. 2008 (Pa. Cmwlth. 2008)

WCJ properly denied Employer independent medical test when Employer failed to offer any evidence that the test would yield useful information on Claimant’s condition.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Employer’s petition for physical exam of Claimant. Claimant was injured in 2000 with a concussion and shoulder sprain. In 2006, Employer filed this petition requesting that Claimant submit to a 72-hour ambulatory EEG. Claimant responded to the petition and admitted that he attended the medical exam, but declined to take the test upon the advice of his physician. Employer presented medical testimony that indicated that the test was necessary in order to determine whether Claimant was having actual seizures. Claimant submitted his doctor’s report that the test would not add anything to Claimant’s treatment and was of no value unless Claimant had a seizure while undergoing the test. The WCJ was persuaded by the report of Claimant’s medical expert. The Board affirmed this decision.

On appeal, Employer contended that the WCJ improperly applied the relevant legal standard and relied on incompetent evidence. The Court ruled that the WCJ properly found that Employer sought the test in order to rule out the fact that Claimant was suffering from pseudoseizures. Proper basis for denying the request existed when there had been no proof that Claimant had experienced this type of seizure in the first place. The WCJ had not required Employer to prove that Claimant would suffer such a seizure during the course of testing, instead, the Court cited Employer’s inability to offer any evidence that the testing would yield useful information. Finally, the Court dismissed Employer’s contention that the denial prevented it from obtaining an independent medical opinion when Employer’s expert was able to review Claimant’s extensive medical history and the available medical evidence. Accordingly, the decision was affirmed.

Mullen v. WCAB (Mullen’s Truck & Auto Repair),
1461 C.D. 2008 (Pa. Cmwlth. 2008)

Claimant was employer and pro­prietor of Subchaper S corporation, WCJ properly assessed his AWW at net profits rather than Claimant’s W-2 income.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which determined Claimant’s AWW for the purposes of benefits. Claimant was the president and director of his company, and he and his wife were the sole shareholders in the Subchapter S corporation. In 1994, Claimant suffered a back injury. Claimant began receiving benefits of $493.00 per week, based on a pre-injury AWW of $1,846.15. Employer’s insurer filed a petition in 1995 relying on Claimant’s 1993 and 1994 individual and 1994 corporate tax returns challenging Claimant’s AWW. The WCJ granted the petition and reduced the benefits by $83.00 per week. The Board remanded the matter for the taking of further evidence. The second WCJ agreed with Employer’s contention that the AWW should be based on Claimant’s net profits rather than his W-2 wages. The WCJ noted Claimant’s ability to manipulate figures as the president of the company, and his failure to supply complete income information at the hearing. The Board affirmed this second decision.

On appeal, Claimant argued that it was error to use his net business profits to calculate his AWW rather than the wages he received from Employer, his company. The Court declined to find that a question of law was at issue in this case. The Court held that a question of fact was at the heart of the matter. The WCJ was not bound by law only to accept the figures on the W-2 submitted by Claimant. The WCJ was empowered to assess an overall accurate measurement of the AWW based on a party’s circumstances. The Court held that the WCJ’s determination was supported by substantial evidence. Claimant possessed the complete authority to set his own compensation and had the ability to manipulate his wage statements and tax returns. Since the corporate returns disclosed a net loss that was passed on to Claimant, the WCJ properly used this number to reduce Claimant’s earnings. Absent the presentation of any additional information from Claimant, the WCJ determined a realistic measure of Claimant’s Earnings. Accordingly, the decision was affirmed.

City of Philadelphia v. WCAB (Smith),
768 C.D. 2008 (Pa. Cmwlth. 2008)

WCJ did not err in amending NCP to include additional injuries when case had been remanded for explanation of credibility.

Commonwealth Court chose to publish this January decision that affirmed the decision of the Board, which denied both Employer’s termination petition and petition to review a utilization review determination. These determinations had earlier been remanded from Commonwealth Court as a result of earlier proceedings.

Claimant suffered his back injury in June 1998. He was cleared to return to work without restriction by Employer’s doctors three months later. Claimant continued to complain of lower back and leg pain, but testing did not reveal any physical basis for the complaints. Claimant was also cleared by a second doctor of Employer.

In connection with Employer’s UR petition, Employer’s doctor testified in 2001 that the treatment by Claimant’s doctor, including oral steroids and surgery, were not necessary and were not supported by physical test results. Claimant himself testified as to continuing pain and his inability to work, and his doctors testified and explained that the nature of Claimant’s injury did not show up in testing until some time after the original injury. The WCJ denied Employer’s petitions and was affirmed by the Board.

On appeal, the Court remanded for the WCJ to explain the reasons for the credibility determinations that were made, particularly since the testimony of Claimant’s medical experts did not relate to the injury accepted in the NCP (back strain). No new evidence was submitted on remand, but the WCJ expanded on the rationale for his credibility determinations and found that Claimant had established that the NCP was materially incorrect at the time it was issued. The WCJ amended the NCP to include the injuries with which Claimant had later been diagnosed. The Court agreed that the WCJ was authorized to add injuries to the NCP since Claimant’s evidence established that he sustained additional injuries at the time of the original work incident.

Further, the WCJ acted correctly in dismissing the UR petition despite the contention that Claimant may have been recovered from his work injury, since Employer’s expert was not deemed credible, and Employer had failed to meet the burden that Claimant was recovered from his original work injuries.

Finally, the Court dismissed Employer’s contention that the WCJ had acted outside the scope of the remand order in amending the NCP. The remand opinion made specific note of the fact that the medical testimony did not relate to the claimed injury. Nothing in the remand order prohibited amendment of the NCP and again denying the petition. Accordingly, the order was affirmed.

Diehl v. WCAB (IA Construction and Liberty Mutual Insurance),
1507 C.D. 2008 (Pa. Cmwlth. 2008)

Traditional administrative pro­ce­dure, including either labor market survey or work availability analysis, was required in consideration of Employer’s petition to modify impairment status when Em­ploy­er’s IRE request was not made until after the expiration of the 60-day period following the 104-week total disability period.

Commonwealth Court reversed the decision of the Board, and directed it to reinstate the WCJ’s decision to deny Employer’s petition to modify benefits. Claimant injured his foot in 1999 and began receiving benefits. At Employer’s request, an IRE was performed in 2002 and the rating doctor found an impairment rate of 28%. Employer filed this petition in 2006, seeking a modification in Claimant’s disability status from total to partial. The WCJ ruled that since Employer’s IRE request was not made until after the expiration of the 60-day period following the 104-week total disability period, Employer would have to seek reduction of Claimant’s benefits status through the traditional administrative process instead of the automatic self-execution modification provided for in section 306(a.2). The WCJ then concluded that Employer was required to either perform a work availability analysis or a labor market survey. Since Employer failed to show that there was suitable work available to Claimant within his limitations, the WCJ denied the petition.

The Board disagreed and ruled that the filing of the modification petition was adequate as a matter of law, and no labor market survey was required where no actual modification of the benefit rate was sought. The Board went on to find that Employer had proven the reduced impairment rating and was entitled to a change in Claimant’s benefits status. Claimant filed this appeal.

The Court agreed with the WCJ’s rationale, and reasoned that the administrative process proposed by Employer and the Board was nothing more than a filing of a petition and a perfunctory appearance before the WCJ; procedures which only slightly exceeded the self-executing requirements. An extra level of paperwork was not the result anticipated by the Supreme Court when it required traditional administrative process in the controlling Gardner case. Accordingly, the matter was remanded for reinstatement of the WCJ’s order. Judge Simpson wrote a concurring opinion.

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