July 2, 2008

Digest of
Appellate Decisions
June 2008

City of Pittsburgh v. WCAB (McFarren),
1701 C.D. 2007 (Pa. Cmwlth. 2008)

Board failed to adequately explain increase in disfigurement award from six to thirty-five weeks.

Commonwealth Court vacated the decision of the Board, which increased Claimant’s disfigurement award from six to thirty-five weeks. Employer contended that the increase was not supported by substantial evidence. Claimant suffered a neck injury on the job in 2004 that caused him to undergo a discectomy fusion. Two years later, Claimant filed the instant petition. After hearing, the WCJ issued a decision that found that the injury had left a serious and permanent scar on the left side of Claimant's neck. The WCJ described the scar as one and one-half inches long, with only one inch visible, being slightly lighter than the rest of Claimant’s skin. Based on this, the WCJ awarded six weeks of compensation. Claimant filed an appeal and argued that this award was significantly lower than what other WCJs would order. The Board viewed the scar and agreed that most WCJs would award between 30 and 40 weeks of compensation. The Board then modified the order to 35 weeks.

On appeal, the Court acknowledged that the Board was allowed limited authority to review the amount of WCJ awards for disfigurement in order to promote uniformity in the awards throughout the state. However, the Board could only modify an award if it concluded after its own view of the evidence that the WCJ capriciously disregarded competent evidence by entering an award significantly outside the range of benefits that most WCJs would order. Further, if the Board made such a decision to amend the award, it was required to explain how it arrived at its determination. After reviewing the record, the Court concluded that the Board did not adequately explain its modification. Although the Board accepted the WCJ’s characterization of the scar, it increased the award with no explanation other than that the proper range for the scar was 30 to 40 weeks. Accordingly, the matter was remanded for the Board to explain its decision to increase the award.

Paul v. WCAB (Integrated Health Services),
16 C.D. 2008 (Pa. Cmwlth. 2008)

Employer was not required to show that Claimant’s condition had been improved to support termination, where no prior adjudication had established the nature and extent of Claimant’s injuries.

Commonwealth Court affirmed the decision of the WCJ and the Board, which granted Employer’s termination petition. Claimant suffered an injury when she fell on the ice during her course of employment in 2000. Claimant continued to work for another four months before increasing pain caused her to stop. Employer issued an NTCP which converted to an NCP by operation of law for left wrist, thigh and ankle contusions, as well as a right knee contusion. Four years after Claimant stopped working, Employer filed this petition, alleging that Claimant was fully recovered. Claimant responded that while she was no longer actively treating with a doctor, she was unable to do the heavy lifting that her job required. Claimant’s expert testified that she did not fully recover from her work injury, and that she was restricted to light duty work, lifting no greater than 15 pounds. Employer’s expert testified that, after an independent medical exam, he believed that Claimant’s complaints of pain were out of proportion to the injury based on surgical histories. The WCJ and the Board credited the testimony of Employer’s expert and granted the termination petition.

In affirming the decision, the Court distinguished this case from holdings in the Supreme Court’s decisions in Lewis and Hebden. Instantly, there had been no prior adjudication establishing the nature and extent of Claimant’s injuries. Therefore, Employer’s expert was free to disagree with the earlier opinions of other doctors as to the nature and extent of Claimant’s injuries. The expert did acknowledge the injury as described by the NCP and the WCJ was free to credit the expert’s testimony. Finally, the Court agreed that the WCJ issued a reasoned decision. Since there had been no other litigation, the WCJ was not required to determine whether Employer’s medical expert showed that Claimant’s condition had been improved to support the termination. The Court found that since the WCJ summarized the testimony of Claimant and the doctors who testified, and set forth an explanation as to why Employer’s doctor’s testimony was found more credible, the decision was properly reasoned.

YDC New Castle-PA DPW v. WCAB (Hedland),
230 C.D. 2008 (Pa. Cmwlth. 2008)

Employer improperly required Claimant to use his own sick leave the first two days of his injury where Claimant’s testimony and his doctor’s notes indicated that Claimant was unable to work from the infliction of the injury.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Claimant’s claim petition. Claimant alleged a neck injury after being attacked by a student in 2004. Claimant missed two months of work due to the injury. The NCP allowed benefits for all but the first two days after injury. Claimant was required to use his own sick time since he had called out from work on those days. Claimant filed a petition for benefits for those two days. Employer did not dispute the injury, but challenged entitlement to those two days due to the absence of medical documentation for that period. Claimant testified that his injury occurred on a Friday and the doctor’s office was closed during the weekend. Claimant did not go to an emergency room since he did not think his condition was an emergency. Claimant did introduce documentation from his doctor which stated that he was disabled from the date of his injury. While the WCJ noted Employer’s policy requiring documentation that supports an absence from work from the first day, he concluded that Claimant had met this burden. Although Employer was concerned about abuse of its sick policy, the WCJ found that those concerns were not present in the instant case.

In affirming the decision, the Court ruled that the WCJ acted properly in relying on Claimant’s testimony as to his inability to work upon the infliction of the injury. Coupled with his doctor’s notes that Claimant was restricted from work upon the date of the injury, the WCJ did not err in ordering payment of benefits from the date of injury. The Court dismissed Employer’s concerns that the ruling would permit an injured worker to wait to seek medical treatment following a work injury and still receive full benefits. Further, even though a collective bargaining agreement called for the medical policy, any work rule that called for a delay in benefits was void by law. The Court was confident that the burden placed on a Claimant to prove an entitlement to benefits would protect any fraudulent claims. Accordingly, the order was affirmed.

Lindtner v. WCAB (Acme Markets and Broadspire Services, Inc.),
2080 C.D. 2007 (Pa. Cmwlth. 2008)

WCJ did consider all medical evidence submitted in denying Claimant UR petition, not just the report finding Claimant’s treatment to be unreasonable.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s petition for review of utilization review determination. Claimant was injured in 1991 and Employer acknowledged lumbar disc disease. Employer filed a UR request in 2004 seeking to determine the reasonableness of treatment by Claimant’s doctor. The URO requested the doctor’s records and he turned over progress notes from a single day. The treatment was determined to be unreasonable based on the failure to provide documentation for a meaningful review. However, the face sheet of the report failed to include the check off which indicated that treatment had been rejected due to the failure to produce records. Claimant then filed a UR petition seeking review. The petition was denied due to a determined lack of jurisdiction on account of the failure to produce the medical records. The Board held that the lack of jurisdiction finding was error, but agreed with the WCJ’s alternate finding that Employer met its burden.

On appeal, Claimant contended that the Board failed to consider all the evidence, especially all the medical evidence submitted by Claimant at the hearing before the WCJ. Contrary to this assertion, the Court noted several instances throughout the WCJ’s decision where she considered all the evidence, including the medical evidence supplied by Claimant. The WCJ merely credited the evidence supplied by Employer over that of Claimant. Since she was the arbiter of witness credibility and the weight to be accorded evidence, her decision was to be followed. Accordingly, as Employer met its burden, the UR petition was denied.

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