September 3, 2008

Digest of
Appellate Decisions
August 2008

Albert Einstein Healthcare v. WCAB (Stanford),
2189 C.D. 2007 (Pa. Cmwlth. 2008)

Claimant bears the burden of proving disability and date of disability cannot be established by inference or without expert testimony.

Commonwealth Court reversed the decision of the Board with respect to the start date of Claimant’s disability. Claimant had injured her back when riding an elevator at work that jerked and fell suddenly. Claimant continued to work and suffered further injury when forced to physically restrain a patient. Several months after that, Claimant called out of work for several days. When she returned to work, Claimant found she was unable to fulfill her duties and subsequently filed this claim petition.

At hearing, Claimant presented the testimony of her treating physician, who began treating her one year after Claimant filed her petition. The expert testified that Claimant had been unable to work at any time that she was under his care. The WCJ granted the petition, but found that Claimant had not proven a disability prior to her treatment with her medical expert. The Board affirmed the decision granting the petition, but modified the start date to the time when Claimant first called out sick from work.

On appeal, the Court restored the WCJ’s decision, reasoning that Claimant bore the burden of establishing her right to receive benefits, and since she presented no expert testimony that she became disabled prior to the time she was under her testifying expert’s care, the WCJ was correct to find benefits only from that time that evidence proved Claimant’s disability. Accordingly, the order was reversed to adjust the date of disability.

Claimant’s belief of compensable hearing loss does not trigger notice provision of section 311 until such loss is confirmed by a health care provider.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s hearing loss claim petition. Claimant had worked for Employer from 1965 through the course of these proceedings, and had regularly been exposed to consistent loud noise. In 2004, Claimant filed this petition alleging compensable hearing loss caused by long-term exposure to hazardous noise. The petition was the first notice received by Employer of Claimant’s hearing loss. Employer challenged the timeliness of Claimant’s notice of his injury, and alleged that Claimant knew or should have known of his work-related impairment in 2002, when he was first examined by his medical expert. Claimant had worn hearing aids in both ears since 1999, but his hearing loss was not confirmed as a work-related loss by his doctor until 2004.

Under section 311, Claimant was obligated to advise Employer within 120 days of his injury in order to be eligible for benefits. The Board relied on the Socha I case in holding that Claimant’s belief that his hearing loss may be work related did not trigger the notice period under section 311. On appeal, the Court agreed that a claimant could not be charged with knowledge of such an injury until that loss was confirmed by a health care provider. Instantly, since Claimant filed his petition within days of being advised by his doctor that the hearing loss was work-related, he was well within the notice requirement of section 311. The Board’s finding was supported by substantial evidence, and therefore could not be disturbed by the Court.

Combine v. WCAB (National Fuel Gas Distribution Corporation),
539 C.D. 2008 (Pa. Cmwlth. 2008)

Impairment rating was improperly determined when examining physician first failed to find that Claimant had reached his maximum medical improvement.

Commonwealth Court reversed the decisions of the Board and the WCJ, which granted Employer’s modification petition changing Claimant’s disability status from total disability to partial disability based on an impairment rating of twenty percent. Claimant sustained a knee injury in 2000 and Employer began paying benefits. Six years later, Claimant underwent an IRE and was determined to have a twenty percent impairment rating. Claimant contended that modification was not appropriate because he had not reached his maximum medical improvement (MMI) at the time of examination.

On review, the Court noted that section 306(a.2) required that the impairment determination be based on the AMA’s guide to evaluation of impairment. That guide dictated that an impairment evaluation could only be given after the MMI had been determined. Testimony from the evaluating physician clearly indicated that Claimant’s MMI had not been addressed when the impairment rating was calculated, as the doctor did not believe such assessment was required under Pennsylvania law. The Court countered that the law directed a physician to follow the AMA guidelines that  required an MMI assessment. Since the expert unequivocally stated that he had not determined whether Claimant had reached his MMI, no basis existed for modification of Claimant’s benefits and the decisions below were reversed.

Jamison v. WCAB (Gallagher Home Health Services),
399 C.D. 2008 (Pa. Cmwlth. 2008)

Claimant’s employment for other employers did not disqualify her from being considered a traveling employee of Employer absent proof that Claimant had abandoned her duties for Employer during the course of her travel.

Commonwealth Court reversed the decisions of the Board and the WCJ, which dismissed Claimant’s claim petition. The WCJ had determined that Claimant was not a traveling employee for the purposes of the Act and therefore could not be compensated for injuries incurred in a car accident on her way to work. Claimant worked full time as a home health nurse for Employer. Claimant was not required to report to Employer’s location at anytime during her work day, she completed her paperwork at home, and she was compensated for mileage from visit to visit. Claimant was also employed by two other companies, one of which paid her for a 40-hour work week. On any given day, Claimant could be working for all three employers, all with their permission. Claimant was involved in the accident on her way to her first client’s home. Employer denied that Claimant was a traveling employee and the WCJ agreed, reasoning that, on any given day, Claimant could be working for any one or all three of her employers.

On appeal, Claimant argued that the evidence did not support the WCJ’s finding. The Board reviewed the requirements of a traveling employee and listed them as whether a claimant’s job duties included travel, whether a claimant worked on an employer’s premises, or whether a claimant had no fixed place of work. But for the issue of her multiple employers, the Board reasoned, there would be little doubt that Claimant was a traveling employee. Since she met the definition of a traveling employee, the burden shifted to Employer to prove that Claimant was not working for Employer during her drive from her home to a patient’s home. No evidence was presented to show that Claimant had abandoned her duties for Employer during the drive; in fact, the accident occurred on Thanksgiving Day and no evidence had been introduced to show that Claimant performed any work that day for either of her two other employers. Accordingly, the decisions were reversed and the matter was remanded for the WCJ to establish Claimant’s entitlement to benefits.

National Fiberstock Corporation (Greater New York Mutual Insurance Company),
1456 C.D. 2007 (Pa. Cmwlth. 2008)

Claimant’s petition for reinstatement of benefits was not barred by res judicata, even though Claimant had been adjudicated as recovered eight years earlier; reinstatement petition involved a different factual question about a different time period and therefore was distinct from the termination litigation.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which reinstated Claimant’s benefits and imposed a penalty on Employer. Claimant had first been injured in 1992 with an injury described as “numbness in fingers and hand with pain in wrist, right wrist” by Employer. Claimant underwent surgery and returned to work in 1993 until Employer closed the plant a year later and resumed paying Claimant benefits. Employer filed a termination petition in 1997, and although Claimant still complained of numbness and tingling at hearing, the WCJ granted the petition.

While the termination petition was being litigated, Claimant underwent surgery for her condition a second time. Employer adjusted that bill, but did not pay it. Claimant filed a penalty petition prompting payment by Employer, but the WCJ granted the petition on account of a 42-month delay. Employer was ordered to pay a penalty and interest. In 2005 Claimant filed this reinstatement petition and another penalty petition, alleging that Employer had failed to pay the previously-ordered penalty.

At hearing, Claimant presented testimony of a doctor who first examined her in 2005 and indicated that even if Claimant had recovered from her injury in 1997, her condition had changed and her carpal tunnel syndrome had returned. The doctor determined that Claimant’s present disability was causally related to the work injury.

On appeal, Employer contended that the petition was barred by res judicata: since Claimant had complained of the same symptoms at the 1997 termination proceeding and was found to be fully recovered at that time, Claimant was precluded from re-litigating her condition a second time. The Court discounted this argument, finding that the issues of the two petitions were not identical because they involved factual questions about Claimant’s condition at two unrelated time periods. Claimant had proven the worsening of her condition in 2002 by precise and credible evidence. The WCJ reasonably accepted the testimony of Claimant’s expert because his opinion had presumed a full recovery by Claimant in 1997 and objective evidence documented the return of the condition in 2005.

Finally, the WCJ properly awarded additional penalties, since Employer had failed to pay the previously-ordered interest. Awarding a second penalty was not impermissible because Employer committed two separate violations. Accordingly, the decision was affirmed.

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