October 3, 2008

Digest of
Appellate Decisions
September 2008

Ersico Industries, Inc. and Inservco Insurance Services, Inc. v. WCAB (Luvine), 657C.D. 2008 (Pa. Cmwlth. 2008)

Hansen v. WCAB (Stout Road Associates), 524 C.D. 2008 (Pa. Cmwlth. 2008)

Scott v. WCAB (Ames True Temper, Inc.), 647 C.D. 2008 (Pa. Cmwlth. 2008)

Ersico Industries, Inc. and Inservco Insurance Services, Inc. v. WCAB (Luvine),
657C.D. 2008 (Pa. Cmwlth. 2008)

Employer could not use previously-excluded failed drug testing in support of its petition to terminate Claimant’s benefits.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision to suspend Claimant’s disability benefits. In so doing, the Board contended that Employer was barred from using the results of Claimant’s drug testing against him, as they had been barred from use in prior claim petition litigation.

Claimant had been injured in 1997, sustaining a left knee and finger amputation injury. After the injury, Claimant had been drug tested in accordance with Employer’s policy. That drug test showed positive results for marijuana and cocaine. Employer denied benefits and terminated Claimant’s employment. Claimant filed a claim petition which was denied by the WCJ and sustained by the Board. On appeal, the Court reversed, ruling that Employer failed to establish the required chain of custody for the urine sample on which the drug testing was performed. As a result, Claimant received disability benefits.

Employer later filed the instant petition, alleging that Claimant had been released to full-time, heavy-duty work, which would allow him to perform his pre-injury job, but for his termination for criminal conduct and his violation of Employer’s policy. Claimant answered that Employer was collaterally estopped from making these arguments by the earlier decision to exclude the drug test information. The WCJ accepted the medical testimony of Employer’s expert and ruled that Claimant was unable to assume his former position because of his violations of Employer’s policy. The Board reversed, ruling that Employer was collaterally estopped from relitigating the drug issue or presenting additional evidence to establish a chain of custody for the urine sample.

On appeal, the Court reviewed the principles of collateral estoppel and concluded that Employer had been given a full and fair opportunity during the course of the previous litigation to establish the chain of custody of the sample. Once given that opportunity, collateral estoppel prevented Employer from getting a second chance to present additional evidence to support its position. Accordingly, the Board’s decision was affirmed.

Hansen v. WCAB (Stout Road Associates),
524 C.D. 2008 (Pa. Cmwlth. 2008)

Employer reasonably contested claim petition, where Claimant’s own medical records did not connect her carpal tunnel syndrome to her employment at the time Employer issued its notice of compensation denial.

Commonwealth Court affirmed the decision of the WCJ and the Board, which ruled that Employer had presented a reasonable contest to Claimant’s claim petition. Claimant had been hired to work as a waitress for Employer and her duties included carrying trays loaded with food and clearing tables. Claimant worked a second waitressing job at the same time, but that job did not require her to carry trays of food or clear tables. After a year of employment, Claimant was diagnosed with carpal tunnel syndrome. Six months after first experiencing symptoms, Claimant underwent surgery and returned to work after a few months. Employer issued a notice of compensation denial, averring that Claimant did not suffer a work related injury. Claimant later filed this claim petition when a second surgery disabled her. When she was able to return to work, she did not return to Employer.

Employer contended that the carpal tunnel injury was a condition the 21-year old Claimant suffered prior to her employment. At hearing, Claimant denied this contention and offered her doctor’s report to support her position. The WCJ found in Claimant’s favor, but held that Employer presented a reasonable basis for contest. On appeal, Claimant argued that the contest was based on after-acquired evidence, since the IME was conducted two months after Claimant’s doctor released her to return to work, and some nine months after Employer issued the notice of compensation denial. At the time the notice was issued, Claimant’s medical records did not contain evidence establishing a causal relationship between her work and her carpal tunnel syndrome. Considering the records available at the time of the initial denial, the WCJ did not err in finding that Employer had a factual basis to contest a claim petition at the time of Employer’s notice of denial. Further, the report of Claimant’s medical expert based Claimant’s injury solely on her work as a waitress, and since Claimant simultaneously worked another waitressing job, a contest by Employer was not unreasonable. Accordingly, the decision was affirmed.

Scott v. WCAB (Ames True Temper, Inc.),
647 C.D. 2008 (Pa. Cmwlth. 2008)

Although Claimant may have been in violation of Employer’s specific safety regulations, he was still entitled to specific loss benefits because his injury occurred in the performance of his job duties, not in activities unrelated to his employment.

Commonwealth Court reversed the decisions of the Board and WCJ, which denied Claimant’s claim petition. Claimant alleged a specific loss of a right finger in 2006 while attempting to remove a piece of metal that became stuck in a machine he was using while working for Employer. At hearing, Claimant described in detail the nature of the malfunction and the steps he took to correct it. Employer presented several witnesses to demonstrate that the machinery was safe and Claimant had violated work rules in the method he had taken to unjam the machine, which led to his injury. The WCJ credited the Employer’s witnesses and found that Claimant’s injury was a result of his failure to follow safety rules. The Board affirmed the decision.

On review, the Court noted that the exception provided by the violation of a positive work rule was as an exception so narrow that a claimant must have been involved in an activity at the time of the injury so disconnected from his regular work such that he could be considered nothing more than a stranger to an employer. None of the steps taken by Claimant, while not necessarily prescribed as safe by Employer, could be said to be so disconnected from his work duties because Claimant was attempting to unjam Employer’s machinery. Since the testimony of Employer’s experts suggested other methods that Claimant could have taken, but did not state that these other methods were mandatory, Claimant’s actions could not characterize him as a stranger. Finally, even though Claimant had been discharged from his employment for testing positive for marijuana, this discharge did not prevent the award of benefits because Claimant had sought specific loss benefits. The matter was remanded to the WCJ for an assessment of costs, fees and an assessment of benefits for an appropriate healing period.

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