November 4, 2008

Digest of
Appellate Decisions
October 2008

Crawford v. WCAB (Centerville Clinics, Inc.), 2331 C.D. 2007 (Pa. Commwlth. 2007)

Costa v. WCAB (Carlisle Corp.), 822 C.D. 2008 (Pa. Cmwlth. 2008)

Waronsky v. WCAB (Mellon Bank), 367 C.D. 2008 (Pa. Cmwlth. 2008)

Patton v. WCAB (Lane Enterprises, Inc.), 2363 C.D. 2007 (Pa. Cmwlth. 2008)

Folmer v. WCAB (Swift Tranportation), 596 C.D. 2007 (Pa. Cmwlth. 2008)

Nickel v. WCAB (Agway Agronomy), 719 C.D. 2008 (Pa. Cmwlth. 2008)

Dart Container Corporation v. WCAB (Lien), 550 C.D. 2008 (Pa. Cmwlth. 2008)

The Bullen Companies v. WCAB (Hausmann), 409 C.D. 2008 (Pa. Cmwlth. 2008)

Crawford v. WCAB (Centerville Clinics, Inc.),
2331 C.D. 2007 (Pa. Commwlth. 2007)

WCJ properly voided C&R, where Claimant died after hearing approving agreement, but before WCJ’s written decision approving the agreement was certified.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which declared null and void the C&R agreement entered into by the deceased Claimant and Employer. Claimant’s personal representative argued that Claimant’s death did not void the agreement since the requirements of section 449 of the Act were satisfied prior to Claimant’s death, even though the WCJ had not issued a decision approving the agreement until after Claimant’s death. Claimant had sustained a back injury in 2001 during the course of her employment.

At a hearing in 2005, the parties presented a C&R which resolved all issues between them. Claimant testified that she had a full knowledge and understanding of all provisions of the agreement. Claimant died four days after hearing as a result of cervical cancer. One day after that, the WCJ approved the agreement. Employer appealed the decision upon becoming aware of Claimant’s death.

The matter was remanded to the WCJ who found that Claimant had been lucid and in command of the facts at the initial hearing. Contained in the C&R was a provision wherein Claimant certified that she was suffering from no known terminal illness unrelated to her injury. Further, the agreement stated that the agreement would be void if not approved by a judge before Claimant’s death. The WCJ voided the agreement based on this specific provision and the Board affirmed.

On appeal, Claimant’s representative argued that since all the provisions of section 449 had been satisfied, the agreement should not have been voided. The Court could not agree with this contention, specifically in light of the provision that voided the agreement upon the death of Claimant. Due to this specific language, the Court could not find that the execution of the agreement and the hearing which the agreement was confirmed were sufficient to validate it, absent the WCJ’s specific written decision. Where there was no dispute as to the WCJ’s actions, and due to the plain language of the agreement, the Court had no choice but to affirm the decisions.

Costa v. WCAB (Carlisle Corp.),
822 C.D. 2008 (Pa. Cmwlth. 2008)

WCJ shall consider unemployment compensation offset despite the fact that Employer did not raise the issue at hearing on claim petition.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which awarded Claimant compensation less his unemployment compensation, and declined to award him attorney’s fees. Claimant suffered back and neck injuries on the job and was restricted to light duty. Thereafter, Claimant was laid off and collected unemployment compensation. Claimant underwent back surgery that relieved some of his pain, but when Claimant advised Employer of his post-surgical restrictions and asked to be put back to work, Employer stated it could not accommodate his restrictions.

Claimant filed this petition seeking medical benefits, disability benefits and attorney’s fees. Employer countered with a petition alleging that Claimant had failed to undergo a requested physical examination, and the matters were consolidated. Both parties submitted expert testimony through reports, and Claimant testified to the unemployment benefits he received. Both parties appealed the WCJ’s award of benefits and denial of fees. The Board affirmed the decision of reasonable contest, but remanded the matter back to the WCJ to consider the unemployment benefits.

The WCJ issued a second decision which credited Employer for those benefits, despite the fact that no evidence was submitted as to how much of the unemployment could be attributed to Employer’s contribution. The Board affirmed this second decision. Initially, the Court determined that Employer had not waived its right to offset by failing to raise the matter at hearing before the WCJ, since Claimant raised the issue in his testimony, and the WCJ was required to offset Claimant’s benefits under section 204(a). Secondly, the Court disagreed with Claimant’s contention that Employer had no grounds to contest his claim petition. Instantly, despite the general denials pleaded by Employer, there was a genuine dispute as to the nature and extent of Claimant’s cervical injury. Since the medical evidence was conflicting, Employer’s contest was, as a matter of law, reasonable.

Waronsky v. WCAB (Mellon Bank),
367 C.D. 2008 (Pa. Cmwlth. 2008)

Public parking garage owned by Employer was not part of its premises for the purposes of claim petition, when there was no requirement or incentive for employees to park there.

Commonwealth Court affirmed the decision of the Board and the WCJ, which denied Claimant’s claim petition. Claimant sought compensation for an alleged head injury with subsequent cognitive disorder that occurred in 2002. Claimant had been struck by a car on her way to work, prior to starting her work shift. The parties agreed to bifurcate the issues of compensability and disability. Claimant alleged that because she had parked in the garage provided by Employer, took advantage of payment for the garage with a pre-tax program provided by Employer, and followed an alleged recommendation by her supervisor to park in the garage due to the overnight hours she worked, she should be compensated for her injury.

The WCJ found that Claimant failed to prove that Employer had placed any requirement on her transportation and parking choices, such that the accident that occurred on Claimant’s way to work could be said to be within her scope of employment. The Board affirmed this decision. The Court reviewed case law that defined an employer’s premises for the purposes of determining whether Claimant’s accident occurred in the scope of employment. The Court agreed that, while Employer owned the parking garage, and it was used by many of its employees, it was a public garage, and Employer made no requirement, nor offered an incentive for employees to park there. Therefore, it could not be said to be integral part of Employer’s premises. Since Claimant had failed to prove the compensability portion of her claim, the matter could go no further, and the WCJ properly denied the petition.

Patton v. WCAB (Lane Enterprises, Inc.),
2363 C.D. 2007 (Pa. Cmwlth. 2008)

Presumption of causation of disease as occupational under section 301(c) was not applied when Claimant could not prove that recognized occupational disease was cause of decedent’s death.

Commonwealth Court affirmed the remand decisions of the WCJ and the Board, which denied Claimant-widow’s fatal claim petition. Decedent had worked for Employer as a welder from 1974 until 1987, when he was unable to continue working due to shortness of breath. Employer issued an NCP at the time that stated that Claimant suffered acute episodes of metal fume fever, preventing him from working in an occupation that exposed him to zinc fumes. The NCP also stated that Claimant suffered from COPD that was secondary to smoking. Decedent died in 1997. His death certificate listed his cause of death as end stage COPD. Claimant filed this petition in 1997, and alleged that the NCP incorrectly described Decedent’s injury as compensable metal fume fever.

The WCJ heard testimony from medical experts for both parties and ultimately determined that the claim was time-barred. The Court reversed on appeal and remanded the matter for the WCJ to consider the cause of death, and, if necessary, make new credibility determinations. The WCJ denied and dismissed the petitions again, finding that Employer’s experts were more credible in explaining that Decedent’s death was brought on by his smoking, not an occupational disease.

On the second appeal, Claimant argued that the WCJ did not afford Claimant the presumption of causation in section 301 (c) or give weight to the death certificate. The Court ruled that Claimant was not entitled to the presumption that Decedent’s death was a likely a result of his occupation, since the WCJ ruled that Claimant had not proven by competent evidence that Decedent suffered from any of the diseases that gave rise to the presumption. Absent such proof, the presumption was inapplicable. Secondly, the Court agreed that the death certificate was not controlling, in light of the credible testimony presented by Employer’s medical experts, whose experience in this specialized medical field was greater than that of the doctor who completed the death certificate. The Court went on to dismiss Claimant’s challenges to the WCJ’s reasoning. The Court reviewed each contention carefully, but held that any conflicts in the WCJ’s opinion did not impact on the chief determination, which was soundly reasoned. As such, the WCJ’s decision was affirmed.

Folmer v. WCAB (Swift Tranportation),
596 C.D. 2007 (Pa. Cmwlth. 2008)

WCJ properly relied on medical testimony that Claimant was exaggerating his symptoms and was fully recovered from his work injuries.

Commonwealth Court, in an en banc decision, affirmed the decisions of the WCJ and the Board, which granted Employer’s petition to terminate Claimant’s benefits. Claimant was injured in 1995 when he was struck in the face by a box of crowbars that he was unloading from his truck. In 1998, his petition for benefits was granted for his disability that was termed as “positional vertigo.” Claimant also was shown to have a cervical disc injury. Employer filed a petition in 2001, alleging that Claimant had fully recovered from his injury. This petition was denied, although the WCJ was troubled by the remoteness of Claimant’s medical evidence.

Employer filed the instant petition in 2004 and its medical expert testified that Claimant did not test positively for any of the conditions that he had originally complained of. Further, the doctor testified that he found that Claimant exaggerated to the point of faking some of his conditions. Testing of some of the nerves produce results that were inconsistent with Claimant’s continued complaints of pain. The same WCJ determined that Claimant magnified his symptoms and was a malingerer. The WCJ granted the termination petition and the Board affirmed. The Board determined that the opinions of the medical experts were legally competent and sufficient to support the WCJ’s decision.

On appeal, Claimant argued that Employer failed to show a change in Claimant’s physical condition after losing the first termination petition. The Court disagreed, and noted that the tautness that Claimant complained of and proved in the first hearing was not found to exist in the testing by Employer’s medical experts after that hearing. The Court also stated that any other holding would mean that an employer could never terminate benefits where a claimant’s injuries consisted of subjective complaints, and the credited testimony showed that claimant was faking. In so doing, the Court rejected Claimant’s argument that Employer could prove its case only by showing that: Claimant no longer had complaints; had discontinued treatment; had been filmed engaged in activities beyond his injury; or is pronounced cured by his own doctor. To accept this argument, the Court ruled required Employer to rely on a claimant to admit cessation of this injury. The WCJ properly made a credibility based on the testimony presented.

Finally, the Court distinguished this case from cases where the medical expert had denied the existence of a previously accepted injury: Employer’s expert testified only that he could not see how a work injury could have occurred. The Court found that the experts acknowledged every one of Claimant’s injuries and testified that he was fully recovered. Since the testimony was fully competent and credited by the WCJ, the benefits were properly terminated. Judge McGinley dissented, finding that the WCJ erred in relying on Employer’s medical evidence.

Nickel v. WCAB (Agway Agronomy),
719 C.D. 2008 (Pa. Cmwlth. 2008)

Medical provider’s acceptance of payment from the Department of Welfare prevented it from seeking additional payment for Claimant’s surgery from Employer.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision to grant Claimant’s penalty petition. Claimant injured his back in 2001 and filed his claim petition in 2002, Employer denied liability. During litigation, Claimant underwent two back surgeries which Employer’s insurance carrier did not pay pending litigation. Welfare paid the bill and the amount was accepted by the provider. In 2004, the parties entered into a C&R agreement which required Employer to pay Claimant’s medical bills. Two years after the agreement, DPW filed a lien for the payment made on Claimant’s earlier bills. Employer paid the lien as well as fees to Claimant’s attorney. Claimant then filed this petition, alleging that Employer was obligated to pay the full cost of the surgery, rather that the amount of payment previously agreed to by DPW. At hearing, the provider stated that the actual cost of the treatment was nearly $20,000.00 more than the amount paid by DPW, but that there was no intention to bill Claimant or any party for this difference.

The WCJ granted the petition, ordered Employer to pay the provider the difference and assessed an $8,000 penalty against Employer, since Employer failed to pay the medical expenses under section 306, as previously agreed to. The Board reversed and held that the WCJ lack jurisdiction to hear what was essentially a fee dispute. This matter was more properly heard by the Bureau of Workers’ Compensation upon the filing of a fee review application by the provider. However, since such a petition had not been timely filed, the provider had waived its objection to the amount it was paid. On appeal, Claimant asserted that the WCJ did have jurisdiction to hear the matter since Employer violated the Act and the agreement.

On appeal, the Court disagreed that the WCJ lacked jurisdiction, since the amount of the fee was not at issue. The penalty petition alleged that Employer’s refusal to reimburse the provider in accordance with the higher workers’ compensation payment schedule was a violation of the Act and the agreement. The Bureau of Workers’ Compensation hearing officers would not have jurisdiction to hear this question of law. The Court distinguished this case from similar decisions in that the provider accepted the payment issued by DPW. Since DPW was governed by various state and federal regulations, and the provider’s participation in DPW medical assistance program obligated it to accept DPW’s payment as payment in full, the provider was prohibited from attempting to collect any additional sums from any other source. Had the funds not been paid under DPW’s medical assistance program, the provider could have sought the additional payment. Since the federal and state regulations controlled, Employer could not be said to have violated the agreement and the penalty petition was properly denied.

Dart Container Corporation v. WCAB (Lien),
550 C.D. 2008 (Pa. Cmwlth. 2008)

Board was free to reject WCJ’s disfigurement award, but needed to provide an explanation for the rejection.

Commonwealth Court vacated the decisions of the WCJ and the Board, which awarded Claimant 70 weeks of compensation for a scar on Claimant’ s neck as a result of cervical spine surgery. Claimant filed a review petition for disfigurement benefits. The WCJ found that the scar was 1 ¼ inches long and ¼ inch wide and pink and red in appearance. The scar was deemed unsightly and the WCJ awarded 22 weeks of benefits. Claimant appealed, the Board agreed that the award was too low after seeing Claimant, and the 70 week award was entered.

On appeal, Employer contended that the award was not supported by case law and that the Board failed to explain the range that it set for the award. While the Court disagreed that the Board was compelled to cite written guidelines or other awards to support its modification, the Board erred in failing to state whether it rejected the WCJ’s description of the scar and in failing to explain why most WCJs would award within the 60 to 75 week range. Therefore the matter was remanded for the Board to provide an adequate explanation.

The Bullen Companies v. WCAB (Hausmann),
409 C.D. 2008 (Pa. Cmwlth. 2008)

Claimant was not required to notify Employer of occupational disease based on a suspicion, but only after that suspicion had been medically confirmed.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which awarded Claimant disability benefits. Claimant worked for Employer for 17 years mixing solvents with other products in large tanks that were open at the top. Claimant was not provided with any ventilator, mask or other breathing protection. Near the end of his employment, Claimant began experiencing kidney problems that required a transplant. Shortly after starting treatment, in 2002, Claimant retained counsel in order to determine whether these problems were work-related. In 2004, Claimant notified Employer that he had sustained a work injury in May 2002 and filed a claim petition alleging occupational disease. After consulting with experts, Claimant first learned his kidney problems were work related in March 2005. Employer’s medical expert testified that Claimant’s exposure to the solvents was not related to his disease. The WCJ credited the testimony of Claimant’s expert as well as the literature on Claimant’s condition and granted the petition. The Board affirmed, finding the decision was based on competent evidence. Employer appealed, arguing that the petition should have been denied because Claimant failed to give timely notice of his condition.

The Court relied on the Pennsylvania Supreme Court’s decision in Sell, which stood for the proposition that a claimant had 120 days to notify employer of an occupational disease only when the claimant had knowledge that the condition was related to employment. The record in this case fully supported the WCJ’s finding that Claimant did not know that his disease was job related until he was advised by his doctor in 2005. Claimant’s suspicions prior to that time did not serve to trigger the notice requirement. Finally, the Court rejected Employer’s claim that the WCJ’s decision was not properly reasoned, as it was substantiated by the evidence and the WCJ’s credibility determinations.

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