December 2, 2008

Digest of
Appellate Decisions
November 2008

Repash v. WCAB (City of Philadelphia), 114 C.D. 2008 (Pa. Cmwlth. 2008)

Jones v. WCAB (City of Chester), 621 C.D. 2008 (Pa. Cmwlth. 2008)

Bingnear v. WCAB (City of Chester), 335 C.D. 2008 (Pa. Cmwlth. 2008)

Weney v. WCAB (Mac Sprinkler Systems, Inc.), 678 C.D. 2008 (Pa. Cmwlth. 2008)

Commonwealth of Pennsylvania/Department of Public Welfare v. WCAB (Harvey), 802 C.D. 2008 (Pa. Cmwlth. 2008)

Repash v. WCAB (City of Philadelphia),
114 C.D. 2008 (Pa. Cmwlth. 2008)

Board erred in reinstating WCJ’s initial decision rather than crediting the findings made as to Claimant’s disability on remand decision.

Commonwealth Court reversed the decision of the Board, which reinstated the WCJ’s initial decision to deny Claimant’s claim petition, and reversed the WCJ’s remand decision that granted the claim petition. Claimant had been employed as a firefighter for more than 36 years when he began to experience chest pains upon exertion in 2001. After experiencing pain at work, Claimant was referred to a cardiologist who admitted him to the hospital and performed an angioplasty. Claimant did not return to work and filed his claim, alleging occupational disease in the nature of heart disease occurring during the course of his employment. Claimant continued to work in another light duty job in another county.

Claimant’s expert testified that Claimant’s pain experienced at work was the triggering event that precipitated his medical care. Further, the expert cited Claimant’s exposure to noxious firefighting smoke as a causative factor for atherosclerosis. Employer’s expert pointed to the other risk factors for heart disease and to the fact that Claimant had experienced chest pain prior to the work incident. The WCJ determined that Claimant had failed to present evidence that causally related his exposure to smoke as a firefighter to his cardiovascular incident. The WCJ did not make a finding as to whether Claimant was disabled as a result of his heart disease.

On review, the Board remanded the matter for the application of the rebuttable presumption of work-relatedness under section 301(e) of the Act. On remand, the WCJ applied the presumption and concluded that Claimant had met his burden of establishing a compensable injury. The second time, the testimony of Claimant’s doctor was accepted because he was more familiar with Claimant than Employer’s expert, who conducted only a records review. Employer appealed, arguing that Claimant had again failed to prove disability. The Board agreed and reinstated the WCJ’s initial decision.

On appeal, Claimant argued that the Board erred in ignoring the WCJ’s second decision that found that Claimant was disabled from his job by his heart disease. The Court pointed out that the WCJ’s initial decision looked past the issue of whether Claimant’s heart disease disabled him from firefighting. At that time, the WCJ only accepted the opinion of Employer’s expert as to the causation of Claimant’s heart disease. No testimony was elicited at the first hearing on Claimant’s actual ability to work. On remand, the WCJ weighed the credibility of the experts as to causation and made a finding that Claimant’s expert was more credible on the issue, since Employer’s expert gave no opinion as to Claimant’s ability to work and Employer submitted no rebuttal evidence. The Court therefore reversed the Board’s decision and remanded the matter for an award of benefits.

Jones v. WCAB (City of Chester),
621 C.D. 2008 (Pa. Cmwlth. 2008)

WCJ had jurisdiction to rule on whether benefit offset in Claimant’s CBA violated the Act.

Commonwealth Court reversed the decision of the Board, which held that the WCJ lacked jurisdiction to entertain Claimant’s review petition. Claimant filed a petition to review his benefit offset. Claimant’s police pension was being offset by 100% of Claimant’s workers’ compensation benefits for his service-connected disability. The collective bargaining agreement (CBA) submitted by Employer indicated that Employer was permitted to apply such a credit. The WCJ found that that specific provision of the CBA violated the Act and was not binding. Claimant’s petition was granted and the WCJ ruled that Employer was entitled to an offset of the benefits to the extent that the pension funds were funded by Employer. The Board reversed this decision, holding that the issue concerned Claimant’s pension benefits, not his compensation benefits, so that the WCJ had no jurisdiction to decide Claimant’s petition.

On appeal, Claimant urged that the WCJ did have jurisdiction to determine whether the Act was being violated by the CBA. The Court noted that neither the WCJ nor the Board had jurisdiction to rule on matters that related to benefits other than workers’ compensation benefits. However, the WCJ may be permitted to rule on questions that would ordinarily be outside his jurisdiction when addressing an alleged entitlement under the Act.

The Court noted that statutory provisions of the Act dealt with the interaction of benefits and terms of collective bargaining agreements. Since the WCJ was charged with guarding the workers’ compensation system, it was appropriate to determine whether the 100% pension offset in effect reduced Claimant’s workers’ compensation benefits by taking a greater credit than was allowed under the Act. The WCJ did not interpret the CBA, since the plain language of that agreement called for the 100% offset. The Board erred in its decision, the WCJ did have jurisdiction to determine the matter. Due to a sparse record below, the matter was remanded for the WCJ to conduct further proceedings.

Bingnear v. WCAB (City of Chester),
335 C.D. 2008 (Pa. Cmwlth. 2008)

Although WCJ had jurisdiction to rule as to whether benefit offset allowed by Claimant’s CBA was permissible under the Act, a complete record must be created by the WCJ in order to provide for proper review.

Commonwealth Court vacated the decision of the Board, which reversed the WCJ’s decision granting Claimant’s petition for review. Employer had offset Claimant’s pension benefits by the amount that he was receiving in compensation. The Board relied on the fact that the CBA that governed Claimant’s employment allowed for 100% deduction against his pension on account of workers’ compensation benefits. The Board determined that the agreement did nothing to diminish Claimant’s rights under the Act, only to diminish his right to receive pension benefits.

On appeal, Claimant argued that Employer could only reduce his pension benefits to the extent that it funded the pension fund, as called for by the Act. Initially, the Court determined that the WCJ had jurisdiction to hear Claimant’s petition, even though issues in a collective bargaining agreement are generally left to an arbitrator’s interpretation. The WCJ was charged with guarding the Workers’ Compensation system, and even though it was Claimant’s pension benefits that were being reduced, the reduction was based on his workers’ compensation, and, in effect, served to reduce that compensation. Therefore, the Court reasoned, the WCJ had jurisdiction to hear the petition for review.

On the merits of the petition, while the Court found that the CBA allowed Employer to offset Claimant’s pension benefits on account of his receipt of benefits, the sparse record created by the WCJ did not allow the Court to conduct a proper review, in that there was no indication as to when Claimant was injured, when he began receiving benefits and in what amount. Further, there was no testimony to document the method and amount by which the pension benefits were being reduced. Accordingly, the decision was vacated for the Board to remand the matter to the WCJ to create a proper record.

Weney v. WCAB (Mac Sprinkler Systems, Inc.),
678 C.D. 2008 (Pa. Cmwlth. 2008)

Claimant was barred from amending NCP a second time to include a neck injury, when NCP had been amended days before, and neck injury was known to Claimant at the time of the injury.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision to grant Claimant’s second petition for review. Claimant had sustained an injury to his shoulder in 2005 after a fall from a ladder. Employer acknowledged the injury through an NTCP, which was later converted to an NCP. Six months later, Claimant filed a review petition seeking to amend the NCP to include additional injuries to his shoulder. The parties stipulated to include the proposed injuries, and the agreement was adopted by the WCJ. Eleven days after that agreement was approved, Claimant filed this petition seeking to include neck injuries. Employer answered the petition and argued that Claimant was barred by the doctrine of technical res judicata. The WCJ took testimony, including that of the parties’ medical experts, and granted Claimant’s petition to amend the NCP.

The WCJ failed to address Employer’s res judicata argument. The Board agreed with the argument and concluded that Claimant was barred from bringing the second petition, since the injuries were known to Claimant at the time of filing and settlement of the first petition. On appeal, Claimant argued that technical res judicata should not apply, since the first review petition dealt with further injuries to his shoulder and the second petition alleged neck injuries. The Court agreed since the subject matter of both petitions was the nature and extent of the injuries that Claimant suffered as a result of the fall. The ultimate issue at both times was whether the NCP accurately reflected the nature and extent of the injuries. Although Claimant did not pursue the issue of his neck injury during the first litigation, the testimony elicited at the second hearing made it clear that he should have done so: Claimant testified to suffering neck pain after the fall and reported this pain to his treating physicians at that time. Therefore, since he knew of his neck injury at the time he signed the stipulation, the second petition was barred by technical res judicata.

Finally, while Claimant correctly cited section 413(a) as giving a WCJ the ability to amend an NCP, the Court reasoned that that power was granted in order to provide quick and certain benefits to claimants. Applying the section to this case would cause an opposite result; Claimant would be allowed to litigate his case in a piecemeal manner that would waste time and resources. Accordingly, the Board’s decision was affirmed.

Commonwealth of Pennsylvania/Department of Public Welfare v. WCAB (Harvey),
802 C.D. 2008 (Pa. Cmwlth. 2008)

Actuarial expert’s use of assumed return rate in calculating pension contribution was appropriate and based on precedent.

Commonwealth Court reversed the decision of the Board, which remanded the case back to the WCJ to take additional evidence on the amount of credit Employer could claim against the compensation owed to Claimant on account of his pension benefits. Claimant had been injured in 2001 and began receiving benefits. In 2005, Employer issued an offset notice based on Claimant’s receipt of his pension. Claimant filed this review petition to challenge the offset. Employer presented evidence to determine the amount it contributed to the pension and Claimant presented no evidence.

The WCJ denied the petition and credited the testimony of Employer’s witnesses, including an actuary. The Board remanded the matter, finding that the WCJ failed to make any critical findings of fact or credibility determinations. Particularly, the Board directed the WCJ to make findings regarding the appropriate credit based on the historical rates of return of Claimant’s defined contribution plan.

Initially, the Court determined that the order was reviewable, since the original decision would become moot and unreviewable once the WCJ made new findings. On the merits, the Court held that the Board erred in ignoring the WCJ’s credibility determinations and in holding that the WCJ failed to make critical findings of fact. The Court relied on precedent that allowed expert actuarial opinion to establish Employer’s contribution to Claimant’s retirement benefit. In previous cases, the same experts testified as to Employer’s contribution, using the same calculations, and those calculations were upheld on appeal. Finally, the Court corrected a typographical error included in the WCJ’s order and reinstated it.

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