December 13, 2009

Digest of
Appellate Decisions
November 2009

Presby Homes and Services v. WCAB (Quiah), 978 C.D. 2009 (Pa. Cmwlth. 2009)

Bentley v. WCAB (Pittsburgh Board of Education), 1560 C.D. 2008 (Pa. Cmwlth. 2009)

Leisure Line, Adventure Trails, Coach USA Company v. WCAB (Walker); Elmore Walker v. WCAB (Leisure Line/Adventure Trails/Coach USA), Nos. 2174, 2434, 2230 (Pa. Cmwlth. 2009)

Giant Eagle v. WCAB (Givner), 813 C.D. 2009 (Pa. Cmwlth. 2009)

Presby Homes and Services v. WCAB (Quiah),
978 C.D. 2009 (Pa. Cmwlth. 2009)

Offer of modified duty was valid even when it contained a provision that the job offered could be changed at any time because Employer had not made the offer in bad faith, and Claimant was not without recourse if she could not perform the position if it was changed.

Commonwealth Court affirmed and significantly modified the decisions of the Board and the WCJ, which granted Claimant’s claim petition. Claimant was injured at work in June of 2007. The notice of temporary compensation described her injury as a lumbar sprain. Shortly thereafter, Claimant filed a claim petition alleging lower back and left wrist injuries. Two months later, Employer issued a notice stopping the temporary compensation, and alleged that Claimant failed to return to the modified-duty position she was offered.

Claimant contended that she could not accept the position due to the ongoing pain she experienced. Claimant presented the testimony of her doctor to support her position and Employer presented the testimony of the doctor who performed the IME, who testified that Claimant was able to perform the modified work full-time.

While the WCJ accepted this testimony as to Claimant’s ability to perform the modified position, the WCJ found that the provision found in the four-page job description sent to Claimant by Employer that called for the duties and hours to be changed at anytime nullified any offer Employer had made. The WCJ went on to find that Claimant had met her burden that she had sustained a disabling work injury and was entitled to benefits. The Board affirmed this decision.

On appeal, Employer argued that the qualifying language was boilerplate in nature and should not serve to invalidate the entire offer. The Court agreed and ruled that a “totality of circumstances” approach should be taken when considering the validity of the modified position offer. The Court noted that the WCJ had raised this issue sua sponte absent the presentation of any evidence regarding the effect of the provision. The “at-will” portion of the offer merely confirmed Pennsylvania law that Claimant’s position could be terminated for any or no reason and was not bad faith on the part of Employer.

Similarly, reserving the right to change Claimant’s duties implied that those duties would still be within the restrictions prescribed by Employer’s IME. If they were not, Claimant had recourse by filing a petition to reinstate her benefits. Therefore, the grant of benefits was affirmed, but only for the closed period from the date of injury to the date that Claimant failed to report to the modified job.

Bentley v. WCAB (Pittsburgh Board of Education),
1560 C.D. 2008 (Pa. Cmwlth. 2009)

Notice of ability to return to work sent within seven weeks after Claimant’s competency exam met the promptness requirements of the Act, particularly when Claimant could show no prejudice.

Commonwealth Court again affirmed the decisions of the Board and the WCJ after Claimant’s request for reconsideration. The underlying decisions granted the modification petition of Employer and determined that Employer had promptly provided Claimant with a notice of ability to return to work. Further, the Court concluded that Claimant was not entitled to litigation costs, even though the Board changed the effective date of his modification of benefits.

Claimant was injured in 2001 and Employer issued a NTCP describing the injury as a shoulder strain. The notice was converted to a notice of compensation payable. Claimant was released by his doctor to perform light duty in 2003 and Employer’s vocational expert found ten qualifying jobs that had an ability to earn Claimant all but $200 of his benefit rate. Employer sought to modify the benefits as of the date of Claimant’s examination by his doctor. Claimant contended that Employer did not have any qualifying light duty positions.

At the hearing, Employer’s workers' compensation adjuster claimed to have sent Claimant a notice of ability to return to work upon receiving his doctor’s report. The WCJ granted Employer’s petition and rejected the testimony of Claimant and his vocational expert. The benefits were modified as of the date Employer claimed it sent the notice of ability to return to work.

On appeal, Claimant argued that Employer failed to prove that it sent such a notice. The matter was remanded for the taking of additional evidence which ultimately supported the date alleged by Employer. Claimant took another appeal and noted that Employer’s expert’s testimony indicated that eligible jobs were available at a later date, therefore the Board amended the modification to that later date.

On appeal, the Court ruled that Employer promptly sent Claimant the notice of ability to return to work, since the credited testimony of Employer’s workers' compensation adjuster and its vocational expert supported the finding that the notice was sent sometime during a seven-week period. This time frame met the Act’s requirement that the notice be sent promptly. Further, Claimant had alleged no prejudice by the timing of the notice. The evidence also supported the finding that available work was within Claimant’s geographic area. Finally, the Court declined to award Claimant litigation costs due the change in modification costs, since that changed was based largely on a technical error. Therfore, the decisions below were affirmed.

Leisure Line, Adventure Trails, Coach USA Company v. WCAB (Walker);
Elmore Walker v. WCAB (Leisure Line/Adventure Trails/Coach USA),

Claimant was not entitled to compensation for injuries suffered in accident on commute to work from home, since Claimant’s contract did not provide for any allowance for travel.

Commonwealth Court reversed the decisions of the WCJ and the Board, which granted Claimant’s claim petition. Claimant worked for Employer as a bus driver. Claimant was injured in a car accident in 1999 on his way to work. While the accident occurred in Pennsylvania, Claimant successfully sought benefits in Delaware, where he resided. Six years later, Claimant sought benefits in Pennsylvania.

Claimant’s petition recited no factual allegations to support the conclusory statement that Claimant had been injured in the scope of his employment. Employer did not file a timely answer and Claimant moved that all facts pleaded in the claim petition be deemed admitted. Employer objected to the motion since the claim petition had contained incorrect and misleading information.

The WCJ conducted a hearing and Employer presented evidence that showed that Claimant was in possession of all the information that it had excluded in his claim petition. Further, the WCJ ruled that Claimant’s compensation included compensation for Claimant’s travel time, as outlined in the collective bargaining agreement in effect in 1999, even though a copy of that agreement was not entered into evidence. The WCJ failed to award Claimant counsel fees, ruling that the contest was reasonable.

Both parties appealed and the Board affirmed, even though Employer had obtained a copy of the collective bargaining agreement and sought a remand to the WCJ to take further evidence. Both parties filed appeals from the Board’s decision. Employer argued that the Board erred in failing to allow another hearing to introduce the collective bargaining agreement, and in finding that Claimant’s travel time was included in his scope of employment.

Initially, the Court determined that Claimant failed to prove that his travel to work was exempted from the usual exclusion from compensation under the Act. Although the WCJ relied on Claimant’s testimony regarding compensation for travel time in the collective bargaining agreement, Claimant was also required to prove that a travel allowance was related to the actual expense and time involved in Claimant’s commute, and that Employer provided or controlled the means of the commute. Claimant provided no proof as to either of these requirements. In fact, Claimant testified to the contrary, that the pay for the bus route he drove was the same flat rate per day, regardless of how long the run took or where the driver lived.

Finally, the Court found that Claimant was not entitled to benefits because his route was an unpopular one, since the Act allowed no travel exception for such circumstances. Therefore, the decisions of the Board and the WCJ were reversed, and Claimant’s petition was denied.

Giant Eagle v. WCAB (Givner),

WCJ properly maintained Claimant’s medical benefits while her wage loss benefits were suspended for failing to appear at an IME.

Commonwealth Court affirmed the decision of the WCJ and the Board, which granted Employer’s suspension petition as it related to Claimant’s wage loss benefits, but continued her medical benefits.

Claimant suffered an injury in 1998 for which she received benefits. The benefits were modified to partial benefits in 2001, and those benefits were modified by two later agreements. In 2007, Employer filed a modification petition alleging that Claimant was able to return to modified work with Employer and had failed to do so.

The WCJ ordered Claimant to appear at an IME, and when she failed to attend, Employer filed the instant suspension petition. The WCJ granted the petition until such time as Claimant appeared for the IME. Employer appealed the continuation of Claimant’s medical benefits despite the suspension of wage loss benefits and argued that suspension of benefits under section 314(a) of the Act required the suspension of medical benefits.

Although noting this was an issue of first impression, the Court relied on a footnote in the O’Brien case which dealt with the definition of compensation under section 413 of the Act. In that case, the Pennsylvania Supreme Court held that where “liability had already been determined…the term ‘compensation’ could refer to the wage loss benefits only.” The Court declined to find that the Board had committed an error of law in relying on this holding.

Finally, the Court held that suspension of either wage loss or medical benefits was an issue that was within the sound discretion of the WCJ and the decision in this case was in keeping with the humane purposes of the Act. Accordingly the decision was affirmed.

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