January 8, 2009

Digest of
Appellate Decisions
December 2009

Southwest Airlines/Cambridge Integrated Service v. WCAB (King), 136 C.D. 2009 (Pa. Cmwlth. 2009)

Yespelkis v. WCAB (Pulmonology Associates Incorporated and AmeriHealth Casualty), 1150 C.D. 2009 (Pa. Cmwlth. 2009)

Lancaster General Hospital v. WCAB (Weber-Brown), 1482 C.D. 2009 (Pa. Cmwlth. 2009)

Southwest Airlines/Cambridge Integrated Service v. WCAB (King),
136 C.D. 2009 (Pa. Cmwlth. 2009)

Claimant’s medical testimony did not support her claim, since Claimant’s doctor had failed to review Claimant’s, extensive medical records which revealed a history of injury similar to the one alleged by Claimant.

Commonwealth Court amended this decision which had been issued in July and reversed the decisions of the Board and the WCJ, which granted Claimant’s claim petition. Claimant was injured in October 2005 when she was struck in the face and head by a metal door while at work. As a result, Claimant alleged that she experienced headaches, dizziness, blurred vision, head and neck pain, blackouts and difficulty remembering things. Claimant did not return to work.

At hearing, Claimant testified that she had not been involved in any other type of accident or incident where she would have hurt her head. On cross-examination, Claimant admitted that she had been involved in a bus accident and a number of other reported workers’ compensation incidents, all of which involved a head injury and the same pains she presently alleged. Claimant could not remember the substance or injuries of any of these claims, nor could she remember any contradictory statements that she had made before. Claimant presented testimony from her doctor who had diagnosed post-concussive syndrome and said that she was unable to work.

On cross-examination, the doctor testified that he was unaware of Claimant’s history of injury. Other witness testified that although they were present at the time of the alleged accident, they did not witness the events as Claimant had alleged. Other employees also testified that Claimant could not have been hit with the door as she claimed, since the doors were pressurized. Employer’s doctor testified that he could find no injury or restriction to Claimant upon his examination. The WCJ believed Claimant’s testimony as to the occurrence of the injury. Further, the testimony of Claimant’s doctor was also accepted because he had examined Claimant on more than one occasion. The Board affirmed this decision.

On appeal, Employer contended that Claimant’s medical evidence was incompetent, since Claimant’s doctor had no knowledge of Claimant’s history of similar injuries. The Court agreed, finding that the doctor’s failure to review Claimant’s extensive medical records, which would have revealed two previous head injuries, rendered his medical opinion incompetent. Since the Court determined that Claimant had failed to meet her burden of proof with competent medical evidence, the Court was not required to find that the WCJ had capriciously disregarded the evidence presented. Therefore, the decisions below were reversed.

Yespelkis v. WCAB (Pulmonology Associates Incorporated and AmeriHealth Casualty),
1150 C.D. 2009 (Pa. Cmwlth. 2009)

WCJ erred in denying unreasonable contest request, where Employer did not prevail in its penalty petition and WCJ offered no support for conclusion that contest was not unreasonable.

Commonwealth Court reversed the decision of the Board and the WCJ, which denied Claimant’s request for attorney’s fees. Employer had filed a penalty petition against Claimant, alleging a violation of an earlier decision, which granted Employer reimbursement of its accrued subrogation lien against Claimant’s third party recovery. The WCJ found no statutory basis for Employer’s petition, but denied Claimant’s request for fees.

Claimant had suffered a work injury in 2003 when she slipped and fell on Employer’s property. Claimant and her husband started a third party action that settled for $575,000. There was no apportionment of the settlement between Claimant and her husband. The proceeds were placed in escrow, pending a divorce action between Claimant and her husband. During this time, Employer had an accrued lien of over $109,000. In 2007, a WCJ ordered that Employer’s lien could be satisfied when the proceeds were released to Claimant during the course of her divorce action. Claimant’s attorney was also required to provide Employer with the information necessary to calculate its accrued lien and future credit against Claimant’s compensation benefits. When this information was not presented, Employer filed a penalty petition against Claimant. The WCJ determined that he could not grant the petition, but that Employer’s request for information was reasonable. Therefore, Claimant’s request for unreasonable contest attorney’s fees was denied.

On appeal, Claimant contended that the filing of the petition itself was unreasonable and supported an award of fees. Based on the language in the Act, the Court could not agree that the filing a penalty petition was an unreasonable contest on its own. However, in its petition, Employer failed to make clear that it sought forfeiture of interest, nor did it explain that point at hearing. In addition, Employer did not prove that Claimant had violated the 2007 order; nor did Employer establish a factual predicate of Claimant’s violation. Finally, the WCJ’s reference to Employer’s request as reasonable without giving any background for that determination could not support a conclusion of reasonable contest. Absent this explanation, the Court was reluctantly compelled to remand the matter for reconsideration of the issue of unreasonable contest fees.

Lancaster General Hospital v. WCAB (Weber-Brown),
1482 C.D. 2009 (Pa. Cmwlth. 2009)

Although incident which led to Claimant’s vision loss occurred in 1980, Claimant’s claim petition was timely because the specific loss did not occur until 2007; the WCJ properly calculated benefits based on Claimant’s 2007 wage rate.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Claimant’s claim petition wherein she alleged that her work injury resulting in blindness in her left eye and a cornea transplant. Claimant worked as a licensed practical nurse. In 1979 or 1980, during the course of employment, sputum of a patient with herpes simplex virus was sprayed into Claimant’s eye. Claimant was treated and advised to see her eye doctor. Two weeks later, Claimant’s eye swelled and her vision blurred. Claimant believed that she contracted the herpes infection in her eye. Over the next several years, the infection would return, Claimant would receive treatment and her vision would return. However, her eye did not respond to treatment in October 2006. Within several months, Claimant had lost the vision in her left eye completely. She sent a letter to Employer advising of the loss and of her belief that it had stemmed from the work incident. Claimant then received a cornea transplant, but her vision did not return. Claimant filed a claim petition alleging the loss of use of her eye. Employer denied the allegations.

The WCJ found the testimony of Claimant, her co-worker witnesses and her doctor to be credible. Further, the contradictory evidence of Employer could not be accepted because of the lack of documentary proof to support its position due to the remoteness in time of the injury. While the WCJ found that the incident causing the injury occurred in February 1980, the actual date of injury was set as May 2007, the date when Claimant was told that the scarring on her cornea had progressed to the point where a transplant was required. Claimant’s compensation was based on her wages in 2007 and calculated at 275 weeks.

On appeal, Employer argued that the WCJ’s factual findings were not supported by substantial evidence. The Court disagreed and found that even though Employer’s possible records of the incident no longer existed, the WCJ could still properly rely on the credible testimony of Claimant and her witnesses, who clearly recalled the incident and Claimant’s condition at the time.

Further, the WCJ also properly calculated the compensation rate based on Claimant’s 2007 wages. Section 582 of the Act defined Claimant’s wages in terms of her weekly pay at the time of injury. Section 513 set the time of injury as the time a claimant is notified by a doctor of the loss of a member or faculty as a result of the work-related injury. Claimant was not advised of her loss of sight until 2007. The WCJ properly used the 2007 pay rate (although Claimant no longer worked for Employer) in calculating her benefits. Finally, for the same reason, Claimant’s petition was timely filed. Although the incident that led to injury occurred 30 years ago, Claimant’s specific loss did not occur until 2007, making the filing of the petition well within the statute of limitations.

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