March 1, 2010

Digest of
Appellate Decisions
February 2010

Barrett v. WCAB (Sunoco, Inc.), 665 C.D. 2009 (Pa. Cmwlth. 2010); Sunoco, Inc. (R&M) and ESIS Wilmington WC v. WCAB (Barrett), 793 C.D. 2009 (Pa. Cmwlth. 2010)

Polis v. WCAB (Verizon Pennsylvania, Inc.), 1549 C.D. 2009 (Pa. Cmwlth. 2010); Verizon Pennsylvania, Inc. v. WCAB (Polis), 1602 C.D. 2009 (Pa. Cmwlth. 2010)

Marx v. WCAB (United Parcel Service), 1176 C.D. 2009 (Pa. Cmwlth. 2010)

Mackey v. WCAB (Maxim Healthcare Services), 1903 C.D. 2009 (Pa. Cmwlth. 2010)

Barrett v. WCAB (Vision Quest National), 984 C.D. 2009, (Pa. Cmwlth. 2010)

MV Transportation v. WCAB (Harrington), 974 C.D. 2009 (Pa. Cmwlth.  2010)

Paz Y Mino v. WCAB (Crime Prevention Association), 41 C.D. 2009 (Pa. Cmwlth. 2010)

Linton v. WCAB (Amcast Industrial Corporation), 104 C.D. 2009 (Pa. Cmwlth. 2010)

Barrett v. WCAB (Sunoco, Inc.),
665 C.D. 2009 (Pa. Cmwlth. 2010);
Sunoco, Inc. (R&M) and ESIS Wilmington WC v. WCAB (Barrett),
793 C.D. 2009 (Pa. Cmwlth. 2010)

Claimant’s attorney was directed to repay costs for deposition of doctor who performed IRE, when Claimant did not prevail on his challenge of that IRE.

Commonwealth Court affirmed the decisions of the WCJ and Board, which denied Employer’s termination petition and Claimant’s challenge to the IRE that resulted in a whole person impairment rating of seven percent.  Claimant injured his left shoulder in 2001 and began receiving total benefits.  Claimant underwent surgery and returned to light duty.  His benefits were suspended in December 2002.  Two years later, Claimant injured his neck and back in an automobile accident while being driven to an IME.  Employer issued a second NCP, revising the description of Claimant’s injury to include cervical and “lumbar strain sprain,” and began paying benefits again.  Claimant underwent surgery and did not return to work. 

At Employer’s request, Claimant underwent an IRE in 2005 that concluded that Claimant had a seven percent impairment rating.  Employer then issued a notice of change of Claimant’s disability status saying that his status would be changed to partial disability.  Claimant filed two review petitions challenging the validity of the IRE and the change of his status. 

At hearing, Claimant orally amended his petitions to expand the description of his 2004 injuries in the NCP to include more than a strain or sprain of the neck and lower back.  Claimant testified as to his continuing pain from both injuries and his inability to return to his pre-injury position because it required too much physical work.  Claimant’s doctors testified to his continuing disability.  Claimant deposed the doctor who performed the IRE and presented his testimony.  Employer presented the testimony of its medical expert who alleged that Claimant could return to his pre-injury job. 

The WCJ credited the testimony of Claimant’s experts and denied Employer’s termination petition.  Further, the WCJ found that Claimant had failed to show why the IRE performed was invalid.  Finally, Employer was ordered to pay Claimant’s litigation costs, including the costs for deposing the doctor who performed the IRE.  The Board affirmed the decision except for the award of the payment of the deposition.  That matter was remanded to the WCJ, who reversed his decision, finding that the deposition dealt solely with Claimant’s review petition, which failed. 

On appeal again before the Board, the decision was affirmed, with the exception of the cost award for the deposition, which was determined to be related to Employer’s petition, on which Claimant prevailed.  Initially, the Court affirmed the validity of the IRE, which was performed in conformance with the Act and the AMA Guides.  Claimant had cited no authority as to why the IRE was invalidly performed; therefore, the WCJ’s decision was well-reasoned under the law. 

Finally, the Court agreed with the WCJ’s determination that the deposition of the IRE physician related only to Claimant’s review petition upon which he did not prevail.  At no point did the doctor testify regarding Claimant’s ability to return to work or perform his pre-injury job.  Therefore, Claimant could not be reimbursed for the cost.  Since Employer had already paid this cost, Claimant’s counsel was ordered to refund the overpayment, since it did not amount to the repayment of overpaid compensation benefits.

Polis v. WCAB (Verizon Pennsylvania, Inc.),
1549 C.D. 2009 (Pa. Cmwlth. 2010);
Verizon Pennsylvania, Inc. v. WCAB (Polis),
1602 C.D. 2009 (Pa. Cmwlth. 2010)

64-year old Claimant was entitled to reinstatement of benefits after receiving nearly $80,000 in severance pay since his light-duty position had been eliminated and he was unable to find other employment; acceptance of the severance benefits did not constitute retirement.

Commonwealth Court affirmed the decisions of the Board and the WCJ, which granted Claimant’s reinstatement petition because he proved that he was entitled to temporary total benefits after his job was eliminated.  In so doing, the Court agreed that the WCJ had properly calculated Claimant’s benefits. 

Claimant had injured his knee in 2003 and was ultimately transferred to a light duty position because he could no longer perform his original job.  In 2006, Claimant was advised that his light duty position was being eliminated.  Under the terms of the collective bargaining agreement, Claimant was offered an Enhanced Income Security Plan (EISP), which Claimant took because he was offered no other position.  One year later, Claimant filed this reinstatement petition, as his condition had worsened.  Claimant testified that he had looked for other positions, but had not had success due to his age and the uniqueness of his work history.  He did not consider himself to be retired although he was 64.  Employer presented the EISP form where Claimant had checked off “retirement” as the type of separation on the form, rather than elimination of his position.  The total EISP benefit received by Claimant was nearly $80,000. 

The WCJ accepted Claimant’s testimony as credible and noted that his supervisor had filled out his EISP form without Claimant’s direction.  Claimant’s benefits were reinstated at the end of the payment of his EISP benefits.  Employer was also entitled to a credit for the unemployment compensation benefits Claimant received.  Both parties appealed.  The Board affirmed the decisions, ruling that Claimant could not be unjustly enriched by receiving both the EISP benefits and retroactive compensation benefits. 

On appeal from that decision, the Court held that Claimant had not left the workforce voluntarily, but was forced out of work due to job elimination.  The Court further noted that the EISP payments that Claimant had been receiving had not been characterized as pension payments or disability benefits.  Clearly, the payments were due as severance payments under the collective bargaining agreement.  Since no evidence suggested that Claimant had retired, he was not required to prove that he sought other employment in order to receive reinstatement.  Additionally, the WCJ properly gave Employer credit for the EISP and unemployment compensation benefits received by Claimant.  If Claimant were to receive workers’ compensation benefits during the same period that he received his EISP benefits, he would be receiving more compensation than he was entitled to under the Act.  Therefore, the WCJ did not miscalculate benefits

Marx v. WCAB (United Parcel Service),
1176 C.D. 2009 (Pa. Cmwlth. 2010)

Minor defects in Employer’s labor market survey did not render entire survey incompetent; WCJ was not required to average the salary of suggested jobs when calculating modification of Claimant’s benefits and could use highest suggested wage.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Employer’s modification petition. 

Claimant injured her right knee and ankle in 2003 and began receiving benefits.  Claimant filed the instant petition in 2006.  Employer presented the testimony of a vocational expert who was required to provide a hypothetical vocational evaluation because Claimant refused to meet with her. Using Claimant’s job application, eight positions were identified and those positions were approved by Claimant’s doctor. The vocational expert presented by Claimant based his testimony largely on hearsay evidence and did not attempt to locate any suitable position for Claimant. 

The WCJ accepted the testimony of Employer’s witnesses and modified Claimant’s benefits based on an earning capacity of $376 per week.  The Board affirmed this decision. 

On appeal, Claimant argued that the WCJ erred in accepting Employer’s labor market survey and cited several defects in the positions listed in the survey.  The Court ruled that the presence of these defects (a position with an incorrect address, a position potentially outside Claimant’s labor market, a position with an inaccurate wage, and a position that was not actually available) did not render the entire market survey incompetent when there were other positions without defects.  The Court could not agree that the WCJ had determined an incorrect earning capacity, even though the average wage of the positions in the labor survey was over $135 less than the amount found by the WCJ.  The WCJ was not obligated by law to take an average of the suggested job incomes.  The finding that Claimant was able to work the suggested job with the highest income was supported by substantial evidence as it appeared in the vocational expert’s report.  Therefore, the WCJ’s decision was affirmed.

Mackey v. WCAB (Maxim Healthcare Services),
1903 C.D. 2009 (Pa. Cmwlth. 2010)

Even though Claimant worked as a visiting nurse, her work for the same patient over the course of 18 months excluded her from consideration as a temporary employee and made her ineligible for benefits when she was involved in a car accident on the way to her assignment.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s petition for benefits.  Claimant worked for Employer as a home health care aide.  Claimant was assigned to a single patient during the employment period in question.  She drove directly from her home to the patient’s. 

On the day of injury, Claimant’s car skidded on ice and drove off the road. When Claimant left the car, a second car skidded off the road, hitting Claimant’s car, which in turn hit Claimant and seriously injured her ribs, back and knee.  Claimant filed the instant petition and Employer objected, contending that the injuries did not occur in the scope of employment. 

At hearing, Claimant testified on cross-examination that Employer did not pay her for the time she traveled to a jobsite, nor did Employer pay any costs connected with Claimant’s transportation.  The WCJ found that Claimant was not on the clock at the time of the accident, therefore she was not entitled to benefits.  The Board affirmed.

On appeal, Claimant argued that the WCJ erred by failing to find that Claimant was a temporary or traveling employee, with no fixed place of employment, and that she was furthering Employer’s business at the time of the accident.  The Court analyzed the Peterson case in detail; this case, which also dealt with a traveling nurse, allowed benefits for injuries from a car accident on the way to that claimant’s assignment.  The Court distinguished the instant case from that decision in that, unlike Peterson, Claimant had a fixed assignment, always the same patient, and not a different patient every assignment as the claimant in Peterson did.    Since Claimant did not have frequent, multiple, changing job sites, she could not be said to be a temporary employee for the purposes of awarding benefits.  For all intents and purposes, despite her work for an agency, Claimant had a permanent assignment, without the potential for a future move to a different location.

Finally, the Court declined to find that Claimant was entitled to benefits under the “special circumstances” exception to the prohibition of benefits during the travel period to work.  While the Court acknowledged that Claimant’s work as a traveling nurse was laudable, the work did not rise to the level of finding “special circumstances” under which Claimant was furthering the business of Employer.  The Court declined to render a value judgment on the type of work perform by Claimant in comparison to the work done by other workers.

Barrett v. WCAB (Vision Quest National),
984 C.D. 2009, (Pa. Cmwlth. 2010)

Check issued to Claimant was a nullity, not a non-payment, when Employer issued a stop payment on the check before Claimant received the funds.

Commonwealth Court, in an amended and previously unpublished decision, affirmed the decisions of the WCJ and the Board, which denied Claimant’s penalty petitions. 

Claimant had worked for Employer for approximately three days as a childcare worker when she allegedly suffered a work-related injury in 2007.  Employer at first issued a NTCP and sent Claimant a check for her first pay period.  Employer then changed its mind, deciding that the injury was not disabling and issued a stop payment on the check.  Claimant received the check, deposited it and bounced checks that she wrote thereafter. 

Three weeks later, Employer issued a Notice Stopping Temporary Compensation (NSTC) and a Notice of Workers’ Compensation Denial (NCD). Two months later, Claimant filed the instant penalty petition, contending that Employer had violated the Act by failing to file the denial within five days after the last payment had been made, and that the NTCP should have been converted into a NCP because Employer did not issue a valid NSTC or NCD within the 90-day time period for payment of temporary compensation. Employer countered that it was not subject to such requirements, since it had not issued any payment to Claimant. 

After testimony, the WCJ agreed with Employer, and found that it had not issued any payment in light of the stop payment that was sent before the first check could be cashed.  Additionally, the WCJ credited the testimony of Employer’s witness and found that the NTSC and the NCD had been sent within the 90-day time period.  The Board affirmed this decision. 

On appeal, Claimant argued that the check sent to her constituted a payment under the Act. The Court found that the subsequent stop payment order sent by Employer rendered the check a nullity. The Court relied on precedent, which had previously ruled that payment by check represented a conditional payment that was not accomplished until the funds were received by the payee.  Although Claimant received the check, the stop payment prevented her from receiving the actual funds, therefore the check could not be deemed a payment, and Employer could not have been found to have violated the Act.

MV Transportation v. WCAB (Harrington),
974 C.D. 2009 (Pa. Cmwlth.  2010)

Requests for utilization review of physical therapy prescribed by a doctor and administered at that doctor’s facility under his supervision need only name the doctor prescribing the therapy and the facility where claimant received the therapy; individual therapists need not be separately named on the request.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which among other things, granted benefits to Claimant and denied Employer’s UR request as to all the physical therapists in the practice that treated Claimant.

The only issue on appeal before the Court was the denial of Employer’s UR request.  Claimant had been injured when the vehicle she drove for Employer was rear-ended by another car, aggravating injuries Claimant had previously sustained to her neck and back.  Claimant filed for and was awarded benefits in 2006. 

In January 2007, Employer requested utilization review of the physical therapy treatment Claimant was receiving.  In its petition, Employer listed one of the therapists treating Claimant, but in the space designated for “Treatment to be Reviewed,” Employer requested review of all physical therapy provided Claimant at all locations of the provider from the date of October 3, 2006 through the time of filing of the petition and into the future.  The request was assigned to a licensed physical therapist who determined that the therapy given by the named provider was not necessary.  The reviewer declined to comment on any other treatment because Employer had failed to properly request review by specifically naming any other provider. 

The WCJ determined that the treatment given by the named provider did not need to be paid for by Employer, but declined to extend that finding to any of the other therapists who had also treated Claimant.  On appeal, Employer argued that the WCJ had erred as a matter of law, since all the therapists at the facility operated under the supervision of the same physician and provided the same course of treatment.  To request separate utilization reviews would be cost prohibitive inasmuch as the instant review cost over $700. 

On appeal, the Court reviewed two key decisions that held that the treatment provided by physicians must be individually requested for utilization review. However, the Court distinguished physical therapy treatment from the treatment provided by a doctor in that doctors had the power to act independently of each other, whereas physical therapists acted under a doctor’s supervision.  The Court found that it was not reasonable to require an employer to name each individual therapist as a “provider” when seeking utilization review of the same course of physical therapy.  Instead, the Court directed employers when making a UR request for physical therapy prescribed by a doctor and administered in that doctor’s facility under his supervision to name the doctor prescribing the therapy and the facility where the claimant receives the therapy. 

In a footnote, the Court stated that an employer was not required to frame the UR request in such a way when a physical therapist acts more independently.  In this case, Employer did not specify the doctor or that the therapy facility was owned and operated by him in its UR request, but listed the actual therapist as the provider.  As a result, the request was assigned to a physical therapist to evaluate only the actual therapy performed.  The WCJ’s determination that Employer’s request was not sufficient to obtain review of the whole course of prescribed physical therapy was not error.  Therefore, the decisions below were affirmed.

Paz Y Mino v. WCAB (Crime Prevention Association),
41 C.D. 2009 (Pa. Cmwlth. 2010)

Injury accepted by previous litigation without specific amendment of the NCP was binding on subsequent proceedings; Employer was entitled to offset for period of time Claimant received full salary and partial benefits.

Commonwealth Court, in an en banc decision, vacated that part of the Board’s decision that affirmed the WCJ’s grant of Employer’s termination petition.  Claimant had been injured when he tripped over boxes in Employer’s office and landed backwards on a concrete floor.  Claimant did not initially miss any time from work and Employer did not issue an NCP, but paid Claimant’s medical bills.  Based on the results of a UR determination, Employer stopped paying for Claimant’s physical therapy.  Thereafter, Claimant reduced the number of hours he worked daily due to increased pain resulting from his inability to obtain physical therapy. 

The parties filed various petitions to terminate and modify in 2003 and 2004. During the pendency of the actions, Employer issued an NCP acknowledging a lumbar sprain and strain and setting an average weekly wage.  Claimant’s modification petition was then granted and Employer’s termination petition was denied, and Claimant was awarded partial disability.  In her findings, the WCJ did not specifically state that she was amending the injury description of the NCP, but did accept the finding of Claimant’s expert that Claimant had spinal stenosis.  Neither party appealed this decision and Claimant began receiving benefits. 

Employer filed a second termination in 2006, alleging that Claimant had fully recovered.  Employer also filed an offset petition, alleging that Claimant had been overpaid in 2004 and 2005 when he received his full salary and partial disability benefits.  The WCJ granted both petitions and ruled that the findings in the earlier proceedings did not indicate that Claimant’s stenosis was a result of his work injury. 

Further, the testimony of Employer’s witness and the claims adjuster who handled the case clearly showed that Claimant had received partial benefits as well as his full salary for nearly a year, and that Claimant was not prejudiced by being ordered to reimburse Employer.  The Board affirmed these decisions. 

On appeal, Claimant argued that the second WCJ erroneously failed to recognize that the prior decision enlarged the description of the injury contained in the NCP to include an aggravation of Claimant’s pre-existing stenosis.  The Court agreed and noted when a WCJ makes findings in a termination petition based on non-recovery from work injuries not accepted in the NCP those injuries become part of the accepted injury and are binding on subsequent proceedings. 

Clearly, the first WCJ based her decision on the findings of Claimant’s doctor that Claimant’s stenosis had become symptomatic as a result of his work injury.  Since this finding was not recognized at the second proceeding, the matter was remanded for the WCJ to issue new findings and make a new determination after considering all the accepted work injuries. 

With regard to the granting of Employer’s offset petition, the Court could not agree with Claimant’s contention that the overpayment was the result of an administrative error.  While Employer and Insurer could have communicated better about how Claimant was being compensated during the period of overpayment, both took appropriate steps to remedy the situation once the problem was discovered.  Regardless, Claimant was not entitled to the double recovery under the Act. 

Finally, Employer was not barred from recovery based on the date of filing the offset petition.  Claimant was not prejudiced inasmuch as Claimant was fully aware that he was receiving both the benefits and his full salary.  Claimant took no steps to advise Employer or set aside the payments in an escrow account until his entitlement to the payments could be determined.  Judge Pellegrini wrote a separate opinion to clarify that any offset should be allowed only against any possible future compensation Claimant might receive.

Linton v. WCAB (Amcast Industrial Corporation),
104 C.D. 2009 (Pa. Cmwlth. 2010)

Employer’s filing of a second modification petition was not subject to unreasonable contest fees, even though Employer was not successful, because the petition was based on new evidence and had such evidence been credited, Employer’s petition would have been granted.

Commonwealth Court affirmed the decision of the Board, which had reversed the determination of the WCJ to award Claimant attorney’s fees for unreasonable contest.  Claimant was first injured in 1998 and began receiving benefits. In 2001, at the request of Employer, Claimant participated in a vocational interview.  Based on that interview, Employer filed a modification petition that was denied.  Thereafter, an IME was conducted and, after receiving the results, Claimant participated in a second vocational interview.  Employer then filed a second modification petition alleging that Claimant had an earning capacity of $342.71 per week. 

At hearing, both parties presented medical and employment experts to support their positions, and Claimant argued that Employer’s petition was barred by res judicata or collateral estoppel.  Claimant sought nearly $12,000 in unreasonable contest fees.  The WCJ credited all of Claimant’s witnesses and held that Employer had failed to prove that Claimant had an ability to work.  While the WCJ rejected the argument that Employer’s petition was barred by res judicata, he nonetheless determined that Employer’s contest was unreasonable based upon the weight of the evidence.

On appeal, the Board agreed that Employer had not met its burden of proof, but it reversed the award for unreasonable contest.  The Board rejected the res judicata contention, since the first modification petition had been based on different positions.  

Secondly, the Board found that Employer had presented competent evidence that Claimant was able to work, and that jobs within his medical restrictions were available to him; even Claimant’s own physician had agreed to this fact.  The denial of the petition below turned on the fact that Employer had not presented any jobs that were within the medical restrictions set by Claimant’s doctor, or, if they were within the restrictions, were anything other than temporary employment.  As such, Employer had established a reasonable basis for contesting Claimant’s continued receipt of benefits. 

On review, the Court first agreed that res judicata did not apply because a different array of jobs were presented in support of the second modification petition as had been presented in connection with the first modification petition.  For the same reason, Employer’s filing of the second petition could not be said to be an unreasonable contest.  Employer presented new employment opportunities that had become available for Claimant, as well as expert testimony that those jobs were within Claimant’s physical and vocational capabilities.  Had Employer’s evidence been credited, Claimant’s benefits would have been modified.  Therefore, the contest could not have been said to be unreasonable.

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