April 5, 2010

Digest of
Appellate Decisions
March 2010

Stancell v. WCAB (LKI Group, LLC), 1901 C.D. 2009 (Pa. Cmwlth. 2010)

Wells v. WCAB (Skinner), 1136 C.D. 2009 (Pa. Cmwlth. 2010)

Christy v. WCAB (Philadelphia Gear Corporation), 1276 C.D. 2009 (Pa. Cmwlth. 2010)

City of Philadelphia v. WCAB (Harvey), 1379 C.D. 2009 (Pa. Cmwlth. 2010)

City of Philadelphia v. WCAB (Ford-Tilghman), 1049 C.D. 2009 (Pa. Cmwlth. 2010)

Stancell v. WCAB (LKI Group, LLC),
1901 C.D. 2009 (Pa. Cmwlth. 2010)

Employer’s doctor did not need to examine Claimant’s injured lower arm where Claimant no longer complained of pain in that arm either to Employer’s doctor, her own doctor or at hearing before the WCJ.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which granted Employer’s termination petition. Claimant was injured in 2006 when she fell down steps near the front of a bus. The NCP that was issued described her injuries as low back, hand and lower arm contusion.

Employer filed this petition in 2007 alleging Claimant’s full recovery. Employer’s doctor had examined Claimant’s back and right hand, as well as a 2006 MRI scan. The doctor testified that Claimant had recovered from her work injuries, including her lower arm injury. Claimant testified that the pain in her back was as bad as the day she was injured. Claimant, who was 73 at the time of hearing, was able to take public transportation to do her grocery shopping and laundry, but she testified that she was not looking for work as a home care aide due to pain from the work injury. Claimant’s own expert testified that a pre-injury MRI of Claimant’s did not significantly differ from one performed after the accident. That doctor further testified that Claimant could return to work with limitations on lifting, bending, standing and sitting. Claimant’s expert did not testify at all regarding Claimant’s lower right arm pain. The WCJ credited the testimony presented by Employer.

On appeal before the Board, Claimant argued that that Employer did not meet its burden of proof because its medical expert did not offer any testimony as to the specific injury to Claimant’s lower arm. The Board disagreed and ruled that the WCJ had substantial evidence upon which to make a decision. Claimant renewed this argument on appeal before the Court urging that only when the expert was asked a hypothetical question did he offer an opinion as to whether Claimant’s lower arm was healed.

In affirming the decisions below, the Court relied on Jackson v. WCAB, which addressed the identical issue. In Jackson as well as this case, Claimant’s own doctor made no mention of lower arm pain as described in the NCP. Additionally, in her own testimony before the WCJ, Claimant never mentioned that she suffered from any such pain. Employer’s doctor was aware of Claimant’s accepted injury and asked her whether she was experiencing any symptoms in her hand or lower arm. Therefore, the testimony of Employer’s doctor that Claimant was fully recovered from her work injury was substantial, competent evidence and he did not need to specifically examine her arm to make a determination that she was fully recovered from her work injury.

Wells v. WCAB (Skinner),
1136 C.D. 2009 (Pa. Cmwlth. 2010)

Even though Claimant’s ability to return to work was remote, given his non-work related medical conditions, some possibility did exist; Employer was not entitled to an automatic suspension of benefits and was required to send a notice of ability to return to work prior to the filing of the petition.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s granting Employer’s petition to modify. Claimant had injured his back on the job in 1989. In 2004, Employer filed a modification petition alleging that Claimant was released to sedentary work. Further, Employer requested suspension, reasoning that Claimant was totally and permanently disabled from performing any type of employment as a result of non-work related medical conditions. Employer’s medial expert testified that while none of Claimant’s various medical conditions (diabetes, circulatory and heart problems), including the back injury, prevented him from working, the combination of all his medical issues made future employment unlikely. Employer also presented the testimony of a vocational expert who identified jobs that Claimant could perform given only the limitations of his back injury. Claimant did not pursue the available positions, testifying that he was hospitalized at the time of one of the interviews.

The WCJ found Claimant’s testimony as to his limitations incredible, and credited the testimony of Employer’s experts. The WCJ granted Employer’s petitions. On appeal before the Board, Claimant argued that the WCJ had erred, since Employer had failed to furnish Claimant with a notice of ability to return to work. The Board accepted this argument and reversed the decision, ruling that this failure was fatal to Employer’s petitions regardless of their merit.

Before the Court, Employer argued that the notice was not required because it sought suspension under the Schneider case, which held that an employer need not make a showing of job availability in order to suspend benefits when a claimant cannot return to gainful employment as a result of a non-work related condition. The Court analyzed the decision in Schneider in detail. The Court highlighted that the Supreme Court in that case took great care to note that its holding was based on the specific facts of the case. Accordingly, the Court found that the WCJ had strained the limits in Schneider by determining that Employer was entitled to an automatic suspension. Even though Claimant in this case had shown minor functioning, it seemed possible that he may be able to return to some sedentary position in the future. While Employer did make a showing that possible employment existed from Claimant, the failure to send a notice of ability to return to work was mandatory under the Act. Therefore, the decision of the Board was upheld.

Christy v. WCAB (Philadelphia Gear Corporation),
1276 C.D. 2009 (Pa. Cmwlth. 2010)

Although Claimant had separate disabling injuries, one prior to Act 57 and the other after Act 57, the later injury controlled the benefit rate and the offsets to be applied.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Claimant’s petition to review the benefit offset by Employer.

Claimant suffered a knee injury on the job in 1991. Employer paid benefits for the six month period that Claimant was out of work. Five years later, Claimant suffered an injury to his other knee. Employer again paid benefits until Claimant returned to work at his pre-injury wage level. Claimant retired in 1999 at the suggestion of his doctor due to the deterioration of his knees.

Claimant filed two reinstatement petitions after his retirement, alleging that he was totally disabled as a result of his prior knee injuries. The WCJ granted the petitions and awarded Claimant benefits at his most recent rate. As a result of the reinstatement, Claimant was awarded over $55,000. Claimant reported that he had received a lump sum severance of $6,000, nearly $1,000 monthly in pension benefits from a pension funded completely by Employer, and Social Security retirement benefits. Employer took an offset credit of $24,000 on account of these benefits and paid Claimant the balance. Claimant challenged the offset in a petition to review benefit offset and in two penalty petitions.

The WCJ held that Employer was entitled to an offset of $44.61 per week for the difference between the compensation rate for Claimant’s 1996 injury and his 1991 injury. Employer appealed and the Board held that Employer had waived its right to claim offsets for the 1991 injury because it had not raised the issue at the earliest opportunity. However, the Board also held that Employer was entitled to offset for half of Claimant’s Social Security benefits and all of Claimant’s severance and pension benefits. The Board reasoned that Act 57 applied because Claimant had been awarded benefits at the 1996 compensation rate. The matter was remanded to the WCJ, who approved Employer’s offset. This decision was affirmed by the Board and appealed herein.

Claimant argued that the offsets were improper because he was entitled to compensation for the 1991 injury, and Employer did not raise the offset issue while the reinstatement was being litigated. While Claimant conceded that Employer was entitled to the offset for the 1996 injury based on section 204(a), he argued that the section did not apply to his disability compensation benefits. Claimant had suffered a pre-Act 57 injury and a post-Act 57 injury, each of which was totally disabling. The Court relied on earlier case law that directed that compensation should be based on the latter of two separate totally disabling injuries, in effect suspending the benefits for the first injury. Therefore, the injury that determined the benefit rate should determine all matters related to the benefit, such as offsets. Accordingly, the decisions were affirmed.

City of Philadelphia v. WCAB (Harvey),
1379 C.D. 2009 (Pa. Cmwlth. 2010)

Employer was not entitled to both deduction allowed by city ordinance and pension offset.

Commonwealth Court affirmed the decision of the Board that granted Claimant’s request for rehearing and modification. Claimant suffered back and shoulder injuries during his employment. He was awarded total disability benefits going back to 1997 at the 2000 hearing. One year later, Claimant filed reinstatement, review and penalty petitions, alleging that Employer stopped making disability payment when Claimant began receiving his disability pension in 2001.

The WCJ ruled in Claimant’s favor, finding that Employer had failed to properly notify Claimant prior to stopping payment, and that Employer failed to establish any contribution to Claimant’s disability pension. The Board affirmed most of the decision. The matter was appealed to the Court. Pending that appeal, Employer supplied Claimant with an offset notice in 2005 stating that it intended to deduct $527 from Claimant’s benefits for a seven year period from 1998 to 2005. Thereafter, the deduction would be restored.

Claimant filed the instant review petition alleging that the offset was improper and barred by res judicata from the pending appeal. Claimant also filed a penalty petition. This Court affirmed the first decision. The WCJ ruled on the subsequent petitions and held that Employer proved that it funded nearly 54% of Claimant’s disability pension and was entitled to a credit in that amount after the date it sent Claimant the offset notice. The WCJ held that the earlier decision did not forever bar Employer from seeking credit, only that it could obtain an offset without first notifying Claimant.

On appeal to the Board, Claimant contended that the WCJ had erred by failing to consider the effects of Employer’s pension ordinance that stated that pension benefits were to be offset by workers’ compensation payments. The Board affirmed the second decision, ruling that it was unable to adjudicate any possible remedies under the city ordinance. Claimant filed a request for rehearing and contended that the actual amount of pension benefits that Claimant was receiving was $2.27, since his pension had been previously reduced by Employer by the amount he received in compensation benefits. Therefore, Claimant argued, his pension benefits could only be reduced to $1.23, 54% of the amount he actually received. The Board’s previous order reduced his compensation payments to$284.49 per week, with no pension payment to make up the difference. Claimant argued that the Board could not ignore the ordinance because of the resulting effect on Claimant. The Board granted the request for rehearing, and amended the decision to allow an offset of $1.23 per month.

Employer took this appeal and argued that the rehearing was improper since the issue had not been raised in the original appeal to the Board. The Court disagreed, ruling that the rehearing was proper because it served the interests of justice. On the merits, the Board properly modified its decision because it had failed to consider the actual benefits received by Claimant, and thus misapplied the law. Claimant was not seeking to receive an improper double recovery, but Employer was seeking to obtain an improper double deduction. The Court applied the city ordinance and reduced Claimant’s pension benefits by the amount of compensation received. Claimant’s pension was then reduced to $2.27 monthly and the offset amount of $1.23 was confirmed. Finding no error on the Board’s part, the decision was affirmed.

City of Philadelphia v. WCAB (Ford-Tilghman),
1049 C.D. 2009 (Pa. Cmwlth. 2010)

Attorney’s fees were to be paid from compensation benefits that were returned to Employer, not from Heart and Lung Act benefits received by Claimant.

Commonwealth Court affirmed the decisions of the WCJ and the Board, which denied Employer’s termination petition and ordered that a 20 percent fee be paid to Claimant’s counsel. Claimant sustained her injury in 2006, but did not receive benefits because she continued to receive her full salary under the Heart and Lung Act. Employer filed a termination petition in 2007, alleging that Claimant had recovered from her injury. The WCJ denied this petition and ordered that 20 percent of Claimant’s benefits be deducted and paid to her attorney as fees.

The Board affirmed the appeal and ruled that Claimant was eligible to receive benefits under the Heart and Lung Act, as well as workers’ compensation benefits, but the compensation was to be turned over to Employer. The portion of the compensation that was to be paid directly to an attorney as fees was not subject to recovery by Employer. Since counsel was entitled to a fee for successfully defending the termination petition, the amount awarded by the WCJ from the workers’ compensation benefits was no longer payable to Claimant, but to her attorney. Employer was only entitled to recover the workers’ compensation eligible to be paid to Claimant, and since the fee was excluded from this payment, it could not be recovered by Employer. To require Claimant to defend a termination petition and then pay for the successful defense with the benefits received under the Heart and Lung Act would work in favor of employers and was counter to the purposes of the Workers’ Compensation Act.

Finally, the Court declined to make a distinction between self-insured employers and those who were not self-insured when making its decision so that the workers of those employers would not be treated differently. Therefore, the decisions below were affirmed.

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