May 3, 2010

Digest of
Appellate Decisions
April 2010

Lindstrom Co. v. WCAB (Braun), 1815 C.D. 2009 (Pa. Cmwlth. 2010); Braun v. WCAB (Lindstrom Co.), 1970 C.D. 2009 (Pa. Cmwlth. 2010)

Shaw v. WCAB (Melgrath Gasket Co.), 1871 C.D. 2009 (Pa. Cmwlth. 2010)

Kleinhagan v. WCAB (KNIF Flexpak Corporation), 2009 C.D. 2009 (Pa. Cmwlth. 2010)

Lindstrom Co. v. WCAB (Braun),
1815 C.D. 2009 (Pa. Cmwlth. 2010);
Braun v. WCAB (Lindstrom Co.),
1970 C.D. 2009 (Pa. Cmwlth. 2010)

Expert’s clear testimony that Claimant’s blood alcohol level of .28 was a very substantial contributing factor to his injury was sufficient basis to find that Employer had successfully presented an intoxication defense; expert did not specifically have to testify that “but for” Claimant’s intoxication the injury would not have happened.

Commonwealth Court reversed that part of the Board’s decision which granted Claimant benefits and costs. Claimant was injured on his job as an ironworker when he fell 25 feet while standing on a six inch wide girder attempting to guide a steel beam into place. Claimant landed on his head and sustained multiple injuries, including loss of function in his arms and legs. He filed a claim petition seeking full disability, medical bills, counsel fees, specific loss and disfigurement. Employer filed an answer denying all allegations. Employer then issued an NTCP two weeks after the accident. Two months later, Employer issued a notice of denial, stating the claim was being denied because an investigation showed that Claimant was under the influence of alcohol at the time of injury. Claimant then filed a petition to reinstate, alleging that Employer failed to send a notice stopping temporary compensation within five days after the date of the last payment in violation of the Act.

At hearing, Employer’s doctor testified that Claimant’s blood alcohol level at the time of the accident was .28. The expert further testified that Claimant’s intoxication caused significant impairment in his coordination and motor skills and was a very substantial contributing factor to his accident. Claimant presented testimony that challenged the procedure by which his blood had been taken and tested, particularly with regard to the chain of custody and method of testing. Claimant also presented testimony of a co-worker who had observed Claimant prior to the accident and did not see him swaying or losing his balance. The WCJ denied the claim petition and ruled that the petition to review benefits was moot.

Claimant’s petition to reinstate benefits was also denied, as the WCJ determined that the benefit payments that Claimant received were prospective rather than retrospective in nature. Therefore, when Claimant received his last payment on February 11, 2003, it was meant to cover the period until February 20, 2003. When the Claimant received the NSTCP on the 21st, it was within the required five days after the last payment period. The Board agreed with this reasoning, however, it reversed the WCJ’s finding on the intoxication defense: there was insufficient evidence to support the conclusion that the accident would not have occurred but for Claimant’s intoxication.

On remand, the WCJ determined, based on the language used by the Board, that she was unable to take additional testimony regarding any issues other than the extent of Claimant’s injuries. The claim petition was granted. Both parties appealed and the Board again remanded the matter only for additional testimony as to unreasonable contest fees. The WCJ denied the request for fees based on unreasonable contest, since Employer presented a genuine issue of fact, but awarded Claimant litigation costs. The Board affirmed this decision and both parties appealed.

On review, the Court rejected the Board’s finding during the initial appeal that the WCJ had erred in failing to specifically find that Employer’s expert did not testify that “but for” Claimant’s intoxication, the accident would not have happened. Neither the Act, nor its supporting case law required that “magic words” were required to be uttered by a witness testifying to support an intoxication defense. The recounting of the testimony of Employer’s medical expert established that Claimant’s intoxication was the cause in fact of his injury. Based on this reversal, Claimant was not entitled to litigation costs.

Lastly, the Court went on to affirm the Board’s finding that the NSTCP was sent in a timely manner because of Employer’s payment of benefits at the beginning of the benefit period.

Shaw v. WCAB (Melgrath Gasket Co.),
1871 C.D. 2009 (Pa. Cmwlth. 2010)

While medical provider was free to send Claimant’s records on an encrypted CD-ROM, failure to provide the password to the URO rendered the provider non-compliant and Claimant’s treatment was properly deemed unnecessary.

Commonwealth Court affirmed the decision of the Board, which reversed the WCJ’s decision that granted Claimant’s utilization review petition and vacated the underlying UR determination. Claimant was injured in 1988 and began receiving benefits. In 2007, Employer filed a utilization review request for any and all prescriptions for medications prescribed to Claimant. The Bureau assigned the request to the URO, which sent a letter to Claimant’s medical provider asking for all the medical records for Claimant for the entire course of treatment for Claimant’s injury. Claimant’s doctor sent an encrypted CD-ROM with the records, but neglected to send the required password. The URO called the office and left a message that it could not open the CD and that the doctor had one day to provide paper records. The URO sent the CD back and made no other attempts to contact the doctor. A few weeks later, a determination was made that the medications were unnecessary because the requested records had not been provided. Claimant filed this petition and presented the doctor’s testimony that the URO had never requested the password.

The WCJ determined that the doctor had provided the records within the 30-day prescribed time period, and that he had acted reasonably to protect the security of Claimant’s medical records. The WCJ went on to find that the URO’s actions were not reasonable in that they made no effort to ask for the password or otherwise open the CD. The petition was granted and the UR determination was dismissed. The Board found that the doctor had acted reasonably in sending the records in CD form, but had not acted properly in failing to provide the password when learning that the URO could not open the records.

The Board reversed the decision below. The Court agreed that the issue was not whether the doctor supplied the records, but whether the records, as mailed, satisfied the requirement for providing a URO with the requested medical records. While the relevant Pennsylvania Code section did not specify the format in which medical records had to be provided to the URO, it was implicit in the regulation that the provider supply the requested records in a useable format that allowed for their review. Absent readable records, the UR process was thwarted. The Court found that the doctor’s failure to provide the appropriate password was unreasonable, particularly since he had gotten a message from the URO indicating that the records could not be accessed.

Kleinhagan v. WCAB (KNIF Flexpak Corporation),
2009 C.D. 2009 (Pa. Cmwlth. 2010)

Employer issued notice of ability to return to work in a prompt manner, since the notice was issued six weeks after Claimant’s medical examination and five months prior to the filing of Employer’s modification petition.

Commonwealth Court affirmed the WCJ and Board decisions to grant Employer’s modification petition. Claimant injured his back in 2005. Employer issued an NCP acknowledging a lumbar sprain/strain. In 2007, Employer filed this petition, alleging that work was generally available to Claimant within his restrictions. Previously, Claimant underwent a medical examination and vocational interview. At the interview, Claimant and his counsel were presented with a copy of the notice of ability to return to work, which the vocational specialist testified they had both acknowledged receiving previously. The labor market survey identified five jobs, not all of which required use of a computer. Claimant’s only testimony at hearing was that he did not own a computer and did not know how to use one. Claimant presented no medical testimony. In granting the petition, the WCJ noted that not all the specified positions required computer use, and those that did offered computer training. The Board affirmed this decision.

On appeal, Claimant argued that Employer had failed to provide a timely notice of ability to return to work. While Claimant again agreed that he received the notice at the conference with the vocational specialist and before, he argued that the notice had not been promptly sent as required by the Act. The Court reviewed case law that defined what “prompt written notice” was under the Act and determined that notice must be given within a reasonable time after the employer has received the medical evidence and a reasonable time before the employer acts on the information. Herein, Claimant received the notice at least less than six weeks after his examination by the doctor and over four months before Employer filed its petition.

Further, the Court dismissed Claimant’s objection to the alleged failure of Employer to provide Claimant with the labor market survey performed by the vocational specialist. Claimant failed to raise this issue before the WCJ, and the Court ruled that Claimant had the obligation to raise such failure at hearing so that the burden could be shifted to Employer to prove that the survey was supplied to Claimant. Since the issue had not been raised before the WCJ, the Court was prevented from making any further determination. Accordingly, the decisions made by the WCJ were all found to have been supported by the evidence.

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