July 2, 2010

Digest of
Appellate Decisions
June 2010

Riley v. WCAB (DPW/Norristown State Hospital), 1533 C.D. 2009 (Pa. Cmwlth. 2010)

Phoenixville Hospital v. WCAB (Shoap), 2188 C.D. 2009 (Pa. Cmwlth. 2009)

Riley v. WCAB (DPW/Norristown State Hospital), 1533 C.D. 2009 (Pa. Cmwlth. 2010)

WCJ erred in recalculating benefits on remand when matter had been returned by the Board for taking of additional evidence on a different issue only.

Commonwealth Court affirmed the decision of the Board, which denied Claimant’s petition to review her benefit offset. Claimant was injured in 2000 and Employer paid her $326.13 per week in disability benefits. In 2002, Employer filed an offset notice, announcing its intention to decrease benefits by $266.61 representing Employer’s contribution towards the pension benefits received by Claimant totaling $1,157.06. Claimant filed the instant petition, alleging that her benefits had been improperly offset.

Before the WCJ, Employer presented the testimony of its director of benefits determination division to support its calculation. The WCJ denied the petition and rejected the argument that Claimant had been led to believe by Employer’s agent that Claimant could receive her pension without any change to her compensation. The Board remanded the matter for more specific findings regarding Claimant’s argument.

During this time Act 57 was passed and the Hensal decision was handed down. The WCJ heard and accepted the testimony of Employer’s actuary, but found that a mathematical error had been made in the earlier calculations. The WCJ ordered a recalculation based on that error. The WCJ again rejected Claimant’s argument that she had relied on incorrect information given by Employer when choosing to receive her pension. Further, Claimant had requested additional benefits under the Heart and Lung Act, which the WCJ declined to address.

Both parties appealed. The Board ruled that the WCJ had acted outside the scope of review when he reconsidered the accuracy and weight of Employer’s expert testimony and recalculated the benefit, since those issues had not previously been raised. The Board affirmed that part of the decision that denied Claimant’s request for additional benefits under the Heart and Lung Act. This appeal followed.

Initially, the Court determined that Claimant had waived an appeal of the sufficiency of the offset calculations, as the objection to the calculations had not been raised with specificity, as required by the rules. The Court supported the Board’s conclusion that the WCJ had acted outside the scope of remand. While not barred from taking additional evidence, and despite any agreement by the parties, the WCJ had no authority to act outside its specific instructions to find whether Employer was directly liable for Claimant’s compensation benefits, and whether Claimant had been misled in taking her pension. For this same reason, the WCJ did not err in declining to entertain Claimant’s request for considering a shortfall in benefits under the Heart and Lung Act. Any issue Claimant wished to raise regarding those benefits must be undertaken in a separate action. Since the Board did not err in its reversal of the WCJ’s second decision, the order was affirmed.

Phoenixville Hospital v. WCAB (Shoap), 2188 C.D. 2009 (Pa. Cmwlth. 2009)

Claimant’s unsuccessful application for positions listed by Employer’s vocational expert did not prevent modification of her benefits as long as Employer could prove that Claimant was physically able to engage in gainful employment in her employment area.

Commonwealth Court reversed the decisions of the WCJ and the Board, which denied Employer’s modification petition. Claimant suffered left shoulder tendonitis and began receiving benefits in 2003. In 2007, Employer filed a modification petition alleging that work was available to Claimant within her restrictions. Later Employer amended that petition to request a modification of benefits. Employer’s doctor testified that while Claimant had loss of function in her shoulder, she could return to sedentary work. Vocational testimony was also presented showing five available jobs within Claimant’s restriction with an average earning power of $347.41 per week. Claimant applied for the five jobs and was not hired. Claimant did not look for other work. The WCJ credited the testimony of Employer’s experts and rejected the testimony of Claimant’s witnesses. However, Claimant’s testimony that she applied for the jobs found by Employer’s vocational expert established her good faith and supported a denial of Employer’s petition. The Board affirmed.

On appeal, Employer argued that the WCJ erroneously concluded that Claimant’s unsuccessful application for the jobs in question prevented modification of her benefits. Employer argued that error was committed when the standard under Kachinski was applied, rather than section 306(b) of the Act. The Court reviewed case law in detail and set forth the case law since Kachinski and the enactment of section 306(b) and ruled that the Act no longer required that specific jobs be available in order to successfully seek modification. Employer was only required to establish a claimant’s earning power for modification to be granted. Further, section 306(b) was more properly used to provide a formula for calculating a claimant’s benefits based on what was reasonably able to be earned. The Court found that Claimant’s application for the enumerated jobs was irrelevant, since Employer no longer had a burden to show that the jobs were available to Claimant. Under the altered standard of proof after the enactment of section 306(b), Employer could obtain modification by showing that Claimant could engage in substantial gainful employment in her employment area. Employer further had the option of showing Claimant’s earning power through expert opinion evidence including job listings with employment agencies and other advertisements in Claimant’s usual area of employment. The key point of inquiry was that the jobs listed by the vocational expert were available at the time they were identified, not necessarily when Claimant may have applied for them.

Finally, since the WCJ had credited the testimony of both of Employer’s experts, Employer was entitled to modification based on this evidence. Accordingly, the decision was reversed and the Court determined that Employer was entitled to a modification in the amount of $347.41 per week.

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