Commonwealth Court of Pennsylvania - Case Summaries
UNTIMELY CHALLENGE GRANTED
Waste Recovery Solution, Inc. vs. WCAB (Swiger)
Commonwealth Court of Pennsylvania
The Commonwealth Court affirms the grant of an untimely filing of a Challenge, despite the fact that no record or evidence showed that the claimant was again out of work.
The claimant sustained a work related injury to his lower left leg in November, 2008, which was acknowledged on a Notice of Compensation Payable. On February 27, 2009, employer issued a Notification of Suspension on the basis that claimant returned to work at earnings equal to or greater than pre-injury earnings. While claimant did not initially Challenge, about a month later, on March 30, 2009 the claimant filed the Challenge. At hearing, without swearing any witnesses in to take testimony, but after discussing the case on the record with the parties, the Judge determined that the claimant had returned to work but was later laid off. Employer counsel remarking that “Your Honor, I hate to get into that, because he’s got an obligation to file a Challenge within 20 days of receipt, and I think if-unless he files that, that is dead in the water.”
Nonetheless, after claimant told the Judge off the record that he was out of work, the Judge granted the Challenge Petition. The employer appealed to the Board, which affirmed, and then to the Commonwealth Court. Before the Commonwealth Court, the employer asserted that since claimant did not file a timely Challenge to the Notification of Suspension, benefits were properly suspended by operation of law. Commonwealth Court disagrees, finding that that insurer may only suspend benefits under §413(c) where there is no dispute the claimant returned to work without an earning loss. Hinkle v. WCAB (General Electric), 808 A.2d 1036 (Pa. Cmmwlth. 2002). In essence, a unilateral suspension under §413(c) is an automatic supersedeas predicated solely on the fact that the claimant returned to work at his time of injury earnings. The employer’s other argument was a substantial, competent, evidence argument. Since claimant did not testify, and there was no opportunity to cross examine, and since there was no evidence or submissions made to Court on the issue of the claimant’s return to work or his subsequent departure, there was no evidence on which the Judge could base a Decision granting Challenge Petition.
The Commonwealth Court disagrees, finding that “the record adequately supports the WCJ’s Decision.” The Court goes on to state, when the WCJ asked employer at hearing if claimant’s statement of the facts was accurate, employer declined to address claimant’s averment that he did not return to work. As a result, employer waived its opportunity to present a defense on the merits of claimant’s Challenge Petition. If employer had evidence to support suspension at any point going forward, it can file another Notification of Suspension, or a Petition for Suspension, in order to prove facts which entitle it to that relief. The Court’s Decision seems inconsistent with §413(c) of Act 57.
Pursuant to §413(c), if claimant does not file a timely Challenge, the Notification has the same binding effect as a fully executed supplemental agreement. Thus, an alternative outcome would have been to have the claimant file a Petition to Reinstate, with the Challenge being treated as an executed supplemental agreement for suspension. The Court would then have to take testimony and evidence as to the nature of the release to return to work, and decide the factual issue of the suspension under the notification, and whether or not the claimant would be entitled to additional wage loss benefits.
WHAT CONSTITUES NOTICE OF INJURY CLARIFIED BY SUPREME COURT
Gentex Corporation vs. WCAB (Morack)
Supreme Court of Pennsylvania
Claimant, Anne Marie Morack, was a long term employee of Gentex Corporation, starting work in 1960 and working up until January 17, 2005 when she stopped working due to pain in her hands. Claimant applied for short term disability benefits on February 2, 2005, and on the short term disability application, claimant indicated that she did not believe her injury to be work related. Claimant was eventually seen by her physician, who diagnosed bilateral carpal tunnel syndrome, flexor tendonitis, and DeQuervain’s tendonitis. At some point between August 2006 and October 2006, claimant left a message on the voicemail of the Human Resources representative stating that she has “work related problems.” Additionally, in October, 2006 claimant filed a Workers’ Compensation Claim Petition.
The primary issues before the Court were whether claimant had given good notice of a work related injury pursuant to §311 and §312 of the Workers’ Compensation Act. The Judge granted the Claim Petition, finding that claimant sustained a work related injury on January 17, 2005, the day she informed her supervisor that she could no longer work because of the pain in her hands. The Judge found claimant’s testimony credible, over the testimony of the HR supervisor, who testified about the voicemail message. It was established that the claimant gave good notice pursuant to §311, and in addition, the Judge concluded that based on her complaints of hand pain, her short term disability form, and her voicemail message, claimant sufficiently described her injuries pursuant to §312, which requires that the employee informed the employer “had received an injury described in ordinary language in the course of his employer on or about a specified time, at or near a place specified.” 77 P.S. 632 §312, Pa. Workers’ Compensation Act.
Gentex appealed to the Board which affirmed the Judge. The Commonwealth Court reversed. Before the Commonwealth Court, Gentex argued that claimant failed to timely give notice pursuant to §311, and also failed to sufficiently describe her injuries pursuant to §312. The Commonwealth Court found that claimant had given notice of a work related injury, but did not comply with §312. Specifically, the Commonwealth Court focused on claimant’s short term disability form, and the content of her voicemail message to the HR representative. The Court found that claimant’s statement that she had “work related problems,” was not sufficiently specific or precise to put the employer on notice pursuant to §312.
Acknowledging that claimant bears the burden of demonstrating the proper notice, the Supreme Court holds that the evidence constitutes adequate notice pursuant to §312 is a fact intensive inquiry, takes into consideration “the totality of the circumstances,” and then ultimately finds that the claimant gave sufficient notice and description of her injury to satisfy §312.
The Supreme Court states that while claimant’s providing notice was not letter perfect, given the humanitarian purpose of the Act, which directs that a “meritorious claim ought not, if possible, be defeated for technical reasons,” and construes the Act liberally in claimant’s favor given properly deference to the Judge’s findings. The Supreme Court looks to the totality of the claimant’s overall communications with Gentex, pointing out that there need not be one particular communication given, but rather if there are several communications there complete and overall effect can be sufficient pursuant to §312. It seems clear that the Supreme Court taking into account the claimant was 45 year employee of the employer, in applying the remedial aspect of Workers’ Compensation law, in finding notice.
FATAL HEART ATTACK FOLLOWING TERMINTION OF EMPLOYMENT NOT COMPENSABLE
Janet Little, dependant of David Little, deceased vs. WCAB (B & L Ford/Cheverolet)
The claimant/decedent sustained a work related injury on October 1, 2005 to his shoulders. Decedent continued to perform light duty work, until January 19, 2006. At that point, claimant was sent home in order to obtain a note from his doctor confirming the decedent would be able to work light duty. Decedent obtained a note from his doctor indicating he could not work at all. When decedent spoke with employer and arranged to bring the note in, decedent was told that he was going to be terminated, and could expect a letter from the employer. Decedent received a letter from employer on January 28, 2006 terminating employment. Following receipt of the letter, and throughout the remainder of a weekend, decedent was extremely upset about the termination and its effects. Decedent was unable to eat or sleep, and paced the floor reading the termination letter over and over again. Decedent was found dead at home on January 30, 2006, still clutching the termination letter in his hand.
A Claim Petition for wage loss disability benefits, as well as a Fatal Claim Petition were filed. The Judge granted the Claim Petition finding that the claimant had sustained a work related injury and was disabled from January 19 through January 30, 2006. However, the Judge denied and dismissed the Fatal Claim. The claimant’s theory was that decedent sustained a fatal heart attack caused by the stress of being terminated from employment. The Board affirmed dismissal of the Fatal Claim, and the matter was appealed to Commonwealth Court. The Commonwealth Court affirms the denial of the Fatal Claim. The Commonwealth Court analyzes the case in terms of Krawchuk v. Philadelphia Electric, 497 Pa. 115, 439 A.2d 627 (1981). In Krawchuk, the Supreme Court determined that the burden on a claimant demonstrated that an injury arose in the course of employment, and was related to employment. In terms of a fatal heart attack claimant in Krawchuk was able to sustain her burden by submitting credible expert medical opinion that established a direct causal relationship between the work related stress and the fatal heart attack.
The Commonwealth Court questioned whether or not the claimant was in fact terminated from employment or not as of the time he had his fatal heart attack. The Commonwealth Court finds that since the claimant had been terminated and was no longer an employee of the employer/defendant, the heart attack could not have occurred in the course of employment. The letter terminating claimant’s employment was January 28, 2006 and the fatal heart attack was two days later. The fact that the claimant sustained a fatal heart attack, at home and not on the employer’s premises, two days after being terminated, the Court found the claimant was not in the course of his employment, and decline to award fatal benefits. The Court states that the Workers’ Compensation Act should not be read as imposing on employers the risk of compensation for injuries that result from a decision to terminate an employee.
Repetitive Utilization Review Determinations are permissible following a change in the Claimant’s condition.
Gary v. WCAB (Philadelphia School District), Commonwealth Court
Claimant suffered a compensable cervical injury and began receiving workers’ compensation benefits in 2001. In 2003, the carrier requested Utilization Review of treatment provided by Dr. Ackert, a chiropractor. In 2007, the workers’ compensation judge denied employer’s Petition to Terminate and granted Claimant’s Petition to Review, adding cervical and lumbar radiculopathy to the Notice of Compensation Payable. In January, 2008, Employer filed a request for Utilization Review Determination of the treatment rendered by Dr. Ackert. The reviewing physician found all treatment rendered by Dr. Ackert not to be reasonable or necessary. Claimant filed a Petition to Review the Utilization Review Determination, alleging that the 2003 UR Determination estopped the employer from arguing in the future that treatment rendered by Dr. Ackert was not reasonable and necessary.
The WCJ ultimately denied the Petition to Review the Utilization Review Determination. The WCAB affirmed and the Claimant appealed to the Commonwealth Court. The Commonwealth Court held that where a change in condition is shown, serial Utilization Review requests are permissible under the Act. In this case, the Employer had shown that Claimant had a change in her condition, i.e. she got worse, and thus was permitted to obtain the Utilization Review of the same treatment it had previously found reasonable and necessary. Further, the mere passage of time was sufficient basis to request the 2008 Utilization Review of Dr. Ackert.
The Commonwealth Court holds that even where the salary of a Claimant substantially changes in the course of the year prior to a work injury, all four completed quarters must still be taken into account in calculating the Average Weekly Wage.
Pike v. WCAB (Veseley Brothers Moving), Commonwealth Court
The Commonwealth Court considered what wages were to be used in determining Average Weekly Wage of an injured worker who had taken a new job in the quarter preceding the injury which caused a substantial increase in his compensation.
The injured worker was originally working as a laborer with the insured and had been so employed for in excess of one year prior to the work injury. In the quarter immediately preceding his work injury, Claimant obtained a CDL license and began working as a driver with the employer. In this new position, he became a commissioned employee causing his salary to substantially increase.
Claimant suffered a work injury and began receiving workers’ compensation benefits based on an average weekly wage which takes into account the entire preceding fifty-two weeks. Claimant files a Petition to Review with an allegation that his average weekly wage should be calculated taking into account only the highest quarter under the Hannaberry case. The WCJ found that the average weekly wage was properly calculated using the average of the highest three quarters in the prior year.
Claimant appealed and the Commonwealth Court affirmed the Workers’ Compensation Judge, finding that Act 57 eliminated the option of using only the highest quarter to calculate the Claimant’s Average Weekly Wage. This holding casts doubt on prior precedent of the Court in which they had held that where a job changes substantially and earnings increase, that the average weekly wage should be calculated taking only the highest wages into account.