Claimant in Babich v. W.C.A.B. (CPA Dept. of Corrections), No. 1472 C.D. 2006 was a nurse at the State Correctional Institute in Pittsburgh and filed a claim petition seeking benefits for PTSD and for physical injuries resulting from his employment.

During his testimony, claimant provided some specific examples of his activities at work. Claimant indicated that: he had to medically attend to an inmate that had mutilated his own testicles; temporarily revive a prisoner who cut his jugular vein with the prisoner eventually dying; had a shoving match with a prisoner who accused claimant of not giving him his medication; and had urine and feces thrown on him several times. Claimant suggested that these incidents caused him to seek psychiatric treatment.

The WCJ found that claimant was exposed to “horrible” conditions but claimant failed to prove that these were abnormal working conditions as the other nurses at the prison were exposed to the same conditions. Since claimant failed to prove that his was nothing more than a subjective reaction to normal working conditions, the claim petition was denied. The WCJ also found that claimant failed to prove that he suffered a physical injury.

Commonwealth Court affirmed the WCJ on the basis that claimant was well aware that he would be working in a maximum security prison that was an unpleasant work environment. In light of claimant’s awareness of the circumstances, the Court disagreed with claimant’s assertion that he could not have anticipated the events to which he was exposed. The Court made note of the testimony from the employer’s witnesses, also nurses, that the medical emergencies seen in the prison were no different than those that nurses are exposed to in a hospital emergency room.

The Court also rejected claimant’s allegation that he suffered a physical/mental injury because of the fact that urine and feces were thrown on him. The Court determined that these were akin to “unwelcome touches” that did not rise to an abnormal working condition because nurses everywhere are exposed to bodily fluids.

Physical/mental injury resulted in disability for closed period

Claimant in Bartholetti v. W.C.A.B. (School DistrictPhiladelphia), No. 2058 C.D. 2006 was an elementary school teacher who suffered physical injuries when she broke up a fight between two students. Claimant filed a Claim Petition averring that she suffered severe anxiety and depression from the abnormal working conditions resulting from the altercation.

The WCJ granted the Claim Petition but the Appeal Board reversed as to the award of indemnity benefits because the Appeal Board concluded that Claimant’s medical evidence was not sufficient to prove that she was disabled due to her mental condition.

In addressing Claimant’s burden in the case, Commonwealth Court held that in a physical/mental case, a claimant must prove that the psychological injury resulted from a triggering physical event that arose in the course of employment. Ultimately, Commonwealth Court determined that the medical evidence was sufficient to prove that claimant was disabled due to her mental condition, caused by the physical injuries, so the Court reinstated the award of benefits for a closed period.

Mother partially dependent upon daughter at time of death so entitled to death benefits

Elisa Kalwaytis, the decedent in WyomingValley Health Care Systems v. W.C.A.B. (Kalwaytis), No. 2109 C.D. 2006, lived with her mother at the time of her death. The facts, as developed by the WCJ, demonstrated that Elisa Kalwaytis paid monthly rent to her mother and also contributed approximately $125.00 per month to the various expenses of the household. Meanwhile, the mother introduced financial documents showing that when her monthly income was compared with her monthly expenses there was a monthly deficit of $592.06. Under these circumstances, the WCJ concluded that the mother was partially dependent upon her daughter at the time of death.

In upholding the WCJ’s findings, Commonwealth Court looked to the Supreme Court’s decision in Lineal v. W.C.A.B. (Essel), 669 A.2d 329 (1995), which held that to show dependency, it must be shown that when the normal monthly bills are offset against the income, there is a deficit, absent the contribution from the deceased. The Lineal court held that the monthly expenses must be reasonable in light of the “life circumstances” of the person seeking to show dependency. The Court in Kalwaytis noted that while the mother had accumulated a large credit card debt, in part due to raising her daughter, the fact remained that this credit card debt was one of the mother’s monthly expenses at the time of the daughter’s death so it was one of the mother’s “life circumstances” that created the deficit which required monthly contributions from the daughter. Thus, there was partial dependency.

Children dependent upon decedent at time of death so children entitled to benefits

In A-Jon Contractors v. W.C.A.B (Gregory DiMarzio, Dec’d, Margaret DiMarzio), No. 1520 C.D. 2006 the evidence showed that at the time of the death, the two children of Margaret DiMarzio lived with her and decedent. Decedent and Margaret DiMarzio shared all household expenses, including rent, food and even the cost of the children’s clothing expenses. Margaret DiMarzio testified that other than paying for the children’s health insurance, the biological father provided no financial support to the children.

The WCJ found that the children were dependent upon decedent at the time of his death so they were awarded benefits. Commonwealth Court upheld the award holding that under Section 307 of the Act, 77 P.S. §562 a child under 18 is entitled to benefits if members of the decedent’s household and the Court noted that “child” and “children” are defined to include children to whom the decedent was considered to stand in loco parentis. The Court noted that under the circumstances, decedent intended to function as the children’s parent so the Court held that the children were entitled to benefits.

Margaret DiMarzio had also claimed that she was decedent’s common-law wife, and the WCJ awarded her benefits. However, the Appeal Board reversed on the basis that she was not divorced from her husband at the time of the death so she could not be a common law wife. This issue was not appealed to Commonwealth Court so it was not ruled upon by the Court, but the Court did feel it necessary to discuss the Appeal Board’s rationale in its Opinion so this may mean that the Court would have ruled the same way had the issue of the common-law marriage been before it.

Commonwealth Court holds that common law wife entitled to fatal claim benefits

In Lori Costello & Joseph Costello (Dec’d) v. W.C.A.B. (Kinsley Construction, Inc.), No. 831 C.D. 2006, Lori Costello and Joseph Costello entered into a notarized confirmation of a common law marriage on November 26, 2003. Mr. Costello passed away on June 28, 2004 as a result of work injuries. Lori Costello filed a Fatal Claim Petition that was granted by the WCJ.

Insurer argued that the Fatal Claim Petition should have been denied because Commonwealth Court’s decision in PNC Bank Corp. v. W.C.A.B (Stamos), 831 A.2d 1269 (2003), abolished the common law marriage doctrine in Pennsylvania after September 17, 2003—the date of the Decision in PNC Bank. According to insurer, the confirmation of a common law marriage entered into by the Costello’s on November 26, 2003 was not valid since it occurred after September 17, 2003.

In holding that Ms. Costello was entitled to widow’s benefits, Commonwealth Court made note of the fact that on November 24, 2004 the Legislature amended Section 1103 of the Marriage Law to read that no common law marriage contracted after January 1, 2005 was valid but Commonwealth Court also made note of the fact that the same amendment to Section 1103 of the Marriage Law did not render invalid any common law marriage otherwise lawful and contracted to on or before January 1, 2005. The Court reasoned that because the common law agreement between the Costello’s was signed on November 26, 2003, it was a valid common law agreement.

Commonwealth Court acknowledged that in PNC Bank it abolished common law marriage as of September 17, 2003 and thereafter, but the Court held that the Legislature’s amendment to Section 1103 of the Marriage Law superseded its decision in PNC Bank, thereby validating any common law marriage lawfully entered into prior to January 2, 2005.

No Answer filed to Claim Petition so averments in Petition and letter from insurer acknowledging coverage sufficient to support award

In Brady v. W.C.A.B. (Morgan Drive Away and U.S. Specialty Ins. Co.), No. 1713 C.D. 2006, neither the employer nor U.S. Specialty Insurance filed an Answer to a Claim Petition. Neither the employer nor the insurer attended the first hearing and claimant’s counsel agreed to try to determine the proper insurer. Claimant’s counsel eventually received two letters from U.S. Specialty, one denying coverage and one acknowledging coverage.

The WCJ initially dismissed the Claim Petition because of claimant’s failure to prove who the carrier was for the employer. Claimant appealed and the Appeal Board remanded for additional findings. In the second Decision, the WCJ granted the Claim Petition and ordered the employer and/or its carrier to begin paying benefits.

In affirming the WCJ’s granting of the Claim Petition, Commonwealth Court reiterated its holding in Yellow Freight System v. W.C.A.B. (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981) that if an Answer is not timely filed, then the insurer can not introduce any evidence and the case is to be decided on the basis of the facts in the Claim Petition as well as any evidence introduced by claimant. Since the Claim Petition averred that claimant suffered a work injury and also averred that U.S. Specialty was the carrier at the time of the injury and claimant introduced the one letter from U.S. Specialty acknowledging coverage, Commonwealth Court determined that the WCJ’s granting of the Claim Petition was supported by the facts in the Claim Petition and the evidence.

Late Answer to Claim Petition results in award for total and complete hearing impairment

The Claim Petition filed in the case of PIAD Precision Casting and AIG Claims Services v. W.C.A.B. (Bosco), No. 379 C.D. 2006, averred that claimant had a permanent hearing loss due to prolonged exposure to high levels of noise at work. The Answer was late and insurer failed to provide an adequate excuse for the late filing.

Even though the Answer was late, the insurer argued that because this involved a claim for hearing loss, claimant had the burden of proving that his hearing loss was caused by long-term exposure to hazardous noise at work. The WCJ accepted the insurer’s argument and denied the Claim Petition. However, the Appeal Board reversed.

Before Commonwealth Court, claimant argued that under Yellow Freight, all factual allegations in his Claim Petition were deemed admitted. Claimant further argued that all he had to prove under the Act was that his hearing loss was more than 10% and because his medical expert testified that there was a 99.4% binaural hearing impairment under the AMA Guidelines—he had met his burden of proof. Claimant further argued that he had no burden of proving that he had a long-term exposure to hazardous noise at work because this is an affirmative defense to be raised by the insurer and because the Answer was late, insurer was precluded from raising this affirmative defense.

Commonwealth Court agreed with claimant and determined that the facts as set forth in the Claim Petition and the testimony of claimant’s medical expert were sufficient to prove that there was a work-related 99.4% binaural hearing impairment.

Subrogation from third party recovery allowed even though original employer transferred liability to another entity.

In Risius v. W.C.A.B. (PennStateUniversity), No. 791 C.D. 2006 and Pennypacker v. W.C.A.B. (PennStateUniversity), No. 792 C.D. 2006, both claimants began receiving benefits from the University due to the same work-related motor vehicle accident in 1999. In 2000, the University entered into a Self-Insurance Loss Portfolio Transfer Agreement with Safety National Casualty Company whereby Safety assumed liability for the University’s workers’ compensation claims.

Both Risius and Pennypacker filed lawsuits against a third party with respect to the work-related motor vehicle accident. After they received a settlement, Safety filed Review Petitions seeking to assert its subrogation right against the proceeds from the third party recovery. Claimants denied the subrogation request on the basis that an employer can not sell/transfer its subrogation rights so Safety had no right of subrogation.

Commonwealth Court first tried to determine if PennState could transfer its liability to Safety. In concluding that they could, the Court indicated that under 34 Pa. Code §125.15(a), liability may be transferred to a company authorized to write workers’ compensation insurance in the Commonwealth. Since Safety was authorized to write workers’ compensation insurance in Pennsylvania, the transfer of liability was permitted.

The Court suggested that while the Act and the Regulations are silent as to whether an employer can sell/transfer its subrogation interest, the Court suggested that the Act and the Regulations do not prohibit such a sale or transfer. The Court ultimately concluded that because 34 Pa. Code §125.15(a) allows for a sale/transfer of liability, it follows that an employer can also sell/transfer its subrogation interest. Thus, Safety was allowed to assert its subrogation interest in the third party recoveries of Risius and Pennypacker.

Employer ordered to reimburse Union Fund for medical benefits paid on claimant’s behalf

In Penske Trucking v. W.C.A.B. (Brunkel), No. 87, C.D. 2006, Penske was ordered to reimburse the Teamster Health and Welfare Fund of Philadelphia an amount in excess of $200,000.00, for medical bills the Union Fund had paid on claimant’s behalf.

Brunkel’s underlying workers’ compensation claim was resolved by way of a Compromise and Release Agreement. In the Agreement, Penske agreed to remain responsible for medical bills. Included was a specific paragraph that claimant reserved the right to submit bills paid by outside sources for payment by Penske pursuant to the Act.

A year after the Compromise and Release was approved, claimant filed a Petition seeking payment for medical expenses paid by the Union Fund. The WCJ found that the Union Fund had paid medical expenses totaling $232,120.00 and the WCJ also found that claimant agreed that the Union Fund would be reimbursed, should claimant recover under the workers’ compensation system. The WCJ concluded that claimant was entitled to be reimbursed for the medical expenses paid on his behalf by the Union Fund.

The Appeal Board affirmed and in front of Commonwealth Court, Penske argued that the language of the Compromise and Release precluded claimant from pursuing the action to recover on the Union Fund’s behalf. Penske pointed to the language in the Agreement that stated, “I (Claimant) further agree and represent that I have not filed, and will not file, any action against employer in any Court of law or agency under any such common law, federal, state or local law or regulation”. The Compromise and Release Agreement also contained this language, “It is hereby stipulated and agreed between the parties that the Claimant understands that the Compromise and Release is a complete waiver of any rights they have in the present or in the future under the Workers’ Compensation Act” and that Claimant would not be able to pursue Penske or the third party administrator for payment of indemnity or medical benefits after the approval of the Compromise and Release.

However, Commonwealth Court rejected this argument and in so doing quoted language from the Compromise and Release that, “Claimant reserves the right to submit bills paid by outside sources for payment to the employer pursuant to the Act.” Commonwealth Court concluded that this language clearly shows that claimant reserved the right to submit the bills paid by the Union Fund.

Before Commonwealth Court, Penske also argued that claimant had no standing to seek a recovery on behalf of the Union Fund; that the Union Fund was not a “employer or insurer” entitled to subrogation rights under §319 of the Act, 77 P.S. §671, and that the Union Fund made a gratuitous payment of medical bills that it was not required to make so it was not entitled to reimbursement.

The Court concluded that claimant did have standing to seek recovery on the Union Fund’s behalf. The Court also rejected Penske’s argument that the Union Fund was not an employer or insurer entitled to reimbursement under Section 319 of the Act.

The Court ultimately held that the bills paid by the Union Fund were for the work injury and Penske had an obligation to pay for work-related medical expenses, and it did not matter to the Court that another source initially paid the medical bills. Thus, Penske was required to pay claimant who in turn was obligated to reimburse the Union Fund.

Review Petition not timely when filed more than three years after last payment of compensation

In Seekford v. W.C.A.B. (R.P.M. Erectors), No. 393 C.D. 2006, claimant was injured on July 27, 1994 with claimant undergoing surgery on December 29, 1994. Upon awakening from the surgical procedure to his back, claimant realized that he suffered weakness and loss of control of his right arm which was attributed to nerve damage suffered during the surgery.

In July of 1996, claimant commuted his benefits and since it was a commutation, insurer remained responsible for work-related medical bills. Insurer last paid a medical bill in September of 2000.

On May 16, 2002, claimant filed a claim petition, asserting a loss of use of the right arm. Insurer contended that since claimant’s benefits were commuted in 1996, the claim was time barred by the three year statute of limitations of Section 413(a) of the Act, 77 P.S. §772. However, the WCJ found that claimant did have a loss of use of his right arm and claimant was awarded 210 weeks of compensation plus 20 weeks for a healing period. The insurer appealed.

Te Appeal Board concluded that because claimant sought to amend the NCP to include a specific loss that was the direct result of the accepted work injury, claimant was required to file a Review Petition. Since the matter involved a Review Petition, the Appeal Board looked to Section 413(a) of the Act, which suggests that no NCP shall be reviewed, modified or reinstated unless a petition is filed within three years of the date of the most payment of compensation. The Appeal Board concluded that because claimant received a payment of compensation via the commutation on July 15, 1996, and the Review Petition was filed in May of 2002, claimant’s attempt to amend the NCP was time-barred.

Commonwealth Court agreed that claimant had three years from the date of the last payment of compensation in which to file a petition. In so doing, the Court rejected claimant’s argument that his claim for a specific loss of his arm was a separate and distinct injury from the back injury. Because the injury to the arm was due to surgery for the work-related back injury the Court concluded that the back and arm injuries were connected.

The Court also rejected the claimant’s argument that the three year statute of limitations of Section 413(a) of the Act was tolled by the discovery rule. Claimant had argued that his medical expert did not inform him until April of 2002, that he had lost the use of his arm for all practical intents and purposes. In rejecting this argument, the Court looked to claimant’s testimony that immediately following the surgery in December of 1994, claimant was aware that he was having problems with his right arm