SUPREME COURT CASES

ROBBERY AND ASSAULT OF DELIVERY DRIVER NOT ABNORMAL WORKING CONDITION SO CLAIM FOR PSYCHIC INJURY DENIED

In Kennelty v. W.C.A.B. (Schwan’s Home Service), 934 A.2d 692 (Pa. 2007), the Supreme Court issued an Order granting the employer’s Petition for Allowance of Appeal. The significance of this Order is only evident when the facts of the underlying matter are reviewed.

Mr. Kennelty was a delivery driver for Schwan’s. While making a delivery, he was robbed and assaulted. As a result, he suffered psychological injuries. He filed a Claim Petition on the basis that the robbery and assault were abnormal working conditions. Meanwhile, the employer defended on the basis that it was normal for delivery drivers in their industry to be robbed and assaulted. Thus, the employer contended that it was a normal working condition and the claimant’s reaction to the situation was not compensable. The WCJ accepted this argument as did the Appeal Board.

Commonwealth Court reversed holding that an assault is not a normal working condition and in so doing suggested that the Court would not accept the fact that society had deteriorated to the point that an armed robbery was “normal.” The employer filed a Petition for Allowance of Appeal to the Supreme Court.

In its Order, the Supreme Court merely noted that the WCJ had credited the employer’s witnesses that the type of assault suffered by the claimant was typical for the home food delivery industry and the Court held that Commonwealth Court could not overturn the WCJ’s finding that this was not an abnormal working condition. Thus, the claimant was denied benefits.

VOLUNTEER EMT ENTITLED TO PRESUMPTION THAT AWW WAS EQUAL TO STATEWIDE AVERAGE WEEKLY WAGE EVEN THOUGH EMT NOT WORKING AT TIME OF INJURY

In Borough of Heidelberg and Inservco Insurance Services, Inc. v. W.C.A.B. (Selva), 928 A.2d 1006 (Pa. 2007), the claimant was injured while performing her duties as a volunteer EMT. She was not employed, earning wages, at the time of her injuries and in fact had retired. Her injuries disabled her from her EMT duties.

The WCJ found that the claimant was injured in the course of her duties as an EMT and the WCJ also determined that Section 601(b) of the Act supported a presumption that the claimant had a wage loss and the wage loss was at least equal to the Statewide average weekly wage. The WCJ rejected the Borough’s argument that the claimant had retired from the work force prior to the injury and was not entitled to wage loss benefits. The Appeal Board affirmed the award of benefits as did Commonwealth Court.

The Borough argued to the Supreme Court that the claimant was not entitled to the presumption of Section 601(b) of the Act that she had wages equal to the Statewide average weekly wage because the claimant had retired from all employment prior to her injuries.

In assessing the Borough’s argument, the Court noted that Section 601(a)(2) of the Act provides that the term employee “shall include all members of volunteer ambulance corps of various municipalities who shall be and are hereby declared to be employees of the municipalities…..who shall be entitled to receive compensation in the case of injuries received while actually engaged as ambulance corpsman.”

The Supreme Court then looked to Section 601(b) of the Act, which indicates that, “In all cases where an injury which is compensable under the terms of this Act is received by an employee as defined in this section, there is an irrebuttable presumption that his wages shall be at least equal to the Statewide average weekly wage for the purposes of computing compensation under Sections 306 and 307.”

Ultimately, the Court concluded that the claimant was injured while actively engaged as an ambulance corpsman so she was entitled to an irrebuttable presumption that her wages were at least equal to the Statewide average weekly wage, regardless of her employment status at the time of the injury.

COMMONWEALTH COURT CASES

WCJ HAD NO JURISDICTION OVER PETITION FOR REVIEW OF UR DETERMINATION, BECAUSE DOCTOR UNDER REVIEW DID NOT SUPPLY RECORDS

The insurer in Stafford v. W.C.A.B. (Advanced Placement Services), 933 A.2d 139 (Pa. Cmwlth. 2007) filed a UR request as to the treatments of Dr. Heberle. Dr. Heberle never provided his records to the URO but a written Determination was issued by the peer reviewer. This UR Determination suggested that because no records were provided by Dr. Heberle, there was no way to determine if the treatments were reasonable or necessary.

The claimant filed a Petition for Review of the UR Determination and the insurer asked the WCJ to dismiss the Petition based on Commonwealth Court’s decision in Count of Allegheny( John J. Kane-Ross Center) v. W.C.A.B. (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005). [Geisler held that a WCJ did not have jurisdiction over a Petition for Review from a UR Determination, when the provider under review did not supply records to the URO.] Meanwhile, claimant argued that Geisler did not apply because the peer reviewer in his case actually issued a Determination while in Geisler the reviewer did not issue any type of Determination. The WCJ rejected claimant’s argument and dismissed the Petition for Review. The Appeal Board affirmed.

Commonwealth Court disagreed with claimant and held that even though the reviewer issued a Determination, that Determination was not complete because it did not contain the minimum requirements of a UR Determination, i.e. the records from the provider under review. The Court went on to hold that because the UR Determination was not complete due to Dr. Heberle’s failure to provide records, there was nothing for the WCJ to review which in turn meant that the WCJ did not have jurisdiction over claimant’s Petition for Review of the UR Determination.

The Court also rejected the claimant’s argument that the Court’s reliance on Geisler violated his due process rights.

PETITION FOR REVIEW OF UR GRANTED EVEN THOUGH THE DOCTOR UNDER REVIEW DID NOT PROVIDE ALL RECORDS TO URO

The insurer in Loc, Inc. v. W.C.A.B. (Graham), No. 536 C.D. 2007, filed a UR request regarding the treatments of Dr. Joseph Thomas. The UR was assigned to Dr. Stephen Thomas who stated in his UR Determination that he did not know if the medications prescribed by Dr. Joseph Thomas were reasonable or necessary, because there was not enough information as to the dosages, the frequency of use, the treatment effect and regular follow-up visits. The claimant filed a Petition for Review of the UR Determination.

Dr. Joseph Thomas admitted that when he provided his records to the URO, he did not provide the documentation as to the dosages or the frequencies of the medications. Dr. Joseph Thomas stated that this written information is kept separately from his medical records and he did not consider this information as part of his medical file for the claimant. Meanwhile, Dr. Stephen Thomas testified that State law requires that information as to the dose of medications and the frequency of use must be included in a patient’s records. Dr. Stephen Thomas indicated that because this information was not in the records he reviewed, he had to find the medications unreasonable and unnecessary. Dr. Stephen Thomas did admit that, in general, the medications prescribed by Dr. Joseph Thomas would be reasonable for the treatment of the claimant’s work-related injuries.

The WCJ credited Dr. Joseph Thomas’ testimony that the documentation regarding the medications was not part of his medical file and that this documentation was not even sent to the insurance company. The WCJ also accepted Dr. Joseph Thomas’ testimony that the medications he prescribed were reasonable, necessary and related to the work injury. The WCJ granted the claimant’s Petition for Review of the UR Determination. The Appeal Board affirmed.

Before Commonwealth Court, the insurer argued that the Petition for Review should have been dismissed by the WCJ based on Geisler. Commonwealth Court dismissed this argument, noting that Dr. Joseph Thomas provided some of his records to the URO. The Court concluded that because Dr. Joseph Thomas provided some of his records to the URO, Geisler did not apply. The Court then held that because the WCJ credited Dr. Joseph Thomas’ testimony that the medications were reasonable and necessary, they would not overturn the WCJ on appeal.

90 DAY PERIOD TO STOP NOTICE OF TEMPORARY COMPENSATION PAYABLE RUNS FROM FIRST DATE OF DISABILITY

In Galizia v. W.C.A.B. (Woodloch Pines, Inc.), 933 A.2d 146 (Pa. Cmwlth. 2007), Commonwealth Court was asked to decide when the 90-day period to issue a Notice Stopping Temporary Compensation begins to run.

The claimant was injured on November 30, 2002 and worked until January 6, 2003. On February 6, 2003 the insurer issued a Notice of Temporary Compensation Payable suggesting that disability actually began January 31, 2003. The insurer then issued a Notice Stopping Temporary Compensation Payable and a Notice of Denial on April 28, 2003.

The claimant filed a Penalty Petition, Reinstatement Petition and Review Petition arguing that his benefits were improperly stopped since the Notice Stopping Temporary Compensation was not timely filed.

Commonwealth Court agreed with the claimant and in so doing determined that the insurer had to issue the Notice Stopping Temporary Compensation within 90 days of January 6, 2003. This was the Court’s holding as it noted that Section 406.1(d)(6) of the Act suggests that if the insurer does not issue the Notice Stopping within the 90-day period for which temporary compensation is paid or payable, then the employer shall be deemed to have admitted liability. According to the Court, the claimant became entitled to temporary compensation as of January 6, 2003—the first date of disability, so this was the date that the 90-day period started to run. Therefore, the Court accepted the claimant’s argument that the Notice of Temporary Compensation Payable converted to a formal Notice of Compensation Payable on April 6, 2003 and the Notice Stopping issued in late April of 2003 was untimely.

PROVIDER HAD TO FILE APPLICATION FOR FEE REVIEW WHEN CHALLENGING AMOUNT FEES PAID BY INSURER

At issue in Enterprise Rent-A-Car v. W.C.A.B. (Clabaugh), 934 A.2d 124 (Pa. Cmwlth. 2007), was the payment for the modifications to claimant’s home. The claimant suffered severe injuries that rendered him a quadriplegic. His home required modifications and he filed a prospective UR request with the UR Determination indicating that home modifications were indeed needed. The insurer did not appeal the UR Determination. Musser Home Builders submitted a bid in the amount of $108,226.00 for the modifications.

In spite of the initial bid, Musser submitted a final bill in the amount of $200,626.71. However, Musser understood that the insurer would only be responsible for 80% of its charges so Musser sought a total payment of $160,501.31. Meanwhile, the insurer ended up paying $114,149.67. The claimant filed a Penalty Petition seeking payment of the difference between $114,149.67 and $160,501.31.

The WCJ found that it would not be unexpected that there would be adjustments to the charges for the construction project and the WCJ ordered the insurer to pay the difference between $114,149.67 and $160,501.31 plus a 10% penalty. The Appeal Board affirmed.

In front of Commonwealth Court, the insurer argued that the issue before the WCJ was one of the adequacy of the fees paid to Musser. Since the adequacy of the fees was the issue, the insurer argued that Musser should have filed an Application For Fee Review. According to the insurer, a WCJ can not address matters involving fee disputes so it was improper for the WCJ to do so.

The Court agreed with the insurer and held that because the insurer paid some of Musser’s bill and Musser sought additional payment, Musser should have filed an Application for Fee Review. This meant that the WCJ did not have jurisdiction over the claimant’s Penalty Petition. Therefore, the insurer did not have to pay the difference between $114,149.67 and $160,501.31 nor was the insurer required to pay the penalty.

AWARD OF 10% PENALTIES AND LIMITED ATTORNEY’S FEES FOR UNREASONABLE CONTEST UPHELD

In Bittinger v. W.C.A.B. (Lobar Associates, Inc.), 932 A.2d 355 (Pa. Cmwlth. 2007), the claimant filed a Reinstatement Petition against St. Paul Insurance with respect to a 1996 injury averring that the injury recurred in 2003. The claimant also filed a Claim Petition against Travelers Insurance, the carrier for the employer in 2003. The WCJ issued a 410 Order, directing the insurers to each pay 50% of the claimant’s benefits.

The WCJ eventually denied the Claim Petition against Travelers and granted the Reinstatement Petition filed against St. Paul. The WCJ also awarded a 10% penalty on the unpaid medical expenses and the WCJ awarded attorney’s fees for an unreasonable contest but only for the period from St. Paul’s initial denial of reinstatement until the time that the WCJ issued the 410 Order.

The claimant argued to Commonwealth Court that the WCJ erred in only granting a 10% penalty on unpaid medical expenses. The Court noted that the injury in 1996 was to the left knee/low back while the injury in 2003 was to the right knee; therefore, it was the claimant’s burden to prove the right knee injury was related to the original work injury. The Court felt that St. Paul had an adequate basis to initially deny the bills. Under the circumstances, the 10% penalty was upheld as the Court held that a WCJ has the discretion to award penalties as low as 10% and the WCJ did not abuse this discretion in the matter.

As for the attorney’s fee issue, the Court noted that St. Paul did not file a Joinder Petition against Travelers in order to avoid paying benefits. Instead, it was the claimant who filed a Claim Petition against Travelers. The Court concluded that after the issuance of the 410 Order, St. Paul had a reasonable basis to contest liability as to Travelers. The Court noted that it would be unfair to penalize St. Paul when it was the claimant who brought up the question of which was the proper carrier responsible for the payment of benefits.

EMPLOYER DID NOT HAVE TO SHOW JOB AVAILABILITY FOLLOWING A PERIOD OF TOTAL DISABILITY FOR A CLAIMANT WHO HAD EARLIER REFUSED A POSITION IN BAD FAITH

The employer in Muretic v. W.C.A.B. (Department of Labor & Industry), 934 A.2d 752 (Pa. Cmwlth. 2007), offered the claimant a modified duty position effective January 21, 1997. However, the claimant did not return to work because she was incarcerated following an arrest for aggravated assault while driving under the influence.

In accordance with the Act, the employer unilaterally suspended benefits while the claimant was incarcerated

The employer also filed a Suspension Petition based on the job offer. The WCJ granted the Suspension Petition on the basis that the claimant presented no evidence to prove that she was not physically capable of performing the modified duty position offered to her. The WCJ went on to state that when the claimant was released from prison she would not be entitled to a reinstatement of benefits because she had been offered a position within her restrictions and she failed to apply.

After she was released from prison, the claimant filed a series of Review and Reinstatement Petitions which were denied. After undergoing surgery in May of 2003, the claimant again filed a Reinstatement Petition. The WCJ granted the reinstatement but only for a closed period, determining that by September 8, 2004 the claimant was capable of performing the position that had been available to her in 1997 for which she did not apply. The WCJ found that the employer did not have to show job availability in September of 2004 in light of the finding that the claimant had not applied for the position in 1997. The Appeal Board affirmed.

The claimant argued to Commonwealth Court that the WCJ erred in finding that she acted in bad faith by not returning to work in 1997. The Court rejected this argument noting with respect to the job offered in 1997, that the WCJ made a finding that the position was offered to the claimant and the claimant unreasonably refused the position because she was in prison.

The Court also upheld the WCJ’s finding that the employer did not have to prove job availability in September of 2004. This was the Court’s holding in light of a series of cases which indicate that once a claimant has, in bad faith, failed to return to an offered position, the employer does not have to keep the job open indefinitely and keep proving job availability.

AWW CALCULATED BASED ON EXPECTED HOURLY WAGE

The issue in Lahr Mechanical and S.W.I.F. v. W.C.A.B. (Floyd), 933 A.2d 1095 (Pa. Cmwlth. 2007), was the calculation of the AWW of a worker who earned two different hourly rates during the work week.

The claimant was a welder who earned a lower wage for local jobs and a higher wage when he worked non-local jobs. The claimant was injured before he had completed 13 weeks of work and the insurer issued an NCP calculating the AWW using the lower, local rate. The claimant filed a Review Petition and testified that based on his discussions with the employer, he expected to work mostly at non-local positions. The claimant also testified that he expected to work 8-10 hours of overtime per week.

Commonwealth Court upheld the WCJ’s finding that the claimant was expected to earn the higher, non-local, hourly rate and the Court upheld the WCJ’s finding that claimant was expected to work 58.5 hours per week. (This finding was based on the claimant’s testimony as to his expected overtime hours plus the fact that claimant was paid for his travel time from Pennsylvania to the out of town job site). In affirming the WCJ, the Court stated that Section 309(d.2) of the Act, the Section used to determine the AWW when a claimant has not worked 13 weeks before the injury was suffered, indicates that the AWW shall be the hourly rate multiplied by the number of hours expected to be worked. The Court ultimately concluded that a claimant’s AWW is a question of fact to be addressed by a WCJ and because the Court found that the WCJ’s findings were not in error, the findings were affirmed.

PAYMENT MUST BE MADE ACCORDING TO A WCJ’S AWARD WITHOUT CREDIT FOR OTHER BENEFITS PAID TO CLAIMANT

The claimant in City of Philadelphia v. W.C.A.B. (Sherlock), 934 A.2d 156 (Pa. Cmwlth. 2007), was awarded benefits on a Claim Petition because the City failed to file an Answer or appear at any hearings. Four months after being awarded benefits, the claimant filed a Penalty Petition due to the City’s failure to pay the benefits as Ordered by the WCJ.

The City argued it had constructively complied with the WCJ’s award because the City had paid the claimant Injured on Duty (IOD) benefits pursuant to an agreement in a separate civil service action that claimant had filed.

Commonwealth Court determined that the City violated the Act by not paying benefits as awarded, even though the City had paid IOD benefits to the claimant. In so doing, the Court held that by arguing that it did not have to pay workers’ compensation benefits because it had already paid IOD benefits, the City was engaging in self-help. Specifically, the Court determined that the City was obligated to pay workers’ compensation benefits regardless of other benefits it paid to the claimant and if the City wanted a credit for the IOD benefits paid, it should have sought a credit for them during the initial claim proceedings and not after the fact.

BOARD AND LODGING INCLUDED IN AWW CALCULATION EVEN THOUGH PAID AFTER EXPENSES INCURRED

The issue in Thomas Lennon, Dec’d, c/o Lara Goldman Lennon v. W.C.A.B. (Epps Aviation, Inc.), 934 A.2d 153 (Pa. Cmwlth. 2007), was whether or not board and lodging was to be included in the calculation of the AWW.

Thomas Lennon was a pilot and he sometimes had to stay overnight at hotels and was also required to dine out. The employer reimbursed Mr. Lennon after he had incurred these expenses. Mr. Lennon was killed in a work-related plane crash.

Lara Lennon argued that in addition to his wages, Mr. Lennon’s board and lodging should be included in the calculation of the AWW. The employer argued that these payments should not be included because Mr. Lennon was reimbursed after the expenses had been incurred and not before.

The WCJ agreed with the employer as the WCJ noted that the employer did not advance the expenses and only reimbursed Mr. Lennon after he had incurred the expenses. The Appeal Board affirmed.

Commonwealth Court reversed, holding that it did not matter when the expenses were paid to Mr. Lennon—the reimbursements for work-related board and lodging were to be included in the calculation of the AWW.

PSYCHOTHERAPY BILLS MUST BE PAID WHEN TREATMENT PROVIDED PURSUANT TO REFERRAL FROM LICENSED PRACTITIONER OF THE HEALING ARTS

The insurer in Delarosa v. W.C.A.B. (Masonic Homes), 934 A.2d 165 (Pa. Cmwlth. 2007), denied payment of the bills for the claimant’s psychotherapy on the basis that it was not provided under the supervision of, or by the referral of, a psychiatrist or psychologist. The evidence showed that the claimant’s psychotherapy was provided by a therapist based on a referral from Dr. Peppleman, the claimant’s orthopedic surgeon.

The claimant filed a Penalty Petition and also requested attorney’s fees for an unreasonable contest. The WCJ ordered the insurer to pay the treatment bills, but did not award penalties or attorney’s fees. The Appeal Board affirmed.

Commonwealth Court upheld the WCJ’s denial of penalties, holding that the imposition of penalties, as well as the amount of the penalties, was within the discretion of the WCJ. Since the Court found that the WCJ did not abuse this discretion in choosing not to award penalties, the Court declined to overturn the WCJ’s decision.

The Court did however, reverse the WCJ’s finding that the claimant was not entitled to award of attorney’s fees. Commonwealth Court held that the insurer’s denial of the psychotherapy bills was based on a faulty legal premise, i.e. that the psychotherapy was not compensable because it was prescribed by an orthopedic surgeon and not by a psychiatrist or a psychologist. The Court noted that psychotherapy is compensable if prescribed by a licensed practitioner of the healing arts and Dr. Peppleman was a duly licensed practitioner of the healing arts. The Court stated that there is no requirement that the referral be from a mental health provider. The Court concluded that the insurer’s contest was unreasonable and the case was remanded to the WCJ to calculate the attorney’s fees.

UR REQUEST HAD TO BE FILED WITHIN 30 DAYS OF RECEIPT OF BILLS AND RECORDS SINCE EMPLOYER HAD NOT DISPUTED THAT CLAIMANT WAS INJURED

The issue in Ryndycz v. W.C.A.B. (White Engineering), No. 318 C.D. 2007 involved the insurer’s UR request following the granting of a Claim Petition for an injury that was not truly disputed.

The claimant was injured on June 18, 2001 but the insurer never officially acknowledged the injury. However, the insurer paid some of the claimant’s medical expenses. The claimant filed a Claim Petition and a Penalty Petition, that were granted by WCJ McManus in a Decision issued on June 19, 2003. In granting the Claim Petition WCJ McManus Ordered, among other things, payment of the bills of Daryl Warner, D.C.

On July 16, 2003, the insurer filed a UR request as to Dr. Warner’s treatments. A UR Determination was issued concluding that Dr. Warner’s treatments were reasonable and necessary from July 31, 2002 through December 2, 2002 but not thereafter. The claimant filed a Petition for Review for the UR Determination.

WCJ Desimone denied the Petition for Review and the claimant appealed. The Appeal Board remanded to WCJ Desimone and he once again denied the Petition for Review. The Appeal Board affirmed.

Before Commonwealth Court, the claimant argued that the insurer could not file a UR request as to Dr. Warner’s treatments because WCJ McManus had ordered payment of his bills and that initial decision was never overturned. The insurer argued that WCJ McManus’ decision had no bearing on its UR request because WCJ McManus had no jurisdiction to address the reasonableness or necessity of any treatments as this can only be done via a UR request.

The Court agreed with the claimant, noting that the insurer did not dispute that the claimant was injured at work. The Court suggested that, but for the insurer’s failure to officially acknowledge the work injury, the claimant would have been receiving benefits and the insurer would have had to challenge the claimant’s treatments within 30 days of the receipt of the medical bills and records. The Court concluded that the insurer’s UR request as to treatments dating to December of 2002 was untimely; however, the Court did indicate that the insurer could challenge Dr. Warner’s treatments from June 17, 2003 onward, since those treatments would have been provided within 30 days of the date of the insurer’s UR request on July 16, 2003.

NO CREDIT FOR FURLOUGH BENEFITS PAID TO CLAIMANT

The employer in Kelly v. W.C.A.B. (US Airways Group, Inc.), No. 2199 C.D. 2006, sought a credit for furlough benefits paid to the claimant during a time period that he was also entitled to workers’ compensation benefits.

The employer sought the credit for the furlough benefits under Section 204(a) of the Act, which indicates that severance benefits shall be credited against benefits paid. Meanwhile, the claimant argued that furlough benefits are different than severance benefits because the former are provided for a non-permanent separation from employment while the latter are paid for a permanent separation from employment.

In addressing the issue, the WCJ looked to 34 Pa. Code §123.2, which defines a severance benefit as a benefit that is paid as a result of the employee’s separation from employment. The WCJ concluded that nothing in the Act or in the Code required that severance benefits be for a permanent separation from employment; therefore, the WCJ granted the credit. The Appeal Board affirmed.

Commonwealth Court reversed, agreeing with the claimant that the Act and the Code are clear--there is only a credit for severance benefits. This was the Court’s holding as it determined that there is indeed a difference between severance and furlough benefits because a claimant’s employment relationship has not been severed when furlough benefits are paid.

NO BENEFITS SINCE DECEDENT SIGNED AFFIDAVIT ELECTING NOT TO BE AN EMPLOYEE UNDER THE ACT

The claimant in Martin Shafer, Jr., deceased/Judy Shafer v. W.C.A.B. (Martin Shafer Jr., Inc., Selective Insurance Company), No. 88 C.D. 2007, filed a Fatal Claim Petition on her own behalf and on behalf of her minor child seeking benefits due to the work-related electrocution of Martin Shafer, Jr. The insurer defended on that basis that Mr. Shafer had waived his right to compensation because he had signed an affidavit electing not to be an employee for purposes of the Act.

The evidence submitted to the WCJ included the affidavit signed by Mr. Shafer whereby he elected not to be an employee for workers’ compensation purposes and testimony from handwriting experts comparing the signature on the affidavit with handwriting samples of Mr. Shafer.

Ultimately, the WCJ found that prior to his death, Mr. Shafer had elected not to be an employee of the corporation for purposes of the Act, so the Fatal Claim Petition was denied. The Appeal Board affirmed.

Before Commonwealth Court, the claimant argued that the WCJ improperly placed the burden on her to prove that Mr. Shafer had not signed the affidavit. The claimant argued that once she proved that Mr. Shafer was injured at work, it was the insurer’s burden to prove that the affidavit was valid. The Court rejected this argument, instead holding that in a claim setting the claimant has the burden of proof throughout the proceedings and because the WCJ found that Mr. Shafer had signed the affidavit electing not to be an employee under the Act, the claimant could not prevail.

MODIFICATION OF BENEFITS BASED ON FULL-TIME WORK WHEN THE CREDITED MEDICAL TESTIMONY PROVED CLAIMANT CAPABLE OF FULL-TIME, NOT PART-TIME

The insurer in Morella v. W.C.A.B. (Mayfield Foundry, Inc. and Laundry Owners Mutual Liability), No. 141 C.D. 2007, filed a Modification Petition averring that full-time work was available to the claimant that would result in a suspension of benefits.

The insurer presented the testimony of Dr. Richard Kasdan who opined that the claimant was capable of full-time light duty work. A vocational expert who performed an earnings power assessment, testified that jobs were available to the claimant with a mean weekly salary of $303.89. The claimant testified on his own behalf and also presented testimony from Dr. Gerard Myers who opined that claimant was not capable of working in a light duty capacity but Dr. Myers did state that he would not stop the claimant from accepting any position in the earning power assessment.

The WCJ accepted the testimony of Dr. Kasdan and granted a modification of the claimant’s benefits. However, the WCJ found that the claimant was only capable of part-time work due to the fact that the claimant had been out of work for so long. The Appeal Board affirmed, but modified the WCJ’s award to reflect that claimant was capable of full-time work.

To Commonwealth Court, the claimant argued that the Appeal Board erred in concluding that he could work full-time when the WCJ found that he could only work part-time. Commonwealth Court disagreed with claimant, determining that when the WCJ credited Dr. Kasdan’s opinion, this meant that WCJ implicitly found that the claimant could perform full-time work so it was not erroneous for the Appeal Board to conclude that the claimant was capable of full-time work.

INSURER REQUIRED TO PAY MEDICAL EXPENSES EVEN THOUGH BILLS AND RECORDS NOT PROPERLY SUBMITTED WHEN THE BILLS HAD BEEN PAID IN THE PAST

The claimant in Seven Stars Farm, Inc. v. W.C.A.B. (Griffiths), No. 990 C.D. 2007 filed a Penalty Petition because the insurer did not pay his medical expenses.

The claimant sustained severe injuries and as a result required home health care. This home health care was provided by a woman who was not an RN, LPN or certified nurse’s aide. However she helped claimant with feeding and dressing, matters of personal hygiene and she changed his urine-filled bags. She provided her time sheets to the employer and the employer then provided the information to the insurer. A witness from the employer acknowledged that the time sheet reflected that that the home health care was being provided by a certified nurse’s aide even though it had not been provided by a certified nurse’s aide.

The insurer denied payment of the bills on the basis that the bills were not provided on the proper Medicare-approved form. However, a witness from the insurer acknowledged that claimant was in need of home health care and the witness admitted that some of the bills had been paid in the past even though the bills had not be submitted on the proper forms.

The WCJ Ordered payment of all the medical expenses and as well as 50% penalties.

The insurer argued to Commonwealth Court that the WCJ erred in ordering payment of the bills and 50% penalties, because it was the claimant’s burden to prove that the bills were submitted on the appropriate forms. The Court rejected this argument noting that in the past, the insurer had paid some of the medical bills even though the bills had not been submitted on the proper forms. The Court held that payment of the bills and penalties were appropriate because the insurer had all the necessary information in order for the bills to be processed for payment.

ORDER DIRECTING CLAIMANT TO ATTEND IRE IS INTERLOCUTORY AND THEREFORE NOT APPEALABLE

The claimant in Kuzo v. W.C.A.B. (St. Luke’s Miner’s Medical Center and PMA Group), No. 1094 of 2007, refused to attend an IRE that was requested by the insurer. According to the claimant, she did not have to attend the IRE because the exam would not be complete as all of her injuries would not be addressed.

In 1996 the claimant suffered work-related injuries to her neck. By 2003, the NCP was amended to include a swallowing/esophagus problem and major depression. When the insurer requested the IRE, the claimant argued that she did not have to attend the IRE because the AMA Guidelines would not take into account an impairment rating for her psychological injuries. The WCJ ordered the claimant to attend the exam and the Appeal Board affirmed.

Commonwealth Court likewise affirmed. In so doing, the Court held that an Order requiring a claimant to attend an IRE is a non-appealable, interlocutory order. Thus, the Court dismissed the appeal.

TERMINATION PETITION DENIED WHEN INSURER’S DOCTOR DID NOT PROVIDE AN OPINION REGARDING THE ACCEPTED WORK INJURY

The Termination Petition in Elberson v. W.C.A.B. (Elwyn, Inc.), No. 2408 of 2006, was granted by the WCJ. In granting the termination, the WCJ relied upon the opinions of the insurer’s medical expert, Dr. Howard Steel. The Appeal Board affirmed.

The claimant argued to Commonwealth Court that the WCJ erred in accepting the testimony of Dr. Steel because he never opined that the claimant had recovered from the accepted work injury—a herniated disc at L4-5. Dr. Steel did opine that the diagnostic studies showed that the claimant had bulging discs from the “top to the bottom of her spine” and Dr. Steel mentioned that there was a herniated disc at L5-S1 but he found no signs of this disc herniation during his exam. Dr. Steel never acknowledged that the claimant had a herniated disc at L4-5 nor did he opine that the claimant had recovered from that injury.

Commonwealth Court agreed with the claimant and in so doing, noted that to be entitled to a termination; the insurer’s expert must recognize the accepted work injury and must opine that there was a recovery from that injury. Because Dr. Steel never acknowledged that the claimant was suffering from a herniation at L4-5 and never opined that claimant had recovered from that injury, the insurer was not entitled to a termination of benefits.

FATAL CLAIM PETITION DENIED WHEN DEATH DUE TO REASONS PERSONAL TO THE ATTACKER AND NOT DUE TO WORK ACTIVITIES

The issue in Richard LeDonne c/o Kathleen LeDonne/Rocco LeDonne v. W.C.A.B. (Graciano Corp.), No. 1585 C.D. 2006 was whether the claimant could be denied benefits due to the personal animus defense.

Richard LeDonne worked for the employer at a job site in New York and was required to stay in a hotel in New Jersey. Richard and a co-worker were killed while in their hotel room during the work week. , Frank McDonough was convicted of Richard’s murder along with the murder of the co-worker. The evidence showed that at the time of the murder McDonough was having an affair with Michelle LeDonne, Richard’s wife. Michelle LeDonne pled guilty to a lesser charge in exchange for her testimony against McDonough.

Richard’s son, Rocco filed a Fatal Claim Petition with Rocco’s grandmother acting as his guardian. The insurer defended on the basis that Richard was killed for reasons personal to his attacker and not related to Richard’s employment, i.e. the personal animus defense. In support of this defense, the insurer presented testimony from the detectives who investigated Richard’s murder and the insurer offered into evidence a certified copy of the guilty plea of Michelle LeDonne.

The WCJ credited this evidence and concluded that McDonough killed Richard LeDonne for reasons personal to him and having nothing to do with the employment. In the alternative, the WCJ found that Richard was not in the course and scope of his employment at the time of his death. The Appeal Board affirmed.

Before Commonwealth Court, it was argued that the evidence as to McDonough’s conviction and the evidence as to Michelle LeDonne’s guilty plea were improperly admitted by the WCJ. Without this evidence, there was no proof that Richard LeDonne was killed for reasons personal to his assailant.

The Court disagreed and held that a certified copy of the court’s record of conviction of McDonough was the best evidence of his conviction. The Court also noted that McDonough’s guilty verdict and Michelle LeDonne’s guilty plea were official records of the state of New Jersey and according to Pennsylvania law; the official records kept by another state are admissible into evidence. The Court also concluded that the evidence showed that Richard’s death was not accidental; that McDonough and Michelle LeDonne were having an affair and that Michelle had a pecuniary interest in Richard’s death—insurance proceeds. The Court concluded that the insurer met its burden of proving that McDonough killed Richard LeDonne for reasons personal to him and not for reasons related to Richard’s employment—thus, Rocco LeDonne was denied benefits.

WHEN BENEFITS SUSPENDED, REINSTATEMENT MUST BE SOUGHT WITHIN 500 WEEKS OF DATE OF SUSPENSION

In Prosick v. W.C.A.B. (Hershey Chocolate USA), No. 1188 C.D. 2007 the claimant was injured on December 11, 1992 and thereafter he received varying periods of temporary total and partial disability benefits. In March of 1994 the claimant returned to work at a light-duty position. The parties entered into a supplemental agreement suspending benefits as of March 28, 1994.

On February 24, 2005 the claimant’s treating doctor directed that the claimant’s work activities be restricted due to the work injury. By March 29, 2005 the employer advised the claimant that they no longer had modified duty work available.

The claimant filed a Reinstatement Petition on the basis that the employer refused to make modified duty work available to him as of March 29, 2005. The WCJ denied the Reinstatement Petition finding that it was not timely filed according to Section 413 of the Act, which suggests that a reinstatement request must be made within 3 years of the date of the last payment of compensation. The claimant appealed and the Appeal Board affirmed.

In assessing the issue, Commonwealth Court looked to Section 306(b) of the Act which states that partial disability benefits are only payable for a period of 500 weeks. The Court concluded that because the claimant’s benefits were suspended March 28, 1994, the claimant had 500 weeks from that date in which to file for a reinstatement—which was not done. The Court also noted that according to Section 413 of the Act, the claimant had only 3 years from the most recent payment of compensation in which to file a reinstatement. The Court suggested that because the petition was filed more than 3 years from the date that his benefits were suspended, the Reinstatement Petition had to be denied.

OFFSET ALLOWED FOR PENSION BENEFITS EVEN THOUGH CLAIMANT NOT RECEIVING BENEFITS FOR OCCUPATIONAL DISEASE BENEFITS AND TOTAL DISABILITY BENEFITS

The issue in Mosley v. W.C.A.B. (City of Pittsburgh), No. 1200 C.D. 2007, was whether or not the City could take an offset for pension benefits received by the claimant.

The City filed a Notice of Workers’ Compensation Benefit Offset for pension benefits received by the claimant and the claimant filed a Petition for Review of the Benefit Offset. The claimant’s position was that the City was not entitled to an offset for her pension benefits because it was not permitted under the Act.

A pension benefit offset is allowed under Section 204(a) of the Act, which indicates that the benefits from a pension plan, to the extent funded by the employer, shall be credited against an award made under Section 108 of the Act (occupational disease) and 306 of the Act (total and partial disability benefits) of the Act. The claimant argued that because Section 204(a) only allows for a credit when a claimant is receiving benefits under Section 108 and Section 306 the City was not entitled to a credit because she was not receiving benefits under Section 108. The WCJ rejected this argument as did the Appeal Board.

Commonwealth Court agreed that “and” usually acts as a connective such as “in addition to,” “also,” or “as well as.” However, the Court then stated that when it interprets a statute, it is required to ascertain and effectuate the Legislature’s intent.

After reviewing the Legislature’s intent in amending Section 204(a) in 1993 and then again in 1996, the Court concluded that the Legislature wished to expand an insurer’s ability to take credits for benefits received by a claimant, including pension benefits. Therefore, the Court allowed the City to take the offset despite the claimant’s argument to the contrary.

CASE REMANDED TO APPEAL BOARD FOR FURTHER DECISION ON AN EMPLOYER’S SECOND REQUEST FOR AN IRE WHEN FIRST REQUEST DEEMED UNTIMELY

The case of Dowhower v. W.C.A.B. (Capco Contracting), 934 A.2d 774 (Pa. Cmwlth. 2007), decided on October 15, 2007, was in front of Commonwealth Court for a second time, following a remand from the Supreme Court. In its Opinion of April 17, 2007, the Supreme Court remanded the matter to Commonwealth Court to address the insurer’s second request for the claimant to attend an IRE.

The details of the underlying case will be set forth in order to understand Commonwealth Court’s October 15, 2007 Order.

The claimant was injured in September of 1996 and started receiving temporary total benefits effective April of 1997. In May of 1999 the insurer requested that the claimant attend an IRE. The claimant attended the IRE but then filed a Petition for Review arguing that the IRE was requested prior to his receipt of 104 weeks of total disability benefits so it was invalid. The WCJ granted the Petition for Review and the insurer appealed.

The insurer later asked that the WCJ direct the Bureau to designate a physician to perform a second IRE. The WCJ issued such an Order and the claimant appealed. The insurer then filed a Petition for Physical Exam to force the claimant to attend a second IRE. The WCJ granted this Petition and the claimant appealed. The claimant refused to attend the second IRE and the insurer filed a Suspension Petition due to the claimant’s failure to attend the IRE. The WCJ denied the Suspension Petition and the insurer appealed.

All of the appeals were consolidated. The Appeal Board granted the insurer’s appeal with respect to the first IRE request, determining that by actually attending the IRE, the claimant waived any argument as to the timeliness of the request. The Appeal Board stated that the remaining appeals were rendered moot.

In its first Opinion in the matter, Commonwealth Court found that the claimant did not waive any argument with respect to the timeliness of the IRE by attending it. However, the Court went on to state that it was not fatal that the insurer’s request for an IRE was sent prior to the claimant’s receipt of 104 weeks of total disability benefits in light of the fact the IRE itself took place after the claimant had received 104 weeks of total disability benefits.

The Supreme Court reversed Commonwealth Court, holding that the Act clearly states that the request for an IRE can only be made during the 60 day period after a claimant’s receives 104 weeks of total disability benefits and because the request for the first IRE was made prior to the receipt of 104 weeks of benefits, the initial IRE determination was invalid. However, the Supreme Court noted that its Opinion did not end the litigation because the other appeals had not been addressed so the matter was remanded.

In its October 15, 2007 Opinion, Commonwealth Court agreed with the Supreme Court that the other appeals that were originally pending before the Appeal Board escaped review, but the Court indicated that the Appeal Board had to first address the other appeals. Thus, Commonwealth Court remanded the matter to the Appeal Board for a decision on the claimant’s appeal from the WCJ’s Order directing the Bureau to designate a physician to perform a second IRE; to address the claimant’s appeal from the WCJ’s Order directing him to attend the second IRE and to address the insurer’s appeal from the denial of its Suspension Petition due to the claimant’s failure to attend the IRE.

WORKERS’ COMPENSATION APPEAL BOARD CASE

INSURER ALLOWED TO TAKE CREDIT FOR VACATION AND HOLIDAY PAY PAID TO CLAIMANT BECAUSE CLAIMANT ENTITLED TO THIS PAY SOLELY DUE TO HIS WORK INJURY

In Philip Lehman v. ESAB Group and ACS Claims Service, Inc., Appeal Board #A07-0749, the insurer sought a credit for certain monetary benefits received by the claimant from the employer. The claimant was injured on August 24, 1998. He received benefits through June 22, 1999 and then his benefits were suspended from June 23, 1999 through March 2, 2000. Benefits were reinstated effective March 3, 2000.

After March 3, 2000 the claimant continued to receive holiday and vacation pay which was paid by the Employer. The insurer filed a Suspension Petition seeking a suspension based on the $37,513.15 in holiday and vacation pay that was issued to the claimant from March 3, 2000 until the filing of the Petition on March 13, 2006. The WCJ granted the Suspension Petition and the claimant appealed to the Appeal Board.

On appeal the claimant contended that the WCJ erred in allowing for a credit for the holiday and vacation pay that he received. In addressing the claimant’s position, the Appeal Board looked to the Collective Bargaining Agreement (CBA), to determine why the claimant continued to receive the holiday and vacation pay after he was injured.

As for holiday pay, the CBA indicated that if a holiday falls when an employee is absent due to an industrial injury and is receiving worker’s compensation, he/she will be paid the difference between the daily rate and his/her Holiday pay.

With respect to vacation pay, the CBA suggested that compensable accident time under the Workers’ Compensation Act was counted as time worked. The CBA then indicated that the vacation pay was 2% of the previous year’s W-2, excluding pay for time not worked, with the exception of vacation, holiday worker’s compensation, company paid union business pay, for each week of entitled vacation.

The Appeal Board noted that the CBA provided for the accrual of holiday and vacation pay while the claimant was out of work due to a compensable work injury. The claimant did not actually work to earn these payments but instead was entitled to these benefits based upon the provision that time lost due to a compensable injury was used in computing qualifying work hours. The Appeal Board felt it was quite significant that the claimant was not depleting exhaustible benefits when he received the vacation and holiday pay since he kept accruing these benefits while he was off work due to the work injury.

Ultimately, the Appeal Board held that because the claimant was paid these benefits wholly as a consequence of his disability status, the insurer could take the credit.

The Appeal Board did modify the WCJ’s Order as to how the credit was to be taken. The WCJ found that the claimant’s benefits were to be suspended entirely until such time that the $37,513.15 was recouped. However, the Appeal Board felt a complete suspension was too harsh so the Board concluded that the employer could take a $200.00 credit from the claimant’s weekly compensation of $539.46 until such time that the $37,513.15 was recouped.

IT SHOULD BE REMEMBERED THAT OPINIONS FROM THE WORKERS’ COMPENSATION APPEAL BOARD HAVE NO PRECEDENTIAL VALUE BUT THE ABOVE OPINION IS DISCUSSED TO PROVIDE INSIGHT INTO THE LEGAL ISSUE ADDRESSED IN THE CASE.