The claimant in Erisco Industries, Inc. and Inservco Insurance Services, Inc. v. W.C.A.B. (Luvine), 955 A.2d 1065 (Pa. Cmwlth. 2008), suffered a left knee injury at work. Post-incident, the claimant tested positive for cocaine/marijuana. The claimant was fired and a Notice of Denial was issued as to the work injury. The claimant filed a Claim Petition which was denied as the WCJ found that Section 301(a) of the Act prohibited an award. [Section 301(a) indicates that compensation is not payable if the injury is caused by the employee’s violation of law, including the illegal use of drugs.] The Appeal Board affirmed.

 

In an Opinion issued in 2003, Commonwealth Court concluded that the insurer failed to establish the chain of custody of the claimant’s urine sample. Because of this, the Court determined that the opinion of the insurer’s medical expert was not valid as that expert relied solely upon the results of the drug test in rendering the opinion that illegal drug use caused the injury. The Claim Petition was granted.

 

After Commonwealth Court’s 2003 Opinion, the employer filed a Suspension Petition averring that as of February 26, 2004 work would have been available to the claimant but for his firing due to his criminal conduct/violation of company policy. The claimant argued that the Suspension Petition was nothing more than an attempt to re-litigate whether his firing in 1997, for alleged drug use, was a violation of company policy/violation of criminal law.

 

The WCJ granted the Suspension Petition finding that the offered position was not available to the claimant due to his own actions, i.e. the illegal drug use. The Appeal Board reversed, concluding that the employer was not allowed to present additional evidence to establish the chain of custody of the urine sample since the employer failed to do so during the original Claim proceedings.

 

The employer argued to Commonwealth Court that it should be allowed to present evidence with respect to the drug test because during the initial Claim proceedings, there was no factual finding as to the results of the drug test—only a finding that the employer failed to prove the chain of custody of the urine sample.

 

The employer also argued that it should be allowed to prove that the claimant was fired for cause for failing a drug test, without showing the chain of custody of the original urine sample. The Court disagreed, holding that the issue was not whether the employer had a right to discharge the claimant for failing the drug test, but whether the claimant did indeed fail the drug test.

 

Ultimately, the Commonwealth Court held that the employer could not prove that the claimant failed the drug test during the proceedings for the Suspension Petition, because during the initial Claim proceedings, the employer had the opportunity to establish the results of the drug test and failed to do so.

 

 

The claimant in Hansen v. W.C.A.B (Stout Road Associates), 957 A.2d 372 (Pa. Cmwlth. 2008), argued that the insurer’s contest was unreasonable as the contest was based on after-acquired evidence.

 

In May of 2005 the claimant, a waitress for the employer, began experiencing numbness and tingling in her hands. The clamant underwent surgery in November of 2005 and in December of 2005 the insurer issued a Notice of Denial denying that the claimant suffered a work injury. A Claim Petition was filed in July of 2006 and in September of 2006 an IME was performed, indicating that the claimant’s condition was not work-related. 

 

The Claim Petition was granted and the WCJ found that the insurer’s contest was reasonable. The Appeal Board affirmed.

 

The claimant argued to Commonwealth Court that the insurer’s contest was unreasonable because the IME in September of 2006 was performed 9 months after the Notice of Denial was issued.

 

The Court concluded that the insurer’s contest was reasonable because when the Notice of Denial was issued, there were 5 medical records available for the insurer’s review and only one made reference to a possible cause of the complaints. Additionally, when the claimant started working for the employer, she was also working as a waitress at another restaurant. Finally, the Court noted that after the Claim was filed the insurer quickly obtained the medical records and also had the IME performed within 2 months of the filing of the Claim and within 5 weeks of the filing of its Answer.

The employer in Scott v. W.C.A.B. (Ames True Temper, Inc.), 957 A.2d 800 (Pa. Cmwlth. 2008), argued that the Claim Petition alleging a specific loss of an index finger should be denied because the injury was caused by a violation of a work rule. The WCJ agreed, finding that the injury was caused by the claimant’s violation of the employer’s safety rules—so the Claim Petition was denied. The Appeal Board affirmed.

 

The claimant worked as a machinist and he testified that a piece of steel got stuck in his machine. While trying to remove the steel, the machine started and his index finger was severed. The person who trained the claimant denied that the claimant was told to reach into the machine to remove jammed steel.  However, the trainer agreed that steel sometimes gets stuck and it was the operator’s job to remove the steel.

 

The Court acknowledged that an employer can defend against a claim by proving that the injury was caused by the violation of a positive work order. To do so, the employer had to prove that the injury was caused by the violation of the rule; that the employee knew of the rule and the rule implicated an activity not connected with the employee’s work duties. As for the last part of the test, the Court suggested that that the employer had to prove that the employee was involved in an activity that was so disconnected from the regular work duties so that the employee was considered a stranger/trespasser.

 

In reversing the WCJ and the Appeal Board, the Court observed that the claimant’s job was to operate the machine and it was agreed that sometimes steel gets stuck and needed to be removed. Under the circumstances, the Court concluded that the claimant was not involved in an activity that would make him a stranger/trespasser with respect to his employment when he was injured.

 

Also brought up during the case, was the fact that the claimant took a post-injury drug test and tested positive for marijuana and he was fired because of the positive drug test. However, the Court noted that because the claimant was only seeking specific loss benefits, it did not matter if he was terminated for cause due to the failed drug test.

 

 

Commonwealth Court, in Crozer Chester Medical Center v. Department of Labor and Industry, Bureau of Workers’ Compensation Health Care Services Review Division, 955 A.2d 1037 (Pa. Cmwlth. 2008), denied Crozer Chester Medical Center’s (CCMC) request to have the Department of Labor and Industry, Bureau of Workers’ Compensation (Department), determine the issue of liability for the injury in CCMC’s favor. CCMC needed the issue of liability decided in its favor so that it could pursue an Application for Fee Review against Zurich Insurance.

 

Zurich issued a Medical-Only NCP acknowledging a work-related umbilical hernia injury to the claimant. The claimant underwent surgery for the umbilical hernia at CCMC and CCMC submitted the bills to Zurich. Zurich did not pay within 30 days of receipt of the bills.     

 

CCMC filed an Application for Fee Review and the Medical Fee Review Section of the Bureau declined to address the Application because Zurich sent a letter suggesting that liability for the injury was at issue. The Medical Fee Review Section advised CCMC that its Application was premature because liability was at issue.

 

CCMC then filed a Complaint with Commonwealth Court asking that the Court order the Department to determine that Zurich accepted liability for the injury and CCMC asked that its Application for Fee Review be addressed.

 

In light of the fact that Zurich denied liability for the injury, Commonwealth Court chose not to direct the Department to determine that Zurich was liable for the injury. The Court suggested that for the Department to make such a determination, the Department would have to evaluate the Medical-Only NCP, evaluate Zurich’s denial letter, and also evaluate other evidence—and then make a legal determination regarding Zurich’s liability for the injury. The Court held that CCMC’s request was nothing more than an attempt to have the Department issue a ruling that Zurich was liable for an injury in the context of an Application for Fee Review, which is not permitted because Section 127.255(1) of the Pa. Code suggests that an Application for Fee Review is premature if the insurer denies liability for the injury.

 

The claimant in Dart Container Corporation v. W.C.A.B. (Lien), No. C.D. 2008, had a scar on her neck that was described as being an inch and a half long and one quarter inch wide.

 

The WCJ awarded 22 weeks of benefits for the disfigurement. The claimant appealed and the Appeal Board determined that most WCJ’s would award 60 to 75 weeks for a similar scar and the Appeal Board increased the award to 70 weeks.

 

The insurer appealed to Commonwealth Court on the basis that the increase from 22 weeks to 70 weeks shocked the conscience.

 

Commonwealth Court acknowledged that the Appeal Board had the discretion to modify a WCJ’s award for disfigurement but only if it concluded that the WCJ capriciously disregarded competent evidence by entering an award significantly outside the range that most WCJ’s would award. The Court then held that the Appeal Board did not adequately explain why it increased the award to 70 weeks because the Appeal Board did not describe the scar, did not indicate that it rejected the WCJ’s description nor did the Appeal Board explain why most WCJ’s would award 60 to 75 weeks for a similar scar. Therefore, the Court remanded the matter to the Appeal Board for further explanation of its award.

 

In Crawford v. W.C.A.B. (Centerville Clinics, Inc.), No. 2331 C.D. 2007, the claimant died one day before the WCJ issued an Order approving her C&R. After the Order was issued, the insurer filed an appeal and the parties agreed to have the Appeal Board remand the matter to the WCJ for findings regarding the effect of the claimant’s death on the settlement.

 

Upon remand, the WCJ found that the claimant testified that she read and understood the C&R and while the claimant was in a wheel chair, she did not have any problems answering questions asked of her. The WCJ also found that the C&R contained language that it would be null and void upon the claimant’s death if not approved by a WCJ. The WCJ concluded that the C&R was null & void because it was not approved until the Decision was issued and that Decision was issued one day after the claimant died.  The Appeal Board affirmed

 

Commonwealth Court likewise held that the C&R was null and void concluding that the language in the Agreement was quite clear that it was not valid if it was not approved by a WCJ before the claimant died.

 

The WCJ in Costa v. W.C.A.B. (Carlisle Corp.), No. 822 C.D. 2008, granted claimant benefits and the claimant appealed to the Appeal Board because the WCJ did not award attorney’s fees while the insurer appealed from the WCJ’s failure to award it a credit for unemployment benefits received by the claimant.

 

The Appeal Board affirmed the WCJ’s refusal to award attorney’s fees but remanded for a finding on the unemployment benefits received by the claimant. Upon remand, the WCJ granted the insurer a credit for the unemployment benefits. The Appeal Board affirmed.

 

Before Commonwealth Court, the claimant argued that the WCJ erred in granting the insurer credit for the unemployment benefits because the insurer did not present evidence on the question of the credit. Meanwhile, the insurer argued that Section 204(a) is self-executing and binding on WCJ’s.  Also, the insurer pointed out that the claimant himself testified that he was receiving $422.00 per week in unemployment benefits so there was no need to present any other evidence.

 

Commonwealth Court agreed that the record contained evidence as to the amount of unemployment benefits received by the claimant, i.e. $422.00 per week, and the insurer did not challenge that testimony. Therefore, the evidence proved that the claimant was receiving weekly unemployment benefits at that rate. Also, the Court held that even if the insurer did not raise the issue before the WCJ, the mandate of Section 204(a) can not be waived. Thus, the credit was allowed.  

 

In Nickel v. W.C.A.B. (Agway Agronomy), No. 719 C.D. 2008, the claimant filed a Penalty Petition on the basis that the insurer failed to pay reasonable and necessary medical expenses because the insurer only reimbursed DPW for its lien rather than paying the provider what it would be entitled to under Act 44. The claimant presented testimony from one of his medical providers who agreed that they typically accept DPW’s payment as full satisfaction of their bill, but in this case they billed the insurer the difference between their total bill and what they received from DPW. 

 

Commonwealth Court held that once the provider accepts DPW’s Medicaid payment, the provider could not recover from the insurer, the higher amount set forth in the Workers’ Compensation Act. The Court noted that once it accepts DPW’s payment, a provider is prohibited by Federal law from recovering further amounts from the claimant or from any other source, including the workers’ compensation insurer.

 

In Warnosky v. W.C.A.B. (Mellon Bank), No. 367 C.D. 2008, the claimant was injured while crossing a public street between the employer’s parking lot and the employer’s building. The WCJ denied a Claim Petition finding that the claimant was not in the course and scope of her employment at the time of her injuries. The Appeal Board affirmed.

 

Commonwealth Court acknowledged that there are situations where a sidewalk or a road might be considered part of the employer’s premises, but in those situations the site of the accident was “an integral part” of the employer’s premises. With respect to Ms. Warnosky, the Court noted that the claimant was not required to park in the employer’s parking lot as she could park her car where she wanted, including on the street. Also, the claimant could choose any mode of transportation to/from work and she was not required to drive. Ultimately, Commonwealth Court held that the site of claimant’s accident, i.e. the street near her place of employment, was not an integral part of the employer’s premises. Therefore, the Court held that the claimant was not in the course and scope of employment at the time of her accident.

 

The claimant filed a fatal claim petition in Mary Patton, Widow of Audley K. Patton v. W.C.A.B. (Lane Enterprises, Inc.), No. 2363 C.D. 2007, arguing that she was entitled to a statutory presumption under the Act that her welder husband’s End Stage COPD and pulmonary fibrosis were related to his employment. However, the WCJ accepted the testimony from employer witnesses that claimant did not die from work-related conditions so the Fatal Claim Petition was denied. The Appeal Board affirmed.     

 

The claimant argued to Commonwealth Court that under Section 301(e) of the Act, she was entitled to a presumption that her husband died from work-related conditions. Section 301(e) states, in part, that if it is shown that the employee was employed in any occupation/industry in which the occupational disease is a hazard, there is a rebuttable presumption that the employee’s occupational disease arose out of the employment. While the Court acknowledged that Section 301(e) sets up such a presumption, the Court observed that the WCJ credited the testimony of the employer’s medical experts who both testified that the deceased did not die from an occupational disease. According to the Court, since the WCJ credited the evidence that the deceased did not even have an occupational disease, the claimant was not entitled to a presumption that the deceased’s conditions arose out of his employment.

 

Another issued raised by the claimant, was the WCJ’s rejection of the cause of death listed on the Death Certificate. The Death Certificate, which was admissible as proof though not conclusive proof, listed the immediate cause of death as End Stage COPD and the underlying cause of death as pulmonary fibrosis. The Court looked to the WCJ’s finding that a diagnosis of pulmonary fibrosis was not credible in light of the testimony from the employer’s witnesses that the deceased did not have pulmonary fibrosis. Since the WCJ found that the deceased did not have pulmonary fibrosis, the Court upheld the WCJ’s rejection of the cause of death listed on the Death Certificate.

 

In Bullen Companies v. W.C.A.B. (Hausmann), No. 409 C.D. 2008, the claimant suffered from a kidney disease that his doctor opined was related to his employment. The insurer argued that the Claim Petition, filed in 2004, was time barred because the claimant did not provide notice of the injury within 120 days of the occurrence of the injury as required by Section 311. The WCJ granted the Claim Petition and the Appeal Board affirmed.

 

Commonwealth Court disagreed with the insurer that the claimant’s notice to the insurer was untimely. The Court reviewed Section 311 which suggests that in cases where the nature of the injury or its relationship to the employment is not known, the time for giving notice shall not begin to run until the employee knows, or by the exercise of reasonable diligence, should know of the existence of the injury and its possible relationship to the employment. The Court held that this Section applied to the claimant’s kidney disease and the Court observed that the claimant did not know that his kidney disease was work related until being told by his doctor in March of 2005 (even though he filed the Claim Petition in 2004). The Court rejected the insurer’s argument that the claimant knew in 2002 that his condition was work-related even though in 2002 the claimant thought that his condition was work-related and even retained an attorney to file a Claim on his behalf. The Court held that a claimant’s suspicion, intuition or belief is not sufficient to start the 120 day notice period of Section 311. The Court ultimately held that the 120 day period begins to run when the claimant has knowledge that there was an injury and the injury is possibly related to the job.