Pennsylvania Case Summaries
Labor Market Surveys: Riddle v. WCAB, ___A.2d ___ (Pa. Supreme 2009)
Holding: Earning power assessment for out-of-state resident injured in Pennsylvania must be focused in Pennsylvania.
Facts: Claimant, a West Virginia resident, was injured in Pittsburgh. As he was unable to return to work at the time of injury employer, Labor Market Survey (“LMS”) was instituted; focused on jobs in West Virginia as opposed to Pittsburgh.
Logically believing it was more appropriate to search for jobs within claimant’s residential area, LMS focused solely on jobs in West Virginia. Modification of compensation was granted and modification was affirmed up to Supreme Court of Pennsylvania, which summarily reversed.
Court took a literal view of the statute. noting dichotomy existed between those who resided in Pennsylvania and those who did not: for those living in Pennsylvania, job vacancies must exist “in the usual employment area in which the employee lives within the Commonwealth”; however, “if the employee does not live in this Commonwealth, then the “usual employment area where the injury occurred” shall apply.
So, even though jobs were located closer to the claimant’s home in West Virginia, the defendant ultimately lost case because of strict construction of the statute.
Impairment Rating Evaluations: Johnson v. WCAB, ___ A.2d ___ (Pa. Commw. 2009).
Holding: “Late” appeal by claimant of IRE determination will be limited in scope.
Facts: Act 57 permits procedure of requesting Impairment Rating Evaluations (IRE’s) to be conducted to commence running the 500 weeks of partial disability. Here, claimant challenged the rating more than 60 days after change of status had taken place, arguing statute provided an appeal may be taken “at any time during the 500 week period of partial disability (i.e., during the entire 500 weeks).” While the court agreed this is true, if an appeal is filed more than 60 days after change of status from total to partial disability, it is limited to a demonstration that disability in fact is 50% or greater (thus putting the claimant back at total disability status).
Claimant has right to appeal IRE determination; however, if no appeal from determination and change of status within 60 days, then an appeal must be premised on the disability 50% or greater.
Refusal to Attend Independent Medical Examination: Giant Eagle, Inc. v. WCAB,
__ A.2d ___, (Pa. Commw. 2009)
Holding: Judge now has discretion to suspend medical as well as wage loss benefits when claimant fails to attend IME.
Facts: When a claimant refuses to attend a medical examination requested by the employer, an employer may petition for an Order compelling the examination. If claimant still refuses to attend after an order is entered, employer then has option to petition to suspend benefits. Here, claimant still refused to attend IME even though ordered to go. Employer pushed for suspension of both indemnity and medical benefits, based on “forfeiture” provisions of the Act.
Until this case, Judge’s discretion to suspend benefits appeared limited to indemnity benefits. This case expands that scope, stating that Section 314 of the Act refers to a claimant’s forfeiture of the “right to compensation”; since wage loss and medicals are both “compensation”, Judge in his discretion may now suspend both indemnity and medical benefits.
Modification of Compensation: Sufficiency of rebuttal proof by claimant: World Kitchen, Inc. v. WCAB, __ A.2d __ (Pa.Commw. 2009)
Holding: Claimant’s subjective belief of “inability” to do job insufficient to block modification/suspension of benefits
Facts: Employer presented medical evidence that the claimant could work 40 hours a week and up to 10 hours a day on a single day. Judge credited that testimony and modified benefits. Although claimant “tried” job, attendance was spotty. Employer filed Notification of Modification based on 40 hour work week but also filed Modification Petition. Claimant testified she was not always able to do full-time work because she had ongoing back pain. Claimant, however, submitted no medical evidence.
Instead of modifying benefits based on 40 hour week job, Judge, simply ruled the benefits remain “modified or suspended based upon claimant’s actual earnings.” Commonwealth Court reversed. Employer’s medical proof was unrebutted. Claimant’s own statement that she was unable to work full time because her back “hurt” held inadequate to rebut employer’s proof.
Court noted it had previously explained in another case that “a claimant’s subjective belief about her work abilities, which is not supported by medical restrictions imposed by a physician, is insufficient to defend a modification proceeding”, (citing Walk v. WCAB, 659 A.2d 645 (1995)).
Two Injuries: Does statute of limitations run on both simultaneously?: Reutzel v. WCAB, __ A2d. __ (Pa.Commw. 2009)
Holding: Statute of limitations on two injuries can run simultaneously, benefits are not suspended on the first.
Facts: Claimant sustained two different injuries: a right shoulder injury in February 1996 and a back injury in May 1997. After first injury, she returned to work with restrictions, at loss of earnings (i.e., on partial disability). Still working in this position at time of May 1997 back injury.
She continued to work after second injury until she had surgery in 2003 for that (low back) injury. She missed 90 days of work, then returned to her restricted duty position. On June 1, 2006, employer unilaterally stopped paying TTD benefits altogether. Reason: it contended 500 week maximum period of partial disability benefits had been exhausted. Amazingly, Judge, Board and Commonwealth Court agreed with employer’s position.
Court noted that claimant essentially continued to be “partially disabled” from both injuries from date of second injury. Therefore 500 weeks began to run on second claim immediately; and 500 weeks continued to run on first claim.
Court held there was no statutory basis for suspending partial disability benefits for the second injury while receiving partial disability for the first injury, or vice versa.
Note: it appears the 90 days of total disability for the second injury (i.e., for surgery) must have been taken into account, in arriving at “drop dead date”, thus extending the 500 weeks until approximately June 1, 2006.
Modification: Claimant discharged for pre-injury fault: Harvey v. WCAB, __ A.2d __ (Pa.Commw. 2009)
Holding: Employee terminated for non-work related reasons may be suspended/modified if job would have been available “but for” termination for cause.
Facts: Claimant employed as nurse and involved in a work-related motor vehicle accident. Injuries were severe, requiring spinal fusions. Initially, employer disputed case on grounds the injury did not arise in course of employment, however, Judge granted Claim Petition.
However, Judge also determined claimant was discharged from employment after the accident for reasons unrelated to the work injury. Reason: immediately after accident, police found evidence claimant had been withdrawing narcotic medication from employer’s supplies and using it. Her nursing license was ultimately revoked.
Four (4) years later, employer filed for modification, but did not offer the claimant work (normally a prerequisite for modification) because of her lack of nursing license; it did nevertheless identify vacant jobs that the claimant could have done “but for” the claimant’s termination from employment for conduct not related to the work injury.
Judge granted modification, accepting employer’s proof and theory of the case. The Commonwealth Court affirmed, noting that while employer was required to identify “actual available positions”, it was not required to offer those positions to claimant based on her termination or for violating employer’s narcotic medication policy and her suspended nursing licence.
Court agreed that offering a job in those circumstances “would be a futile act and would promote form over substance.”
Notice: Insufficient to Comply with the Act: Gentex Corp. v. WCAB, __ A.2d __, (Commonwealth Ct. 2009)
Holding: Claimant merely stating “I have a work related problem” insufficient to comply with statutory notice provisions of Act.
Facts: Claimant was a long time employee. She experienced gradual onset of problems with her hands, took some time off and applied for short term disability. In her STD application, stated her condition was not work-related. In the application, also noted other ailments including problems with her knees, ankles and high blood pressure.
Later in the month, she learned from her doctor her hand and wrist complaints were attributable to her employment. She “attempted to call” the HR and Benefits Manager on several occasions, leaving voicemails indicating that she had “work-related problems” and never returned to work.
Commonwealth Court held this was insufficient to establish statutory 120 day notice: merely saying she had “work-related problems” was insufficient. Such a vague statement is “insufficient to satisfy the Act’s notice requirement.” Court pointed to fact that the claimant had filled out STD Application referring to body areas not affected by her repetitive work activities, employer was left in a quandary as to just exactly what the alleged problem was. Hence, insufficient notice and claim dismissed.
Course of Employment: Off-premises break: Department of Labor & Industry v. WCAB, __ A.2d __ (Pa.Commw. 2009)
Holding: Simply because employee is “on the clock” doesn’t mean the injury is compensable.
Facts: Employer’s business was located in an industrial park. Claimant took paid break during lunch, departed the building, and walked out onto street which was part of the industrial park. Claimant fell, sustaining a right arm fracture.
Since claimant was not on any particular “mission” for the employer, and her presence on the street had not been required or requested, claimant was unable to prove that she was “actually engaged” in the furtherance of the employer’s business or affairs when she was injured.
Even though street was part of the industrial park where employer’s business was located, this was insufficient to bring claim within “course of employment” and benefits were therefore denied.
Suspension of Benefits: Effect of medical release to “any employment”: Consolidated Pennsylvania Coal Company v. WCAB, __ A.2d __ (Pa.Commw. 2009)
Holding: Doctor’s release to “any job”, but without full recovery and without job offer will not entitle employer to suspension of benefits.
Facts: Claimant suffered forearm fracture, was paid benefits and underwent treatment with orthopedic surgeon. He had surgery on the arm.
Sixteen months later, treating doctor released the claimant “without restrictions to full duty”. Although doctor released claimant to “any” position he did not certify claimant as “fully recovered.” No job was offered by employer. No other job availability was shown either. Employer admitted that claimant was not “fully recovered”, but argued that release to “any” job relieved it of duty to offer work.
Without such an offer, or proof of “full recovery, modification petition was doomed. Employer lost case because it did not show any job availability.
Suspension of Benefits: Proof of Employee’s “under the table” earnings: Alessandro v. WCAB, __ A.2d __ (Pa.Commw. 2009)
Holding: When claimant hides earnings and employment, Judge may “impute” earnings and order suspension of benefits.
Facts: Claimant was injured and voluntarily place on benefits pursuant to NCP. Through surveillance, it was determined that claimant was working surreptitiously as an auto body repairman. Claimant kept no record of any money received and at hearing punitive employer denied employing claimant at all.
This story, however, differed greatly from statements “employer” had made to private detective. Videotape showed claimant at “employer’s” business, but did not depict him performing actual work. An IME physician observed callouses on claimant’s right palm and ground-in dirt, indicating use of the right hand.
After hearing this evidence, the Judge, surprisingly, suspended benefits “until such time that claimant provides information regarding his current earnings.”
On appeal, despite hearsay objections, evidence was found sufficient to establish both that claimant was working and had earnings.
Court applied a little used case which is useful in situations where claimant has obtained employment “under the table” and/or has become self-employed with potentially questionable accounting for earnings. Under this case, Brehm v. WCAB, 782 A.2d 1077 (2001), a claimant “who refused to provide financial information necessary to ascertain whether he is working [presumably also including the question as to the amount of wage earnings] may have his indemnity benefits suspended until such information is provided.”
Refusal of Reasonable Medical Care: “Detox” Treatment: Bereznicki v. WCAB (Pa.Commw. 2009)
Holding: Benefits may be suspended when “addicted” claimant refuses offered detox treatment.
Facts: In this unpublished decision, Court affirms the grant of a suspension petition based on Section 306 (f.1)(8) of the Act for claimant’s refusal of “reasonable medical treatment” that would have improved her ability to functionally or her ability to return to work.
Employer contended claimant was receiving medication treatment that was unreasonable and/or unnecessary (claimant was taking number of the well-known medications such as Methadone, Oxycodone, Neurontin, etc.). Based on medical testimony presented by employer, Judge determined claimant needed “detox” program to wean off of most of her medications. Importantly, employer offered claimant admission to such a program. Claimant refused the offer.
Employer petitioned to suspend benefits alleging claimant forfeited benefits based on refusal of reasonable medical care. Employer proved it was prepared to provide chronic pain management program allowing claimant to return to normal function by decreasing toxic doses of her medications.
Judge agreed, finding: (1) program would decrease toxic dose of opioids and would be in “claimant’s best medical interest”; (2) it involved very little risk; and (3) although program would not help claimant return to pre-injury job, it would make it possible for her to be “more functional”. This result was affirmed by Commonwealth Court in an unpublished opinion.
Employee Misconduct: Defense to Payment of Benefits: Melton v. WCAB (Pa.Commw. 2009)
Holding: An immediate offer of return to work after an injury coupled with employee misconduct can drastically cut the ost of a claim.
Facts: Claimant worked for trash hauler as truck driver. He said that on date of injury, driver’s side door swung open unexpectedly and to avoid falling out he held onto the steering wheel, pulled himself back into driver’s seat, and thereby injured his neck and lower back.
Within four (4) days of injury (i.e., during the first 7 days of “disability”), he was released to light duty and employer immediately assigned him to a “scale house” where he performed data entry. His pay, however, was reduced 50% since the driving job paid twice as much as the scale house job.
Claimant had had prior MVA in October 2005 for which he received traffic citation. Under employer’s written policy, drivers (such as claimant) who had a reportable accident within their 90 day probationary period could no longer drive and could be terminated at discretion of general manager. According to employer, it was not aware the offense was DOT chargeable until the date of this injury.
Importantly, Judge believed testimony from employer that claimant was removed from the driver position and placed in the scale house position as a result of the prior traffic accident, not because of his physical condition; therefore wage loss was not causally related to work injury; and therefore non-compensable. Notably, “but for” his demotion, the credible medical evidence established he would have been able to drive the truck.
Unemployment Compensation: Discharged for Willful Misconduct Off the Job Site: Elser v. Unemployment Compensation Board of Review , ___A.2d ___(Pa.Commw. 2009)
Holding: Claimant may be discharged for “out of work” misconduct if a written policy exists and the conduct impinges on the job duties/responsibilities.
Facts: Employer had a specific written policy regarding “community relations and public conduct” setting forth disciplinary actions up to and including termination that could be imposed for employees who failed to adhere to standards of appropriate conduct.
Claimant was at a dinner party and during the evening, claimant inquired of a guest (who happened to be employer’s program administrator), whether he (the administrator) had any “weed” and made graphic and slanderous comments about two former employees. Claimant was then terminated for unprofessional conduct, in violation of the employer’s written conduct policy.
Claimant argued that conduct “off the job” is irrelevant for “willful misconduct” purposes. The Court disagreed. Employer had testified claimant’s comments at dinner party were unacceptable to public standards due to its content. The comments, taken in context of claimant’s actual job (he was required to have contact with students and other youths), Court found claimant’s conduct was inimical to the interest of employer and upheld the termination and denial of benefits.
Expanding Tort Liability: “Spoliation of Evidence”: Minto v. J.B. Hunt Transport, Inc., 971 A.2d 1280 (Pa.Super. 2009)
Holding: Employers should exercise care in disposing of “evidence” that might support employee’s third party action.
Facts: Addressing an apparent case of first impression, Superior Court held that a tort action, sounding in negligence, based on alleged “spoliation of evidence”, is not barred by exclusive remedy provisions of Workers’ Compensation Act.
Claimant suffered significant injuries in a work related tractor trailer accident. A series of lawsuits was filed by claimant, including a suit against J.B. Hunt (his employer) for negligently and/or intentionally destroying or disposing of many parts of the truck, making it virtually impossible for him to prove his products liability claim against the other defendants.
J.B. Hunt sought dismissal of case, invoking the “exclusive remedy” provisions of PA’s Workers’ Compensation Act. Superior Court reversed dismissal of the action, ruling that “the injury here did not arise in the course of employment.” Instead, it arose from a separate set of actions on the part of the employer.
Important Note: The court did not specifically rule whether “spoliation of evidence” is a viable tort claim in Pennsylvania. Heretofore, Pennsylvania has not recognized such a separate tort action, and such a claim must be addressed under traditional negligence principles, citing Elias v. Lancaster General Hospital, 710 A.2d 65 (Pa.Super. 1998).
Pre-injury Release of Tort Liability: Validity of the Release: Bowman v. Sunoco, Inc., __ A.2d ___ (Pa.Super. 2009)
Holding: Pre-injury release by claimant of “clients” of employer is to be given effect.
Facts: In this December 16, 2009 ruling, Superior Court considered the dismissal of a suit filed against Sunoco.
Claimant was an employee of Allied Barton Security Services. As part of the employment “package”, claimant had signed a waiver of rights to file any claims against clients of Allied Barton for damages otherwise covered by workers’ compensation.
While employed by Allied Barton in the service of Sunoco (its client), claimant slipped and fell on snow and ice and sustained personal injury. She then sued Sunoco, who defended on the basis of the pre-employment waiver. The waiver stated as follows:
Worker[s’] Comp Disclaimer
Payment on Work-Related Injuries
I understand that state Workers’ Compensation statutes cover work-related injuries that may be sustained by me. If I am injured on the job, I understand that I am required to notify my manager immediately. The manager will inform me of my state’s Workers’ Compensation law as it pertains to seeking medical treatment. This is to assure that reasonable medical treatment for an injury will be paid for by Allied’s Workers’ Compensation insurance.
As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights I may have to:
- make a claim, or
- commence a lawsuit, or
- recover damages or losses
from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the Workers’ Compensation statutes.
Claimant argued the disclaimer/release should not bar the suit against Sunoco because it improperly waived a cause of action that had not yet accrued; and because it went against other public policy considerations contained in the Workers’ Compensation Act which permit, inter alia, employees to pursue common law actions against third parties for work-related injuries.
Superior Court found no violation of public policy. Here, claimant agreed to extinguish only her rights under the Act to sue third party customers for amounts additional to workers’ compensation benefits already received for her work place injuries. The release, therefore, did not attempt to shield her employer, Allied Barton, from any liability under the Act or to deprive her from compensation for work-related harm.
Had Allied Barton sought to contract away its own statutory obligation to pay workers’ compensation, this would have been invalid; however, here Allied Barton agreed to do exactly what it was required to do under the Act: pay workers’ compensation benefits.
Court also rejected claimant’s argument that release contravened an employer’s right to subrogation, finding that while employer’s right to subrogation is statutorily absolute, the employer may choose to waive it. Allied Barton was therefore free to effectively forego its subrogation rights by contracturally releasing third party customers from liability for compensable work-related injuries to its own employees.
Pre-injury Waiver of Subrogation by Employer: Enforcement by Claimant: Malsch v. Penn Tank Lines, Inc., Bureau Claim No.: 2497933 (WCJ Decision 10/30/09) (No appeal taken).
Holding: Waiver of subrogation by employer may be enforced by injured employee, and result in loss of recovery by employer, even if employee makes a recovery from tortfeasor.
Facts: In this workers’ compensation case (a sort of corollary to preceding case), claimant drove an 18-wheeler tanker truck for Penn Tank Lines. He sued a distributor (Motiva) with which Penn Tank had an ongoing contract. He ultimately settled the case againast Motiva. When Penn Tank learned of the recovery, it demanded subrogation.
Claimant, however, learned that Penn Tank had, prior to the injury, in its contract with Motiva, agreed to waive its own right of subrogation. Claimant then invoked this waiver arguing that Penn Tank was not entitled to subrogation against his recovery because it had waived that right. Citing as precedent a Texas case, American Risk Funding Company v. Lambert, 59 S.W.3d 254 (Ct. Appeals TX 2001), the Judge found that claimant had standing to raise the waiver and rejected Penn Tank’s argument that this resulted in a “double dip” for the claimant.
The Judge here, as had the court in Texas, rejected that argument “The fact that subrogation rights were waived was a consideration by both Appellees and the defendants in arriving at the settlement figure agreed upon. The settlement amount tends to be higher when there are subrogation rights to deal with, possibly making it impossible to settle. Usually, it is easier to settle a personal injury lawsuit when there are no subrogation rights to consider. In order to make third party suits easier to settle, the employer pays the compensation carrier a premium to waive its subrogation rights. The carrier further benefits by not having to litigate its subrogation rights.” Claimant was therefore entitled to enforce the waiver and defeat subrogation.