Claimant’s Review Petition untimely when filed seven years after last payment of compensation and ten years after scar became permanent

Claimant in Kelly v. W.C.A.B. (Standard Steel), No. 1434 C.D. 2006, suffered an injury in June of 1991 described as an elbow strain and in February of 1993 he underwent neck surgery. A supplemental agreement reflected that claimant last received benefits on June 16, 1997. In March of 2004 claimant filed a Review Petition alleging that he sustained a serious, permanent and disfiguring scar as a result of the neck surgery. Claimant also filed a Claim Petition to expand the “right elbow” injury to include a cervical injury.

Before the WCJ, the parties presented a Stipulation amending the NCP to include an HNP at C6-7 relating to the original injury. In this Stipulation, claimant acknowledged that he was aware as of August of 1993 that the scar was disfiguring. The parties agreed, via the Stipulation, that the only issue left to be addressed by the WCJ was the Review Petition with respect to the scar. Ultimately, the WCJ denied the Review Petition, concluding that it was not filed, according to Section 413(a) of the Act, 77 P.S. §§771-772 within three years of the date that the scar became permanent—August of 1993. The Appeal Board affirmed the dismissal of the Review Petition.

The Court agreed with the WCJ and the Appeal Board that the Review Petition was time-barred. The Court noted that Section 413(a) of the Act indicates that a Review Petition must be filed within three years of the date of the most recent payment of compensation. The Court also noted that claimant’s Review Petition, filed in March of 2004, was filed seven years after he last received compensation and ten years after the disfigurement became permanent. Thus, the Court concluded that the Review Petition was obviously untimely.

Claim for hearing loss not timely when filed 10 years after last exposure to noise

In City of Scranton v. W.C.A.B. (Roche), No. 1243 C.D. 2006, claimant retired from the police force in 1992. In November of 2002 he discovered that he had an occupational hearing loss and a Claim Petition was filed in January of 2003.

Before the WCJ, claimant testified that he became a police officer in 1957 and several times a year he was required to qualify with his firearm. Claimant also stated that when he became a detective, his office was above the fire department’s maintenance garage and a fire bell would ring loudly in his office and claimant stated that he was exposed to the noise of the fire trucks being repaired. It was claimant’s testimony that in 1985 he began having hearing problems but it was not until 2002 that he was advised that his hearing loss was work-related.

The WCJ granted the Claim Petition and the City appealed. The Appeal Board remanded for the WCJ to address whether the Claim Petition was time-barred. Upon remand, the WCJ determined that the Petition was not time-barred because claimant gave notice in 2002—when he discovered that his hearing loss was work-related. The Appeal Board affirmed the WCJ.

The issue according to Commonwealth Court was whether a claim for hearing loss due to repetitive trauma must be filed within 3 years of the last date of exposure or within 3 years of the date that a claimant discovered that the hearing was work-related.

In ruling against claimant, the Court held that the discovery rule is not applicable to claims for hearing loss due to repetitive occupational noise exposure. Thus, the Court held that because claimant was last exposed to hazardous occupational noise in 1992 and he did not file his Claim Petition until 2003-the Claim Petition was untimely.

No “class action” claim petitions can be filed

Claimant in Brendley, on behalf of himself and all other similarly situated persons v. Pa. Dept. of Labor & Industry, Bureau of Workers’ Compensation, W.C.A.B. and Rohm & Haas, No. 544 M.D. 2006, filed a civil class action lawsuit seeking costs associated with medical monitoring, such as diagnostic testing to aid in the early detection of brain cancers, based on claimant’s assertion that employees of Rohm & Haas had an increased incidence of brain cancers due to the nature of their work. Claimant admitted that he was not injured but he wanted the company to pay for the monitoring to allow for early detection of the diseases. (The civil matter case was put on hold while a workers’ compensation Claim Petition was litigated).

In his workers’ compensation Claim Petition, claimant sought medical monitoring for himself and others similarly situated. The Bureau returned the Petition suggesting that each claimant would have to file a Claim Petition. Claimant attempted the appeal this, but the Appeal was returned with a notation that, “ the attached copy of the Claim Petition was a two-sided copy.” No other action was taken after receipt of this letter.

Claimant then filed a Petition with Commonwealth Court under the Court’s original jurisdiction. In this Petition, claimant sought a declaration as to whether or not the Workers’ Compensation Act allowed for compensation to uninjured claimants seeking medical monitoring and whether the Act permitted the filing of “class action” Claim Petitions. The Bureau filed Preliminary Objections on the basis that Commonwealth Court did not have jurisdiction over the Petition, because claimant had not exhausted this administrative remedies by going before a WCJ.

Commonwealth Court granted the Bureau’s Preliminary Objections and directed claimant to file a Claim Petition to be heard by a WCJ. The Court also issued a ruling that there was no such thing as a “class action” Claim Petition so if any employee of Rohm & Haas felt they had suffered an injury, they would have to file their own Petition.

Even though the Preliminary Objections were granted, Commonwealth Court did enter into an analysis was to whether or not an uninjured claimant, seeking medical monitoring, had suffered a compensable injury. The Court concluded that Mr. Brendley very well might be entitled to compensation because the Pennsylvania Supreme Court has held in the past that the Workers’ Compensation Act contemplates that work-related harm includes “any hurtful or damaging effect which may be suffered by anyone” and that “risk of harm” may constitute an injury.

As suggested, Mr. Brendley’s claim must still be heard by a WCJ, but Commonwealth Court’s Opinion certainly suggests that a healthy person, exposed to hazardous materials, might have a risk of harm that would be a compensable injury.

Claimant found to be retired by removing himself from the work force could not file a later Reinstatement Petition

A WCJ found that claimant in Ragno v. W.C.A.B. (City of Philadelphia), No. 924 C.D. 2006, had retired and voluntarily removed himself from the work force as of August 28, 1997.

Claimant filed a Reinstatement Petition seeking benefits as of January 1, 2002 on the basis that his work-injury caused decreased earning power. The WCJ granted the Reinstatement Petition and ordered the City to pay benefits as of January 1, 2002 and continuing. The City appealed on the basis that the WCJ failed to take into account claimant’s voluntary retirement as of August 28, 1997. The Appeal Board accepted this argument and reversed the WCJ.

Before Commonwealth Court, claimant argued that the Appeal Board erred in determining that a voluntary retirement can never be undone, even if claimant is actively looking for work. Meanwhile, the City argued that collateral estoppel and res judicata prevented claimant from re-litigating issues surrounding his retirement. The Court accepted the City’s argument because the Court noted that claimant could have previously proven that he was forced out of the work force due to the work injury but had failed to do so. Since it had already been determined that claimant had voluntarily removed himself from the work force he could not later try to prove that it was the work injury that forced him into retirement.

Reinstatement Petition not appropriate method to attack prior un-appealed Decision and Order

In Huynh v. W.C.A.B. (Hatfield Quality Meats), No. 30 C.D. 2007, claimant filed a Reinstatement/Review Petition with respect to an April 7, 1997 injury. However, the circumstances of the case demonstrated that prior to the filing of this Reinstatement/Review Petition, a WCJ had issued a Decision granting a Termination Petition with respect to the April 7, 1997 injury.

In the previous Decision granting the termination petition, the WCJ credited the opinions of Dr. Mauthe and in so doing found that claimant had recovered from work-related injuries in the nature of a “contusion to head and ribs.” This Decision was not appealed.

As for the Reinstatement/Review Petition, claimant argued that his benefits should be reinstated because in the previous round of litigation, Dr. Mauthe failed to opine that she had recovered from the “contusion to head” so insurer previously failed to establish that claimant had recovered from the acknowledged work injury. The WCJ agreed with claimant and reinstated benefits on the basis that insurer had previously failed to prove that claimant had recovered from all her injuries. The Appeal Board reversed the WCJ.

Commonwealth Court agreed with the Appeal Board that the Reinstatement/Review Petition was noting more than an attempt to re-litigate issues that had already been determined, i.e. whether claimant had recovered from the head contusion. The Court agreed that Dr. Mauthe did not opine that claimant had recovered from the head injury and the prior Decision granting the termination would have been reversed on Appeal. However, the Court held that because no Appeal had been filed, that prior Decision became final and the finding of a recovery from the head injury was likewise final. Since that finding was final, claimant could not argue otherwise in a subsequent petition.

Notice of Compensation Payable amended to reflect injury as described by insurer’s medical expert even though claimant filed Review Petition

Insurer in DeGraw v. W.C.A.B. (Redner’s Warehouse Markets), No. 2036 C.D. 2006, filed an NCP recognizing an injury in the nature of an “aggravation of L5-S1 radiculopathy.” However, a day before the NCP was issued; claimant filed a Claim Petition, later amended to a Review Petition, averring that his injuries included an aggravation of a pre-existing degenerative condition resulting in a bulging disc at L3-4 and herniations at L4-5 and L5-S1. Insurer later advised claimant and the WCJ that it was seeking to amend the NCP to reflect an injury in the nature of a “lumbosacral sprain”.

The WCJ granted claimant’s Review Petition but only amended the NCP to reflect an injury in the nature of a lumbosacral strain. In so doing, the WCJ credited the opinion of insurer’s medical expert that the injury was limited to a lumbosacral sprain and the WCJ rejected the testimony of claimant’s medical expert that the injury went well beyond a mere sprain.

Before Commonwealth Court, claimant argued that the WCJ erred in concluding that the injury was limited to a sprain because insurer’s medical expert’s opinion lacked a proper foundation so it was not worthy of belief. Commonwealth Court held that a WCJ is the final arbiter of credibility and because she credited the testimony of the insurer’s medical expert that the injury was only a lumbosacral sprain, the Court would not overturn that finding. In so doing, the Court reviewed the opinion of insurer’s medical expert and determined that the opinions were based on a proper foundation.

WCJ allowed to credit insurer’s expert as to amount of hearing loss yet reject that expert’s opinion that the hearing loss not work-related

In Helvetia Coal Company & General Recovery, Inc. v. W.C.A.B. (Learn), No. 592 C.D. 2006, claimant’s medical expert opined that claimant had a work-related 20.3% binaural hearing loss while insurer’s medical expert opined that claimant had a 34.7% binaural hearing loss that was not work-related.

The WCJ accepted the testimony of claimant’s medical expert that the hearing loss was work-related but the WCJ rejected the opinion that there was a 20.3% binaural hearing loss. The WCJ then credited insurer’s medical expert’s opinion that there was a 34.7% binaural hearing loss but the WCJ rejected the opinion that it was not work-related.

Insurer argued to Commonwealth Court that no evidence existed to support a finding of a work-related 34.7% binaural hearing loss because it was inconsistent for the WCJ to credit the opinion of its expert that there was 34.7% hearing loss and then reject that same expert’s opinion that the condition was not work-related. The Commonwealth Court refused to accept this argument on the basis that the WCJ was free to accept the opinion of insurer’s medical expert that there was a 34.7% binaural hearing loss, then reject the opinion that the condition was not work-related and in turn the WCJ was free to accept the opinion of claimant’s medical expert that the hearing loss was work-related.

Insurer also questioned the WCJ’s finding that the hearing loss was permanent, because ten months after insurer’s medical expert found a 34.7% binaural hearing loss, claimant’s medical expert found a 20.3% hearing loss. Commonwealth Court rejected this argument on the basis that claimant’s medical expert testified that there could be some discrepancies between the results of two audiograms and the Court noted that the WCJ accepted the testimony of claimant’s medical expert that the discrepancies between his audiogram results and the audiogram results of insurer’s medical expert, were within an acceptable range.

Claimant’s Review Petition as to AWW calculation dismissed because AWW already addressed via earlier Review Petition

Claimant in Merkle v. W.C.A.B. (Hofmann Industries), No. 1586 C.D. 2006, was injured on March 13, 1998 and he filed a Review Petition in 1999 arguing that employer had improperly calculated his AWW. In March of 2000 a WCJ issued a Decision and Order denying the Review Petition. Claimant appealed and Commonwealth Court ultimately issued an Opinion at Merkle v. W.C.A.B. (Hofmann Industries), 796 A.2d 1034 (Pa. Cmwlth. 2002), upholding the WCJ’s dismissal of the Review Petition. In upholding the dismissal of the Review Petition, the Court held that employer did not err by including in the calculation of the AWW, periods of time that claimant was off work receiving workers’ compensation benefits for a February of 1997 injury. The Supreme Court refused to hear claimant’s appeal.

In the case of Zerby v. W.C.A.B. (Reading Anthracite Company), 831 A.2d 193 (Pa. Cmwlth. 2003), Commonwealth Court reversed its earlier decision in Merkle and in so doing the Zerby Court held that periods of time where a claimant was off work due to prior work injury are not to be included in the calculation of an injured worker’s AWW for a second injury, but instead the AWW from the first injury is to be used to calculate the AWW for the second injury.

In light of the Court’s holding in Zerby, claimant filed a second Review Petition arguing that his AWW should be re-calculated. The WCJ denied the second Review Petition on the basis that changes in the law are not be applied retroactively to case that have already been decided. The Appeal Board affirmed.

Commonwealth Court affirmed the WCJ and the Appeal Board by holding that the doctrine res judicata barred claimant’s second Review Petition because the issue as to the calculation of claimant’s AWW was decided by the Court in Merkle I. Therefore, even though claimant’s AWW very well may have been increased using the Court’s reasoning in Zerby, claimant could not avail himself of that possible increase because his AWW had already been judicially determined.

WCJ allowed to address fee dispute between claimant’s current and former attorneys

In Hendricks v. W.C.A.B. (Phoenix Pipe and Tube), No. 237 C.D. 2006, an issue surrounding attorney’s fees requests from claimant’s former and current attorneys was addressed

Claimant was injured in April of1992 and in September of 1995, insurer filed a Termination Petition. Claimant retained Attorney Adam Sager to defend against the Termination Petition. While this case was being litigated, insurer was paying 20% fees to Attorney Sager with the remaining 80% being paid to claimant. The WCJ denied the Termination Petition so claimant and Attorney Sager continued to receive their checks.

In April of 2002, claimant terminated the services of Attorney Sager, and hired Attorney Paul Silver. Attorney Silver filed a Petition for Approval of Counsel Fees with the Appeal Board, asking that the Appeal Board approve his 15% fee agreement. In June of 2003, the Board rejected Attorney Silver’s request, on the basis that Attorney Sager was already receiving counsel fees. The Appeal Board did note that no additional petitions had been filed so it did not see that there was a need for new counsel.

In November of 2004, claimant, through Attorney Silver, filed a Penalty Petition on the basis that claimant’s medical bills were not being paid. In March of 2005, the WCJ issued an Interlocutory Order approving Attorney Silver’s fees. Thereafter, insurer ceased making payments to Attorney Sager and Attorney Sager then filed a Penalty Petition due to insurer’s failure to pay him his 20% attorney’s fees.

As for the first Penalty Petition addressing the alleged non-payment of medical bills, claimant and Attorney Silver asked that the Penalty Petition be withdrawn. The WCJ issued an Order dismissing the Penalty Petition, approving Attorney Silver’s fees, and also dismissing Attorney Sager’s Petition, on the basis that a WCJ does not have the ability to resolve a fee dispute, but instead that authority lies with the Court of Common Pleas.

Attorney Sager filed an Appeal from the WCJ’s Decision. Attorney Silver filed a motion with the Appeal Board to quash the Appeal. The Appeal Board denied Silver’s motion and addressed the merits of Attorney Sager’s appeal. The Appeal Board reversed the WCJ’s Decision and directed insurer to pay 20% fees to Attorney Sager. The Appeal Board reasoned that the WCJ had approved Attorney Sager’s fees in 1996 and that fee agreement was not extinguished simply by claimant’s retention of a new attorney. Attorney Silver filed a Petition for Review with Commonwealth Court.

After much legal analysis, Commonwealth Court held that a WCJ and the Appeal Board do have the authority to address attorney’s fees issues in workers’ compensation proceedings. The Court determined that the matter should be remanded to the WCJ for the WCJ to review the amount and type of work performed by both Attorney Silver and Attorney Sager, and determine if Attorney Sager has, in fact, been fully compensated for the work he performed.