eNotes: Workers’ Compensation – January 2023 – Pennsylvania
January 25, 2023
SIGNIFICANT CASE SUMMARIES
Pennsylvania Case Summaries
Kratz v. Commonwealth of Pennsylvania, Department of Corrections (WCAB)
Commonwealth Court of Pennsylvania
2022 Pa. Commw. Unpub. LEXIS 527, 2022 WL 17332418
Decided: November 30, 2022
Commonwealth Court defers on creating a “sexual assault” exception to the test applicable for a physical/mental injury.
The Claimant was a nurse employed with the Pennsylvania Department of Corrections. She was tending to an inmate who was seated in a wheelchair. While she administered cough medicine, the inmate grabbed between Claimant’s legs. Claimant reported she had some swelling and tenderness of her genital area for 2 to 3 days after the incident (but no true “medical treatment” for the same), as well as extensive psychological treatment. Claimant filed a claim petition seeking recovery which was denied and dismissed by the WCJ. Specifically, the WCJ found that video evidence of the incident contradicted the Claimant’s statements and, further, the credited opinion of the defense medical expert provided that Claimant’s psychological diagnosis did not match the DSM-5 criteria for post-traumatic stress disorder. Therefore, the WCJ concluded that Claimant did not sustain a physical/mental injury. The WCJ’s Decision was affirmed by WCAB, and Claimant appealed to the Commonwealth Court.
In an unpublished Opinion, the Commonwealth Court held that the WCAB did not err in affirming the WCJ. While the holding is replete with references to the inviolability of a WCJ’s Findings of Fact, provided the same are properly reasoned, the larger issue was the Claimant’s request that the Court adopt a new standard under the Workers’ Compensation Act for a sexual assault/mental injury matter, wherein a claimant suffers a sexual assault in the course and scope of their employment.
The Court held that substantial evidence supported the original WCJ’s finding that Claimant failed to establish that a mental injury resulted from her work related, triggering physical stimulus, notwithstanding the argument that a sexual assault should be considered a physical stimulus even absent a physical injury. The Court specifically noted that this was an argument worthy of consideration, but deferred on the same since they could not decide the issue. Rather, Claimant failed to meet that second prong of the physical/mental test since the WCJ credibly found that the Claimant did not prove that she had sustained a mental injury. Therefore, the Court felt that the WCAB properly affirmed the WCJ’s denial of the underlying Claim Petition.
Thorough and adequate independent medical examinations must be conducted as should thorough medical record retention and gathering. Here, the claim was able to be disputed since the defense had adequately explored the Claimant’s past psychological history and treatment. However, it must be borne in mind that the Commonwealth Court was quick to point out, and specifically stated, that: “because we conclude that the WCJ did not err in concluding that Claimant failed to establish the second prong of the physical/mental injury because she failed to demonstrate that she suffered a mental injury, Claimant’s alternative issue asking this Court to adopt a ‘sexual assault/mental injury’ standard (which would do away with having to prove a noticeable physical injury requiring medical treatment) will have to wait for another day.” Therefore, it is eminently clear that the Commonwealth Court would be in a position to strongly consider such an exception should the right case come before it.
Any questions regarding this case can be addressed to Ryan C. Blazure, Esquire, at (570) 825-3867 or email@example.com.
Wormley v. Air Wisconsin Airlines (WCAB)
Commonwealth Court of Pennsylvania
No. 89 C.D. 2022
Decided: November 22, 2022
Flight attendant injured while taking train to airport for commuter flight to another airport was not in the course and scope of employment.
The claimant worked as a flight attendant for an airline operating out of Philadelphia and Chicago airports. After the claimant was reassigned from Philadelphia to Chicago, she chose to stay in Philadelphia rather than relocate to Chicago. Consequently, the claimant commuted to work by flying from Philadelphia to Chicago the night before her shift was scheduled to start. The claimant regularly took the train to get to Philadelphia International Airport, but fell on December 5, 2019 while attempting to board the train on her way to work. The claimant was wearing her uniform at the time of the injury. The employer did not reimburse the claimant for train fares, hotels, or commuter flights. The WCJ found that the claimant was not injured in the course and scope of employment, and denied the Claim Petition. The Board affirmed, and the claimant appealed to the Commonwealth Court.
The Commonwealth Court affirmed the Board. The Court rejected the claimant’s argument that traveling by train to Philadelphia Airport to fly to Chicago Airport was a reasonable way for her to access the employer’s premises. The employer did not own, maintain, or control the train or the train platform. Moreover, it was the responsibility of the claimant to figure out how to get from Philadelphia to Chicago for work. The Court distinguished the instant case from US Airways, Inc. and Stewart – two recent cases which involved injuries on shuttles to the place of employment. First, the claimant was not entering or exiting her workplace within a reasonable time before or after her shift. Second, the claimant’s presence at the train station was not required by the nature of her employment. Accordingly, the Court held that the injury did not occur within the course and scope of employment, and affirmed the Board.
This case presents an important limiting principle to recent authority expanding the course and scope of employment to include injuries while utilizing transportation to commute to work.
Questions about this case can be directed to John T. Morgan, Esq., at (267) 861-7580 or firstname.lastname@example.org.
Chamberlin v. Commonwealth of PA
Commonwealth Court of Pennsylvania
No. 61 C.D. 2022
Decided November 6, 2022
In order to receive an award of litigation costs the claimant must establish some financial benefit from the Decision
The claimant suffered an injury while working for the employer which was accepted as a work-related right shoulder labrum tear and rotator cuff tear. Petitions for Review were filed by the claimant seeking to expand the nature of the injuries to include a multitude of additional diagnoses. One of the diagnoses sought to be included was a diagnosis of a biceps tenodesis procedure which was documented in the employer’s IME. The Workers’ Compensation Judge denied the claimant’s Review Petitions but for the diagnosis of the biceps tenodesis procedure. The Judge did not award any costs of prosecution for claimant’s medical because he acknowledged that while claimant did succeed in adding the biceps injury to the diagnosis of the work injury, that issue was not really in dispute as the IME physician even agreed that it was part of the work injury. The Workers’ Compensation Appeal Board affirmed this decision.
The Commonwealth Court found that the success in adding a right biceps tenodesis to the description of the work injury did not confer any financial benefit to the claimant and therefore costs were not awarded. It was noted that the medial bills for that diagnosis had been paid by the employer and not even the claimant could articulate any financial benefit from the expansion of the work injury in his brief. As such, because there was no financial benefit in adding the description of the injury, no costs were awarded.
In the past, Judges would routinely grant petitions in part so as to reimburse claimant counsel for their costs of prosecution. In the future where petitions are granted in favor of a claimant, an examination of the Judge’s decision needs to be made to determine whether or not there was any financial gain to the claimant. If there was not, there is an argument to be made that costs should not have been awarded.
Questions about this case can be directed to Sean B. Epstein, Esquire at 412-926-1451 or email@example.com.
Wescoe v. FedChem, LLC and State Workers’ Insurance Fund (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania
No. 1393 C.D. 2021
Decided: December 7, 2022
The Commonwealth Court affirmed grant of Defendant’s Modification Petition, finding that Defendant sustained its burden of proving continued job availability, and overturned the WCJ’s award of litigation costs, as it agreed that Claimant did not prevail on any contested issue.
The matter originated from a Modification Petition filed by Defendant in August 2016. After a decision denying this Petition, Defendant was successful on appeal in arguing that the WCJ failed to provide credibility determinations concerning the vocational evidence, as well as arguing that the WCJ improperly found that the jobs identified in the labor market survey were not open and available to Claimant based upon Phoenixville. On remand, the WCJ granted the Modification Petition, finding that Defendant sustained its burden of proving that Claimant was qualified to perform one (1) of five (5) jobs identified in the labor market survey. The WCJ also awarded litigation costs to Claimant because Claimant was “successful in part” in defending against the Petition. The WCAB affirmed the WCJ’s grant of Defendant’s Modification Petition, while overturning the award of litigation costs. The WCAB specifically noted that a claimant must prevail on a contested issue to be entitled to litigation costs. In this case, the only contested issue was the Modification Petition, which Claimant was unsuccessful in defending against. Claimant appealed the WCAB’s Opinion, arguing that the WCJ’s Decision improperly shifted the burden of proving that the positions identified by the vocational expert were open and available, as well as arguing that the WCJ properly awarded litigation costs.
The Commonwealth Court affirmed the Opinion of the WCAB, which affirmed the WCJ’s grant of the Modification Petition, and reversed the WCJ’s award of litigation costs. The Court found that the WCJ applied the proper burden of proof as to whether a job remains open and available. Specifically, the Court found that the employer can prove the same through circumstantial evidence, which was present in this case as the Claimant testified that he applied for an open position on the internet. With regard to litigation costs, the Court agreed with the WCAB’s finding that Claimant was not entitled to the same. The Court stated that the only contested issue in the case was the matter of availability of suitable work for Claimant. Claimant did not prevail on this issue and his benefits were modified. Accordingly, Claimant was not entitled to an award for litigation costs.
The first takeaway is that whether a job remains open and available for the claimant can be proven through circumstantial evidence. The final takeaway is that a claimant is not entitled to an award of litigation costs if “partially” successful in defending against a modification or suspension petition.
Questions about this case can be directed to Joseph J. Shields at (570) 825-7227 or firstname.lastname@example.org.