eNotes: Workers’ Compensation – August 2019
August 01, 2019
SIGNIFICANT PENNSYLVANIA CASE SUMMARIES
TTH’S JIM TINNYO SUCCESSFULLY ARGUES HIS CASE TO THE COMMONWEALTH COURT
Valerio v. WCAB (Georgio Fresh Company), No. 1418 C.D. 2018 (July 12, 2019)
Pennsylvania Commonwealth Court, Unpublished
By: Justin D. Beck, Esquire
In a claim successfully defended against by Thomas, Thomas & Hafer attorney James A. Tinnyo, the Commonwealth Court has reaffirmed the rule that a claimant may only recover litigation costs where ultimately prevailing on a contested issue.
Background: In Valerio, Claimant began working for Employer on a production line in 2011, lifting baskets of mushrooms for weighing and returning them to the line for packaging. Claimant alleged that, sometime in 2014, she dropped a basket, and fell in the process of trying to recover the same, injuring her hands, knees, and back. Although seeking immediate medical treatment, she thereafter continued to work for approximately two years, until the pain in her arms and back allegedly became disabling. Indeed, in mid-2016, Claimant filed a claim petition, alleging bilateral carpal tunnel syndrome and a low back injury as a result of the 2014 event.
Approximately one month following the filing of the claim petition, Employer issued a Medical-only Notice of Compensation Payable (“MONCP”), which accepted the compensability of Claimant’s bilateral carpal tunnel syndrome for medical benefits only. In early 2017, Employer filed a termination petition, alleging that Claimant had fully recovered from the carpal tunnel syndrome and any other work injuries she may have sustained as a result of the 2014 incident.
Following hearings and the presentation of competing lay and medical proofs, the WCJ found that Claimant had in fact suffered from work-related bilateral carpal tunnel syndrome as a result of the 2014 event. However, the WCJ simultaneously found that Claimant had fully recovered from the same as of late 2016. The WCJ further determined that such injury had not resulted in any loss of earning power, as Claimant had continued to work from the time of the 2014 injury through early 2016, when she stopped working as a result of back pain. The WCJ concluded that this back pain was unrelated to the work injury, and that Claimant was therefore not entitled to an award of litigation costs. Both the Board and Commonwealth Court affirmed.
Legal Analysis: The Commonwealth Court dismissed Claimant’s attempt to assail the credibility determinations of the WCJ, holding instead that the same were supported by substantial, competent evidence. The Court further affirmed the WCJ’s refusal to award litigation costs, noting that Section 440 of the Act permits an award of costs only where a claimant prevails on a contested issue.
Here, the claimant had requested payment of $3,176.25 for the deposition of a doctor and $626.25 for the report and deposition of a chiropractor. The Court endorsed the reasoning of the Board, which had held that the costs were nonrecoverable in consideration that they had only been incurred after the date upon which the employer accepted responsibility for the claimant’s medical treatment of her bilateral carpal tunnel syndrome. Stated differently, once the employer had issued the MONCP, the claimant’s entitlement to medical benefits for work-related carpal tunnel was no longer at issue. As the WCJ found that no disability resulted from the carpal tunnel injury, and that the alleged back injury was unrelated to her work, the claimant had not actually prevailed on any issue decided by the WCJ.
Takeaway: In order to establish an entitlement to litigation costs, a claimant must prevail on a contested issue before the WCJ. Where an employer acknowledges liability, in part, during the course of litigation, that same liability cannot later be conceptualized as “contested” in a final adjudication. For this reason, costs incurred in relation to and following an admitted liability are nonrecoverable.
Peters v. WCAB (Cintas Corporation), No. 1835 C.D. 2017 (July 18, 2019)
Pennsylvania Commonwealth Court, Published
By: Justin D. Beck, Esquire
In a precedential decision, the Commonwealth Court has held that a traveling employee is not considered to be in the course of employment where proceeding beyond his or her typical homeward route to attend a voluntary social event with colleagues.
Background: In Peters, Claimant was a uniform sales representative whose duties included calling potential prospects, scheduling appointments, meeting with contacts to present products, and negotiating contracts. Although his workweek included limited time in the office three days per week, Claimant otherwise traveled regularly, and was thus a traveling employee.
On the date of injury in February 2015, Claimant had been conducting appointments in the northern portion of his sales territory. At the conclusion of his final appointment, Claimant drove to Allentown to attend a celebration with his coworkers at a restaurant. En route to that event, Claimant passed the exit for his home and continued on to the location of the restaurant. Following the night’s festivities, and while driving home, Claimant was involved in a motor vehicle accident and sustained multiple injuries.
Claimant subsequently filed a Claim Petition seeking payment of compensation benefits. Following hearings, the WCJ denied and dismissed the petition, concluding that Claimant was not in the course of employment at the time of the accident. The WCAB and Commonwealth Court affirmed.
Legal Analysis: The Commonwealth Court, reviewing a litany of traveling-employee precedents, held that such claimants have traditionally been granted benefits where suffering injury during “the homeward trip,” as such travel was a necessary component of the business excursion. This rule was said to recognize that traveling employees are subjected to hazards that stationary employees would otherwise have the option of avoiding, and, as a result, the hazards of travel become the hazards of the employment.
In contrast to the above, the court held that, here, Claimant’s “homeward trip” had ended before he traveled to the restaurant. In this regard, Claimant had the option of avoiding roadway hazards “simply by choosing to take the exit home as opposed to bypassing his exit to attend happy hour.” Under these circumstances, the Court was unwilling to find compensability.
Takeaway: In an opinion which offers an unexpectedly illiberal reading of the Act and its decisional law related to course of employment analyses, the Commonwealth Court has narrowed the bounds of a traveling employee’s protections under the statute where traveling to after-work social events sponsored by his or her employer. While this ruling may temporarily serve to bolster defenses in analogous claims, carriers and self-insureds alike are cautioned as to the questionable resiliency of the majority’s opinion, particularly in consideration of the vast body of existing case law now in apparent conflict with such an interpretation.
To this end, it is to be noted that Judge Cohn Jubelirer penned a vociferous dissent, suggesting that Claimant’s actions could not be considered so foreign to and removed from his work duties that they constituted an abandonment of employment. In the dissent’s view, the voluntary nature of the social event was of no moment, as it had, in any event, been employer-sponsored. In a terse and pithy conclusion, Judge Cohn Jubelirer admonished that the disparate treatment of stationary and traveling employees is neither harmonized nor remedied by basing a claimant’s eligibility for benefits “upon the location of his home, and whether he passed his exit on the highway on his way to attend a social event organized and sponsored by [his] [e]mployer.”
Questions regarding this case can be directed to Justin D. Beck, Esquire, at (412) 926-1441 or JBeck@tthlaw.com.
Modesto v. WCAB (Barta), No. 1274 C.D. 2018 (July 11, 2019)
Pennsylvania Commonwealth Court, Unpublished
By: Lee Ann Rhodes, Esquire
Unlike corrective amendments that can be made by a Judge in the course of any pending workers’ compensation proceeding, an amendment based on a consequential condition may only be made upon consideration of a specific Review Petition.
Background: Claimant sustained a work injury on December 30, 2004, which Employer accepted via a Notice of Compensation Payable as a back strain injury. Claimant subsequently underwent surgery that included a laminectomy, discectomy and fusion. Claimant later filed a Petition to Review, to amend the description of the work injury to include cervical strain and sprain, lumbar sprain and strain, and aggravation of lumbar stenosis at L4-5, which was granted by the Judge. This description resulted in Claimant’s surgery being related to the work injury. The parties later entered into a Compromise and Release Agreement, releasing Employer for any liability for future indemnity and specific loss benefits. Under the terms of settlement, Employer remained liable for all future reasonable and necessary medical expenses related to the December 30, 2004 work injury. On March 16, 2016, Employer filed a Termination Petition alleging that Claimant had fully recovered from the work injury as of December 21, 2015. Claimant underwent additional surgery to his back on September 28, 2016. The Judge issued a decision on August 18, 2017, denying Employer’s Termination Petition. The Judge also found that Claimant’s September, 2016 surgery was related to the December 30, 2004 work injury. Employer filed an appeal from the Judge’s decision. The Board vacated the Judge’s decision to the extent that it causally related the September, 2016 surgery to the work injury, claiming that the Judge had improperly implicitly expanded the description of Claimant’s work injury. The Board affirmed the Judge’s decision in all other aspects. Claimant filed an appeal, arguing that the Board erred by vacating the Judge’s determination that the September, 2016 surgery was related to the December 2004 work injury.
Holding: Claimant argued to the Commonwealth Court that the Appeal Board had improperly focused on whether the Judge implicitly amended the description of the work injury in lieu of determining the matter based solely on Employer’s burden to adequately prove the claims of its Termination Petition. Claimant maintained that Employer had a full and fair opportunity to present evidence that Claimant’s September, 2016 surgery was not causally related to his December, 2004 work injury and that it failed to do so. In an unreported decision, the Commonwealth Court rejected Claimant’s arguments, finding that the Appeal Board was correct in finding that the Judge erred by expanding the description of the work injury in the absence of a Review Petition and medical evidence unequivocally linking the increase in pathology of the December, 2004 work injury to Claimant’s continued medical treatment, specifically his September, 2016 surgery. In making this determination, the Court noted that in workers’ compensation cases, amendments to the description of an accepted work injury come in two forms, each having different requirements under the Act. The Court, citing the Act and prior case law, noted that an amendment to correct an inaccuracy in the identification or description of an existing injury that is recorded in a Notice of Compensation Payable at the time the notice is issued is known as a “corrective amendment.” The Court found that such amendments may be made in the course of proceedings under any petition pending before a Judge. The second type of possible amendment involves changing an NCP to account for an increase in a claimant’s disability known as a “consequential condition.” Citing Section 413(a) of the Act, the Court found that, unlike corrective amendments that can be made by a Judge in the course of any pending workers’ compensation proceeding, an amendment based on a consequential condition may “be made only upon consideration of a specific Review Petition.”
The Court found that while the September, 2016 revision and expansion of the spinal fusion may have been related to Claimant’s work injury, the Judge erred in expanding the description of that work injury in the absence of a Review Petition and medical evidence unequivocally linking the increasing pathology of the December, 2004 incident to the Claimant’s continued medical treatment, specifically the September, 2016 surgery.
Take-away: While this is an unreported decision, this case should be noted for the fact that it appears that Claimant lost his appeal based solely on a “technicality.” The Court emphasized that, based upon the fact that Claimant was alleging a consequential injury, he should have filed a Review Petition to seek further expansion of the description of the work injury to include his most recent back surgery. Given the fact that Claimant was successful with respect to his initial petition to expand the description of the work injury to include not only cervical issues but also the aggravation of lumbar stenosis at L4-L5, it stands to reason that had Claimant taken the deposition testimony of his treating surgeon, the treating surgeon would have been able to express an unequivocal medical opinion that Claimant’s subsequent surgery was, in fact, related not only to the work injury but was the result of the prior surgery (which was previously found to be related to the work injury).
Questions regarding this case can be directed to Lee Ann Rhodes, Esquire, at (412) 926-1453 or LRhodes@tthlaw.com.
Shaffer v. Workers’ Comp. Appeal Bd. (Township of Indiana), No. 936 C.D. 2018 (June 9, 2019)
Pennsylvania Commonwealth Court, Unpublished
By: Stephanie A. Walczak, Esquire
A claimant who has voluntarily retired and is not seeking some type of employment must prove that the work injury forced him or her to withdraw from the workforce in order to receive temporary total disability benefits.
Background: Claimant was a police officer who injured his right shoulder in the course of his employment. Employer filed a Termination Petition alleging that Claimant was fully recovered and he had voluntarily withdrawn from the workforce. Claimant acknowledged that he did not look for work following his retirement. He admitted he did not intend to seek other employment elsewhere. Both doctors in the case testified that Claimant’s injury was not totally disabling, but rather, an injury that involved limitations.
Holding: The Commonwealth Court affirmed the finding below that Claimant had voluntarily removed himself from the workforce and granted a suspension of benefits as of the date of Claimant’s testimony. Where a claimant voluntarily retires, it is the claimant who bears the burden of showing either that his work-related injury has forced him out of the workforce or that he is looking for work after retirement.
Takeaway: When a claimant voluntarily leaves the labor market, rather than being forced into retirement because of a work injury, the claimant is not entitled to ongoing indemnity benefits and the employer had grounds to seek a suspension. A claimant who has voluntarily retired and is not seeking some type of employment must prove that the work injury forced him or her to withdraw from the entire workforce.
Questions about this case can be directed to Stephanie A. Walczak, Esquire, at (610) 332-7025 or SWalczak@tthlaw.com.
SIGNIFICANT NEW JERSEY CASE SUMMARIES
Marconi v. United Airlines, A-0110-18T4 (July 22, 2019)
New Jersey Appellate Division, Published
By: Deborah B. Richman, Esquire
Residence alone is not enough to confer New Jersey jurisdiction under the Workers’ Compensation Act in claims for extra-territorial jurisdiction.
Background: Petitioner, an airline mechanic for Respondent at the Philadelphia International Airport in Pennsylvania, brought a Claim Petition under the New Jersey Workers’ Compensation Act, alleging traumatic and occupational injuries as a result of repetitive duties, on the basis of his residency in the state of New Jersey. Alternatively, he argued that his residency combined with Respondent’s business being localized in New Jersey were adequate to confer New Jersey jurisdiction. The Judge of Workers’ Compensation dismissed both Claim Petitions for lack of jurisdiction.
Holding: The Court affirmed the dismissal for lack of jurisdiction, finding that residency alone was not sufficient to confer jurisdiction. The Court noted that Petitioner had relied upon dicta from a prior case, Bunk v. Port Authority of N.Y. & N.J., 144 N.J. 176, 180-181 (1996), in which the court had noted that residency alone could be enough to confer jurisdiction. However, the Court did not find the dicta from the prior case to be controlling. Petitioner argued in the alternative that because Respondent’s business was localized in New Jersey, the localized presence combined with his residency should be enough to confer jurisdiction. The Court disagreed, noting that United Airlines could hardly be considered a localized business. Further, although Respondent had a presence in New Jersey, Petitioner lacked an employment relationship to that presence. Nothing in the course of Petitioner’s employment advanced Respondent’s localized interests in New Jersey. Therefore, New Jersey had no substantial interest in exercising its jurisdiction over the petitions.
Takeaway: While neither residency alone, nor the in-state presence of a business alone is sufficient to confer jurisdiction, the Court has not ruled out the possibility that the two grounds together could be enough to confer jurisdiction. If Petitioner had duties which, to a substantial extent implemented the Newark airport, the jurisdiction issue could have been decided differently.
Questions about this case can be directed to Deborah B. Richman, Esquire, at (215) 564-2928 x 8502 or DRichman@tthlaw.com.
Lillian Collas v. Raritan River Garage, Inc., A-3103-17T4 (July 19, 2019)
New Jersey Appellate Division, Published
By: Caroline E. Gentilcore, Esquire
The Judge of Workers’ Compensation has discretion to award counsel fees based upon a dependent’s lifetime expectancy rather than relying on the 450-week period.
Background: This decision deals with the determination as to whether it is reasonable for a compensation judge to award attorney’s fees based on the life expectancy of the surviving spouse in a dependency case. Respondent filed the appeal at issue regarding the award of fees to counsel for an award of dependent benefits pursuant to N.J.S.A. 34:15-13, when the surviving spouse brought the claim. Respondent contended that the Judge of Workers’ Compensation erred by basing the calculation of attorney’s fees on the decedent’s expected lifetime as determined from the table of mortality and life expectancy, Appendix I to New Jersey Rules of Court (2019), for a total of a 450 week period of total permanent benefit payments. N.J.S.A. 34:15-12(b) provides that compensation for total permanent disability shall be paid to a qualified worker for 450 weeks and may be extended beyond if the worker, after complying with any ordered rehabilitation, can show the disability caused an impossibility to obtain earnings equal to those earned at the time of the accident. Surviving dependents of a deceased worker are also granted benefits under N.J.S.A. 34:15-13. N.J.S.A. 34:15-13(i) and (j) also mention the 450-week period: section (i) allows payments to “physically or mentally deficient” dependents “during the full compensation period of 450 weeks”; some dependents are limited, under section (j), to 450 weeks of payments.
In this case, Petitioner argued that the statute provides for an award of counsel fees based on her lifetime expectancy, rather than the decedent’s. Respondent argued that the calculation of fees based on Petitioner’s life expectancy was speculative, because a spouse’s right to benefits ends upon remarriage or the spouse’s death.
Holding: The Court affirmed, finding it reasonable for the Judge to use the life table to calculate counsel fees. The table is accurately designed to calculate the amount of benefits a person is owed during their lifetime. The court based its decision on the underlying policy that an award of an attorney’s fee will not be overturned on appeal unless manifestly excessive or inadequate.
Takeaway: Carriers should increase reserves in dependency cases to account for the possibility of a higher attorney’s fee based upon the survivor’s life expectancy rather than the long-standing basis of 450 weeks.
Questions about this case can be directed to Caroline E. Gentilcore, Esquire, at (215) 564-2928 x 8518 or CGentilcore@tthlaw.com.