eNotes: Workers’ Compensation – July 2022 – Pennsylvania
July 21, 2022
SIGNIFICANT CASE SUMMARIES
PA CASE SUMMARIES
Montano v. Advanced Stores Company, Inc. t/a Advance Auto Parts (WCAB)
Commonwealth Court of Pennsylvania
No. 732 C.D. 2021
Decided: June 27, 2022
Evidence that a partially disabled claimant was terminated for cause while working modified duty can preclude reinstatement of temporary total disability.
Claimant sustained a work-related injury on May 30, 2017. On June 13, 2017, Claimant returned to work in a modified duty capacity for Employer as a trainer. Employer accepted an upper back injury by Medical Only Notice of Compensation Payable. On August 13, 2018, Employer terminated Claimant based on his job performance. Later that day, Claimant filed a Reinstatement Petition seeking temporary total disability (TTD). Over the following year during the pendency of the Reinstatement Petition, Claimant underwent two work-related surgeries. An Employer fact witness testified that she had observed numerous instances where Claimant had incorrectly completed the training forms, and had both formally and informally counseled Claimant on his mistakes. The Workers’ Compensation Judge (WCJ) credited this testimony, and found that Claimant’s termination was not pretextual and not work-related. Thus, the WCJ did not reinstate TTD for the time between Claimant’s termination and his work-related surgeries. The Board affirmed, and Claimant appealed to the Commonwealth Court.
In a published opinion, the Commonwealth Court affirmed the Board. The court recognized that a partially disabled employee who, by act of bad faith, forfeits his or her employment is not eligible for TTD, as suitable employment was available but for the employee’s own wrongful conduct. The court held that Employer’s fact witness’s testimony, coupled with a Team Member Correction Report submitted without objection under the Business Records Exception to the Rule Against Hearsay, each sufficiently supported the WCJ’s finding that Claimant failed to act in good faith. The Court further held that the case law interpreting “willful misconduct” in the context of unemployment compensation disqualification does not apply to the analysis of whether a claimant acted in good faith in response to the modified duty offer. Thus, an employer’s purported failure to follow its progressive discipline policy does not preclude a WCJ from finding that the claimant acted in bad faith.
This case demonstrates what evidence and circumstances are needed to show that a workers’ compensation claimant was terminated from a modified duty position for cause, and therefore should not be entitled to TTD.
Questions about this case can be directed to John T. Morgan, Esq. at (267) 861-7580 x 8502 or firstname.lastname@example.org.
DiPaolo v. UPMC Magee Women’s Hospital (WCAB)
Commonwealth Court of Pennsylvania
No. 878 C.D. 2021
Decided June 13, 2022
Court affirms constitutionality of Act 111 with issue of first impression regarding Article III, section 18 of the Pennsylvania Constitution.
The Claimant sustained a work related injury on August 30, 2008. She underwent an Impairment Rating Evaluation (IRE) in 2011 and had her disability status changed to partial, before the seminal Protz decision was handed down. Following Protz, the Claimant requested reinstatement to total disability, which was granted in 2016. Thereafter, Act 111 was enacted which reinstated the IRE provisions of the Act. The Employer then requested the Claimant submit to another IRE, which was completed on December 3, 2019. Employer filed a Petition to Modify seeking to change the Claimant’s disability status from total to partial.
The workers’ compensation judge (WCJ) granted the Employer’s modification petition and changed the Claimant’s status from total to partial based on the December 2019 IRE. The Claimant raised and preserved constitutional challenges to Act 111, which the WCJ did not address due to lack of jurisdiction to rule on such issues. The Workers’ Compensation Appeal Board (WCAB) affirmed the WCJ, confirming it too had no jurisdiction to rule on the constitutional issues raised by the Claimant. The Claimant then appealed to the Commonwealth Court on the constitutionality issues.
The Commonwealth Court affirmed the opinion of the WCAB. In doing so, it addressed the two specific constitutional challenges raised by the Claimant, finding that Act 111 did not violate the Pennsylvania Constitution.
The first issue involved whether Act 111 violated the due process and due course of law provisions of the Pennsylvania Constitution (Article I, section 1 & 2) when applied retroactively to injuries that pre-dated Act 111. The Court found that Act 111 did not violate the due process and due course of law provisions of Pennsylvania Constitution because a claimant does not have a vested right in ongoing workers’ compensation benefits, consistent with a series of cases that were handed down after the enactment of Act 111. Specifically, the Court concluded that the Claimant failed to establish that she had a vested right in her post-Protz-pre-Act 111 total disability status.
The second issue addressed by the Court was an issue of first impression and it involved whether Act 111 violated the requirement of “reasonable compensation” (Article III, section 18) of the Pennsylvania Constitution. Claimant alleged that by restoring the IRE process through Act 111, it allowed employers to avoid the requirement to show that a claimant has regained some degree of earning power in order to be subject to modification to partial disability status and replaced it with an impairment rating not tied to earning power. Employer argued that Article III, Section 18 is not a limitation on the General Assembly, but rather a broad grant of authority to legislate workers’ compensation, which includes placing reasonable limits on how much and for how long a claimant may receive benefits. Although modification from total to partial status traditionally required an employer to show that a claimant regained earning power, it has never been declared to be the sole or only reasonable method of modification. Essentially, the Court held that IREs are not inherently unreasonable as a means for employers to modify claimant’s disability status of total to partial and therefore did not violate the “reasonable compensation” provisions of Article III, Section 18.
In a post-Protz world, Act 111 allows an employer to require a claimant to submit to an IRE. This opinion is very important in the sense that it affirms the constitutionality of Act 111 and continues to provide a basis to thwart the claimants’ bar in its attempts to establish otherwise. With cases involving Act 111 proliferating rapidly, the Court has remained consistent in its rulings on the constitutionality of Act 111. With this published opinion on the books, Act 111 remains intact with further permissible use of IREs.
TTH was involved in the companion case, Harold v. WCAB (Abate Irwin, Inc.), which decided identical constitutional issues as in DiPaolo.
Questions about this case can be directed to A. Catherine McLaughlin, Esquire at (412) 926-1421 or email@example.com.
Sicilia v. API Roofers Advantage Program
Commonwealth Court of Pennsylvania
No. 747 C.D. 2021
Decided: June 7, 2022
Commonwealth Court reversed Workers’ Compensation Appeal Board (Board), which affirmed the decision of a Workers’ Compensation Judge (WCJ) for “constraining the Impairment Rating Evaluation (IRE) review solely to the earlier accepted descriptions of Claimant’s work injuries.”
After twenty years of history for this claim, the specific issue at stake in this decision comes down to whether “prior injury descriptions in previous WCJ decisions [related to the same Claimant and work injury] dictate what may be considered in the IRE.”
More specifically, Employer sought to modify Claimant’s “indemnity benefits from total to partial” through the IRE performed by a physician-evaluator, Dr. Rodriguez. The initial IRE report only included “the diagnosis currently accepted via the NTCP [notice of temporary compensation payable], NCP [notice of compensation payable], mutual stipulation, and/or Court’s decision.” Thus, Dr. Rodriguez limited her review to the injuries “described in the prior decisions of the assigned WCJs.” However, Dr. Rodriguez qualified the evaluation based on the fact that “additional, non-accepted diagnoses are, in fact, attributable to the world-related injuries.”
Consequently, “Employer asked Dr. Rodriguez for an addendum to the report including the whole person impairment rating based upon the diagnoses listed in the clinical summary.” The addendum report produced a different IRE rating. As the Court stated, “[t]he difference between the ratings in the IRE Report and the Addendum is significant because the former is below the threshold impairment rating of 35% or greater, which establishes the presumption for continuing total disability, while the latter is above the threshold.”
The WCJ found the Addendum report was not “credible” and subsequently granted the conversion to partial disability benefits. The Board agreed with the WCJ “reasoning that the rendering of credibility determinations was within the domain of the WCJ.” It further concluded that “Dr. Rodriguez did [apply professional judgment] in her initial IRE Report.” Claimant appealed.
The Commonwealth Court reversed the Board, affirming Duffey v. Workers’ Comp. App. Bd. (Trola-Dyne, Inc.), 152 A.3d 984, 984 (Pa. 2017), which held that “a physician-evaluator must consider and determine causality in terms of whether any particular impairment is ‘due to’ the compensable injury.” Further, the Court clarified that the physician-evaluator, within their professional judgment, can “consider causality relative to a given condition.”
Evaluated through the lens of Duffey and its progeny, this case affirms and clarifies the directive enunciated in Duffey’s holding, for “physician-examiners must exercise independent professional judgment to make a whole-body assessment of ‘the degree of impairment due to the compensable injury,’ which discernment cannot be withheld on the basis that the physician-examiner believes the undertaking is a more limited one.” 152 A.3d at 996 (citing 77 P.S. § 511.2(1)).
The Court also explained that Section 422 of the Act affords physician-evaluators discretion to “determine what diagnoses are ‘due to’ a work-related injury, outside the ordinary modification [litigation] process.
Judge Leavitt filed a dissenting opinion that not only seeks to affirm the WCJ’s province to determine questions of fact, such as expert credibility, but also laments the current state of IRE case law, extolling Justice Wecht’s own dissent in Duffey II, which states, in relevant part, “[w]ith today’s decision, the majority by judicial fiat converts the statute’s impairment-rating process into one in which physicians must scrutinize each ‘condition’ hinted at by a claimant, and then determine which, if any, are ‘fairly attributable to the compensable injury.”
Questions about this case can be directed to Paul A. Pauciulo at 267-861-7588 or firstname.lastname@example.org.