eNotes: Workers’ Compensation – March 2022 – Pennsylvania
March 21, 2022
SIGNIFICANT CASE SUMMARIES
PA CASE SUMMARIES
Geisinger Wyoming Valley Medical Center v. Colleen Drozda (WCAB)
Commonwealth Court of Pennsylvania
No. 427 C.D. 2021
Decided: February 28, 2022
Even in the absence of medical testimony, a claimant can establish the work-relatedness of a cervical herniation based on obviousness.
Claimant was assisting a patient when the patient pulled on the claimant’s left arm, causing immediate pain in the claimant’s neck and down her left arm, with numbness and tingling into her left arm, hand, and fingers. The employer initially accepted a left shoulder/neck strain, and then denied benefits citing lack of a work-related injury. The claimant filed a claim petition alleging that she sustained a cervical disc herniation with left upper extremity numbness. An MRI showed a disc herniation at C5-C6, though the medical records showed a long history of similar complaints along with degenerative changes in the cervical spine. Claimant’s expert witnesses did not clearly opine that the work injury caused the herniation. Nonetheless, the WCJ granted the Claim Petition and the Board affirmed, noting that medical testimony is not required to establish causation where such connection is “obvious” based on the onset of symptoms.
The Commonwealth Court affirmed. The court noted that the WCJ credited the claimant’s testimony regarding the onset of her symptoms and the denial of any similar prior symptoms or pre-injury diagnosis of a cervical herniation. The court further noted that the employer did not specifically assert that the claimant’s disc herniation existed prior to the date of injury, or that the claimant’s injury resulted from the aggravation of any preexisting condition.
This case shows the importance of clearly presenting the medical portion of a workers’ compensation claim and fully exploring the extent of any pre-existing conditions. This decision holds that even inherently non-obvious injuries, such as a disc herniation, have the potential to be presumed a work-related diagnosis based solely on the testimony of a claimant.
Questions about this case can be directed to John T. Morgan, Esquire, at (267) 861-7580 x 8502 or email@example.com.
Trasatti v. City of Chester (WCAB)
Commonwealth Court of Pennsylvania
No. 698 C.D. 2021
Decided February 1, 2022
Pennsylvania Commonwealth Court holds that the Heart & Lung Act does not preclude subrogation when issue is not preserved at every stage of the proceedings.
The Claimant sustained a work-related injury on November 23, 2011 while in the course and scope of his employment as a supply officer for the City of Chester Police Department. From May 2013 through January 2014, the Employer paid Claimant benefits under the Pennsylvania Heart and Lung Act. Thereafter, Employer discontinued Heart and Lung benefits, and paid Claimant workers’ compensation wage loss benefits. The Claimant was eventually awarded a third party settlement.
The Employer filed a Petition to Suspend Claimant’s workers’ compensation benefits and requested Claimant reimburse Employer for past benefits. The Employer also argued that it was entitled to subrogation of the third party recovery. Several hearings were held before the WCJ at which Claimant neither testified nor offered any evidence. The WCJ ultimately granted Employer’s Petition to Suspend and found that Employer met its burden of proof and that it was entitled to subrogation of the settlement earnings.
The Claimant appealed to the WCAB and maintained, for the first time, that his disability payments were improperly classified as workers’ compensation payments, but rather were payments pursuant to the Heart and Lung Act, and therefore, exempt from subrogation. The WCAB affirmed the WCJ’s decision and declined to consider the issue raised by Claimant, as it was untimely.
On appeal, Claimant’s allegations mirrored those before the WCAB. The Commonwealth Court affirmed the decision of the WCAB, and specifically held that Claimant had waived his right to assert that his Heart and Lung benefits were not subject to subrogation because he failed to preserve the issue before the WCJ. The Court relied heavily on the fact that Claimant presented no evidence before the WCJ that would contradict the evidence submitted by Employer, which clearly established that a third party settlement with Claimant existed.
This case could have had a very different result had the Claimant actually presented evidence in opposition to the Employer’s Petition. It is well-settled that an employer’s right to subrogation under Section 319 of the Workers’ Compensation Act is generally absolute, with few exceptions, Heart and Lung benefits being one. This case is a good lesson in illustrating how important it is that all appealable issues be raised and preserved before the WCJ.
Questions about this case can be directed to A. Catherine McLaughlin, at (412) 926-1421 or firstname.lastname@example.org.
Stoshick v. WCAB (Air Products & Chemicals, Inc. and Indemnity Insurance Company of North America)
Commonwealth Court of Pennsylvania
No. 27 C.D. 2021
Decided: February 3, 2022
The Commonwealth Court reinstated Claimant’s TTD benefits as of the date of the filing of the Reinstatement Petition following Protz, and modified Claimant’s benefits to partial status as of the date of an IRE performed subsequent to the passage of Act 111.
On March 17, 2009, Claimant sustained a work injury. His benefits were modified to partial status following a July 26, 2011, IRE. On July 27, 2017, Claimant filed for reinstatement of TTD benefits following the Supreme Court’s Decision in Protz II. The WCJ granted the Reinstatement Petition, Employer appealed and the matter was remanded for the WCJ to decide in accordance with Whitfield. While the matter was on remand, the PA General Assembly passed Act 111 which replaced the IRE process that was found unconstitutional by the Supreme Court in Protz II. On February 25, 2019, Claimant underwent a new IRE pursuant to Act 111. Claimant’s new impairment rating was 13%. On May 11, 2020, the WCJ reinstated Claimant’s benefits as of July 27, 2017, the date the Reinstatement Petition was filed. He also modified Claimant’s benefits to partial status as of February 25, 2019, the date the new IRE was performed. Claimant appealed and the WCAB affirmed.
Claimant appealed to the Commonwealth Court, arguing that his benefits should have been reinstated as of July 26, 2011, when the constitutionally invalid IRE was performed. Claimant further argued that Act 111 violated the Remedies Clause of the PA Constitution. Claimant finally argued that Employer’s Modification Petition should have been denied because Act 111 did not contain sufficiently specific language to make the law retroactive.
The Commonwealth Court affirmed. In Whitfield, the Court held that benefits should be reinstated as of the date of the unconstitutional IRE only when the claimant challenged the validity of the IRE prior to the Supreme Court’s decision in Protz II. As, Claimant did not challenge the IRE until after Protz II, it was proper to reinstate benefits as of the date of his Reinstatement Petition on July 27, 2017. The Court further found that Act 111 did not violate the Remedies Clause, which protects vested rights. The Court noted that a WCJ may at any time modify, reinstate, suspend or terminate WC benefits, and thus, there are no vested right in WC benefits. Finally, the Court found that Act 111 does have sufficiently specific language to make the law retroactive, as the General Assembly provided employers/insurers with credit for the weeks of compensation, whether total or partial in nature, previously paid. In sum, the Commonwealth Court affirmed the Decision of the WCJ and Opinion of the WCAB.
The main takeaway is that the Commonwealth Court continues to hold that Act 111 is constitutional and provides employers/insurers with credit for weeks of compensation paid prior to the passage of Act 111.
Questions about this case can be directed to Joseph J. Shields at (570) 825-7227 or email@example.com.
Castro v. Farmer’s Pride (WCAB)
Commonwealth Court of Pennsylvania
No. 804 C.D. 2001
Decided: February 9, 2022
Costs are only awarded for portions of a Claim Petition whereupon Claimant prevailed.
The Claimant sustained an injury on January 22, 2019. On February 7, 2019, a Medical Only Notice of Temporary Compensation Payable was issued which accepted liability for a strain or tear of the left shoulder. This document ultimately converted. On June 21, 2019, the Claimant filed a Claim Petition alleging, in addition to his left shoulder injury, he also sustained injuries to his neck and thoracic spine. On January 16, 2020, the employer filed a Termination Petition averring that as of December 11, 2019, the claimant made a full and complete recovery.
As part of his Bill of Costs, the Claimant submitted litigation costs totaling $3,216.10. Of this amount, $529.00 was the cost of the transcripts for three hearings. The remaining costs were for Claimant’s medical expert, Dr. Steven E. Diamond’s deposition fee of $2,000.00 and the costs of transcripts for the depositions of medical experts, Dr. Fayyazi ($175.00), Dr. Binco ($231.50), and Dr. Diamond ($280.40). The Workers’ Compensation Judge granted the Claim Petition for a closed period between March 28, 2019 and December 10, 2019. The Judge terminated benefits effective December 11, 2019. The Judge expanded the nature of the work injury based upon the opinions of employer’s expert, Dr. Fayyazi, who conceded that the Claimant did sustain an upper back strain, but had recovered from the same. The Judge only awarded Claimant counsel costs in the amount of $703.00, representing $529.00 for the three hearing transcripts and $175.00 for the deposition transcript of Dr. Fayyazi. The Judge denied any costs for the depositions and transcripts of Claimant experts Doctors Diamond and Banco, whose opinions he rejected. The Workers’ Compensation Appeal Board affirmed this decision.
On appeal, the Claimant argued that the Board erred in affirming the Workers’ Compensation Judge’s exclusion of a bulk of the Claimant’s litigation costs from employer’s reimbursement. Specifically, the Claimant contended that because he prevailed in expanding his work injury and his wage loss, he was entitled to the cost of his doctor’s deposition as well as the cost of Dr. Fayyazi’s and Dr. Banco’s deposition transcripts regardless of whether he prevailed on the termination issue.
The Commonwealth Court disagreed. The Court noted that in order for litigation costs to be considered reasonable and thus reimbursable under Section 440(a) of the Act, they must relate to the matter at issue on which the Claimant prevailed. In the instant case, the Court noted that the Claimant was only entitled to $704.00 in litigation costs, which was awarded by the Judge. The Court concluded that because “the remainder of Claimant’s litigation costs relate to the depositions of Drs. Diamond and Banco, whose medical opinions were either rejected or did not support Claimant’s allegations of continuing disability, the Claimant was not entitled to reimbursement of these costs. As such, the Board properly affirmed the Judge’s exclusion of the portion of the Claimant’s litigation costs from employer’s reimbursement.
Decisions of all Judges should be closely reviewed to make certain that the costs awarded by a Workers’ Compensation Judge correlate with the Judge’s award. To the extent that the Judge awards costs for a portion of the claim wherein the claimant did not prevail and those costs can be easily separated out from the other costs, those costs may not be properly awarded by a Judge.
Questions about this case can be directed to Sean B. Epstein, Esquire at 412-926-1451 or firstname.lastname@example.org.