eNotes: Workers’ Compensation – October 2020

Gabriel v. WCAB (Proctor and Gamble Products Co.), 2020 WL 5491931 (Pa. Cmwlth., filed September 11, 2020)

Background:  The claimant sustained an injury in February 2016 when his arm was pierced by a piece of wire. While he provided timely notice, and the employer paid for his medical bills, it did not formally accept or deny the claim within 21 days via the issuance of any particular Bureau document. The claimant did not miss any time from work. In August 2017, the claimant filed a claim petition, alleging residual numbness in his arm. In the midst of litigation, the claimant produced a supportive medical opinion, and the employer, in response, issued a Medical-Only NCP. Notwithstanding the issuance of that document, the claimant, for his part, continued to demand the assessment of penalties and unreasonable contest fees. The WCJ denied that request, as did the WCAB. The Commonwealth Court reversed and remanded.

Legal Analysis:  The Court concluded that the employer’s actions were “inconsistent with [its] responsibilities under the Act.” It reviewed the public policy behind the 21-day rule, emphasizing that where, as here, a claimant must hire counsel to litigate a medical-only claim, counsel is typically only paid if attorneys’ fees are assessed. Here, had the Medical-Only NCP not been issued, the claimant would not have enjoyed the formality that his injury be of record. Moreover, had the claimant not timely filed his claim petition, his claim might have been barred despite the employer’s payment of certain medical bills.

Takeaway:  While close consultation with counsel is always recommended in individual matters, as a general rule, it is now clear that the Commonwealth Court interprets the Act to require that a claim be accepted or denied – in whole or in part – within 21 days. This is so even where a claim is of a medical-only variety.

Sealey v. WCAB (Elwyn Inc.), 2020 WL 5785347 (Pa. Cmwlth., filed September 29, 2020)

Background:  The claimant sustained a work-related low back strain in May 2017, for which the employer voluntarily paid benefits. In June 2017, the claimant returned to work in a sedentary-duty position for only two days, which involved shredding paper. In September 2017, following an Independent Medical Evaluation, the employer offered two modified-duty jobs, both of which the claimant declined. The employer subsequently filed a suspension petition.

In the course of the litigation which ensued, the employer’s risk manager testified that all three modified duty jobs remained open and available, should the claimant wish to perform the same. However, in a job-offer letter which was transmitted following such testimony, offers were referenced only for the two must recent modified-duty positions; the paper-shredding position was not included. The claimant failed to present to either of the two offered positions. The WCJ granted the employer’s suspension petition, and the WCAB affirmed. The Commonwealth Court reversed.

Legal Analysis:  The Commonwealth Court reprised the rule that a job offer can indeed be communicated orally, rather than in writing. Still, in the matter before it, the employer had never clearly offered the claimant the paper-shredding position, as the letter which followed such testimony failed to include the same. The court further dismissed the risk manager’s testimony which suggested that all modified-duty positions remained open and available as akin to “blanket statements” previously found to be insufficient in Crawford County Care Center v. WCAB (Daly), 649 A.2d 203 (Pa. Cmwlth. 1994).

Takeaway: The contents of a job offer letter must be carefully considered, as the Commonwealth Court has proven it will closely scrutinize the same. Where multiple job offers are to be extended in a single correspondence, great care should be taken in specifically delineating the individualized offers.

Nunez v. WCAB (FedEx Smart Post, Inc.), 2020 WL 5785343 (Pa. Cmwlth., filed September 29, 2020)

Background:  The claimant had sustained a work-related injury to the wrist, for which the employer paid benefits. The employer subsequently filed a termination petition, and the claimant cross-petitioned to expand the description of injury. The WCJ granted termination, and denied the requested expansion. The claimant thereafter filed an appeal to the WCAB in the context of the denied review petition, and requested supersedeas. The Board granted that request, however, the employer did not continue to make payments. As a result, the claimant filed a penalty petition, which the WCJ ultimately denied on the basis that the claimant had no standing to request supersedeas on appeal, and that the Board had no authority to grant the same.

The Board affirmed the WCJ’s grant of the termination petition. The claimant then appealed to the Board in the context of the penalty petition, and the WCAB affirmed the WCJ. The Board posited that, with implied equitable powers, it had the ability to grant the claimant’s supersedeas request. Notwithstanding that particular point, the Board allowed that the WCJ also retained the discretion to award no penalty. The claimant appealed to the Commonwealth Court, which affirmed on different grounds.

Legal Analysis:  Like the WCJ, the Court questioned whether a claimant can even request supersedeas on appeal. Ultimately, however, it pointed to the fact that the claimant had failed to appeal the actual termination of benefits, and thus, the issue was never properly preserved.  As the WCJ’s order was final, the Board had no jurisdiction to even entertain such an issue in the first place.

Takeaway:  Although rather rare, where a claimant requests supersedeas on appeal, it is important to consult with counsel regarding the appropriate response in light of Nunez. This concept, often called “reverse supersedeas,” is largely denounced by precedent, and this newest case affirms the Court’s skepticism of tribunals which attempt to utilize such a mechanism.