eNotes: Workers’ Compensation – May 2024 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

Pennsylvania Case Summaries

Pennsylvania Liquor Control Board v. Amato Berardi (WCAB)
Commonwealth Court of Pennsylvania
No. 147 C.D. 2023

Decided February 8, 2024

The Court found a trip and fall in a public parking lot during a lunch break to be within the course and scope of employment for purposes of the Workers’ Compensation Act.

Background

The Claimant, a clerk in a state liquor store, alleged he sustained a work-related injury on June 29, 2019, while on his lunch break when he tripped and fell walking from his vehicle back to the store with his take-out meal. The parking lot was not owned, operated, or controlled by the Employer.

The Employer issued a Notice of Compensation Denial, and the Claimant filed a Claim Petition. The Workers’ Compensation Judge found that the Claimant’s injury occurred in the course and scope of his employment. Although the Claimant was on his lunch break, the Claimant was walking in an area that was “integral” to the Employer’s store when the fall occurred. The Employer appealed to the Workers’ Compensation Appeal Board which affirmed the Decision of the Workers’ Compensation Judge.

The Employer then appealed to the Commonwealth Court, alleging that the Claimant was not in the course of his employment when he tripped and fell because the Employer does not own, maintain, or control the parking lot. Employer further argued that the Claimant was not walking back to the store to resume his job duties, but rather to continue his lunch break and therefore, was not furthering the Employer’s business affairs.

Holding

The Commonwealth Court affirmed the opinion of the Workers’ Compensation Appeal Board, holding that the Claimant was within the course and scope of his employment at the time of the fall within the meaning of Section 301 of the Act. In so holding, the Court reasoned that an employer’s premises is not limited to the property the employer owns or controls. Rather, parking lots, public streets, and common areas may be considered part of an employer’s premises if they are “integral” to the employer’s workplace or constitute a reasonable means of ingress to or egress from the workplace. Because the parking lot serves the shopping center where the Employer is located and provides the only entrance to the store, the Court concluded that the parking lot was integral to the Employer’s premises. The Court cited several cases wherein it was found that the Claimant was within the course and scope of employment when injured while leaving and/or returning from a lunch break to support the holding that the Claimant’s presence was required by the nature of his employment.

Takeaway

Course and scope of employment cases are highly fact-specific considering varying and conflicting decisions issued by the Commonwealth Court. If there is any question that a claimant may have been outside of the course and scope of employment at the time of the alleged injury, extensive investigation must be conducted before deciding on the compensability of the claim.

Questions about this case can be directed to A. Catherine McLaughlin at (412) 926-1421 or cmclaughlin@tthlaw.com.

Iskra v. Aussie Pet Mobile Bux-Mont (WCAB)
Commonwealth Court of Pennsylvania
No. 503 CD 2021

Decided April 25, 2024

The Commonwealth Court reinforces that Protz is not retroactive and reverses denial of Review Petition for payment of medical marijuana.

Background

Pursuant to a November 1, 2012, IRE, the Claimant was receiving partial disability benefits. Protz was decided on June 20, 2017. Thus, on October 19, 2014, the Claimant filed a Reinstatement Petition. She also filed a Review Petition seeking payment of medical expenses. The WCJ granted the Reinstatement Petition as of the date Protz was decided, but only partially granted the Review Petition. Specifically, the Decision required Defendant to pay for Claimant’s reasonable and necessary medical treatment but did not require payment or reimbursement for medical marijuana. The Claimant appealed and the WCAB affirmed.

Holding

Regarding the Reinstatement Petition, the Commonwealth Court cited to Whitfield v. WCAB (Tenant Health System Hahnemann LLC) in rejecting Claimant’s argument that Protz should be applied retroactively to reinstate her benefits as of the date of the now-void IRE. Rather, the Commonwealth Court held that the benefits should have been reinstated as of the date Claimant filed the Reinstatement Petition.

Regarding the Review Petition, the Commonwealth Court cited to Appel and Fegley and held that the Defendant was required to “reimburse” Claimant for her reasonable and necessary medical marijuana treatment. While the federal Controlled Substance Act and the Medical Marijuana Act prohibit employers and carriers from “covering” medical marijuana, given that it is a Schedule I prohibited substance federally, employers/carriers are nonetheless still required to “reimburse” claimants for medical marijuana found to be reasonable and necessary and causally related to their work injuries.

Takeaway

Where claimant’s benefits are reinstated from partial to total disability status based upon Protz, reinstatement is appropriate not as of the date of the voided IRE, but rather as of the date the claimant files a reinstatement petition. Secondly, where medical marijuana is found to be reasonable and necessary and causally related to a work injury, defendants are required to reimburse claimants for their purchasing of the medical marijuana. The Commonwealth Court construes “reimbursement” to be different from “coverage,” which remains illegal federally.

Questions about this case can be directed to Cailey Farinaro at (610) 332-6008 or cfarinaro@tthlaw.com.

Medical Revenue Associates v. Kanefsky (WCAB)
Commonwealth Court of Pennsylvania
No. 1186 C.D. 2022

Decided April 3, 2024

The Commonwealth Court analyzes the extent to which an employer can invoke its subrogation rights through “self help.”

Background

The Claimant sustained a work-related injury on January 19, 2015, to her upper right leg, both knees, right foot and right ankle. The Claimant subsequently settled a third-party lawsuit related to the work injury for $650,000 on or around August 3, 2018. The Court noted that, subject to expenses, the balance of recovery for this settlement was $370,988.66. Prior to the execution of the Third-Party Settlement Agreement, the Claimant filed a Claim Petition seeking benefits. In a Decision issued on January 19, 2015, the WCJ found that the Claimant was entitled to TTD benefits from and after January 19, 2015. Neither party appealed this decision.

The Employer did not pay benefits pursuant to the WCJ’s order, so the Claimant filed a Penalty Petition. The Employer filed Suspension, Modification, and Review Petitions, requesting subrogation and a credit for the third-party recovery as of January 16, 2019. The WCJ issued an Interlocutory Order, ordering the Employer to comply with the prior Order. When the Employer failed to do so, the Claimant filed an additional Penalty Petition. The Judge ultimately issued a Decision, granting Claimant’s Penalty Petitions and denying the Employer’s Review Petition.

The Employer appealed the Judge’s decision to the WCAB. The Board reversed the denial of the Employer’s Review Petition, vacated the granting of the Penalty Petitions, and remanded the matter to the Judge to determine the amount of subrogation owed to the Employer. On remand, the Judge granted both the Review and Penalty Petitions. The Judge ordered that the Employer was responsible for 42.9% of any future weekly benefits beginning on January 17, 2019, until the subrogation interest was exhausted. The Judge made a specific finding that the Employer’s lien was not effective until the January 17, 2019, date, because the evidence of record showed that the Employer was aware of the third-party litigation but did not assert its right to subrogation during the initial litigation. The Judge made a specific finding that, in its Review Petition, the Employer specifically requested subrogation and credit for third party recovery as of January 16, 2019, and not January 19, 2015.

The Penalty Petitions were granted on the basis that the Employer failed to comply with the Judge’s initial order and that the Employer engaged in “self help” by continuing to pay claimant at a reduced rate through September 2020, which was described as an “excessive delay.”

Holding

On appeal to the Commonwealth Court, the Employer raised several arguments, maintaining that the WCJ should have determined the amount the Employer was owed for its subrogation interests from the Claimant’s past indemnity benefits. The Employer also argued that the granting of the Penalty Petitions should be reversed and vacated.

The Court focused on the arguments regarding the Employer’s subrogation interests. It was noted that, in the order issued by the Board from the Judge’s first Decision, past due benefits were predicated on figures that did not consider the Employer’s subrogation interests, because neither the Employer nor the Claimant brought those interests to the Judge’s attention. The Court observed that no party appealed this Decision. The Court found no error in the determination that the Employer’s subrogation credit should be applied beginning on January 17, 2019, because the Employer did nothing to demonstrate its entitlement to subrogation until the Review Petition was filed. Additionally, in that Petition, the Employer specifically requested that the Judge order application of its subrogation credit as of January 16, 2019. The Court concluded that the “Employer got what it asked for.” The Court reasoned that the Employer was now asking that the burden of asserting its subrogation right be circumvented, which the Court declined to do.

The Court also noted that, based upon the WCJ’s initial decision in this case, the Claimant had been awarded TTD benefits on January 19, 2015, with the Employer receiving a credit for unemployment compensation benefits received by the Claimant. Again, neither party filed any appeal from this Decision. The Court reasoned that these findings were now final and to now credit the Employer’s subrogation lien towards these past due benefits would effectively “attack” the Judge’s final order. The Court found that the Board had been correct when it pointed out that, even though both parties knew of the Claimant’s third-party settlement, neither party raised this issue before the Judge during the initial litigation and neither party appealed that initial Decision.

With respect to the Penalty Petitions, the Court rejected the Employer’s arguments on the basis that the evidence of record showed that the Employer failed to make any payments to Claimant for a period of 4 years in violation of “multiple” Orders. The Court further found that the Act does not permit an employer to engage in “self help” by unilaterally withholding payments in accord to what it believes to be proper calculations of benefits owed.

Takeaway

Currently, this Decision is not a reported opinion of the Court. However, this Decision serves as a “good lesson” in terms of the importance of an employer timely asserting its subrogation rights. In a footnote, the Court noted that this case’s outcome did not corrode the right to subrogation, but rather ensured that the Employer would receive the benefit of its subrogation lien while also respecting the finality of the Judge’s initial Decision in this case. The Court placed great weight on the fact that neither party raised the issue of the third-party litigation—or the Employer’s subrogation rights—during the initial litigation before the Judge, nor did either party appeal the issue. It should also be noted that, according to the Court’s Decision, the dates used by the Employer in its Review Petition were consistent with the determination that was ultimately made by the WCJ, with respect to the subrogation lien. As the Court observed, “employer got what it asked for.” Had the Employer been more careful with its pleadings, perhaps this case would have had a different outcome.

Questions about this case can be directed to Lee Ann Rhodes at (412) 926-1453 or lrhodes@tthlaw.com.