eNotes: Workers’ Compensation – August 2024 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

Pennsylvania Case Summaries

Reading Anthracite Co. v. Oxenrider (WCAB)
Nos. 120 CD 2023, 121 CD 2023, 126 CD 2023, & 170 CD 2023
Commonwealth Court of Pennsylvania

Decided: June 11, 2024

The WCJ has the discretion to correct mistakes in a Bureau document but is not compelled to by the Act.

Background

The Decedent worked for a mining company which was a subsidiary of another company that owned various mining and refuse sites. The subsidiary initially accepted the injury and paid benefits to the widow. The parent company’s insurance carrier issued a denial of the claim. The widow subsequently initiated a third-party action against the parent company. The subsidiary filed a Review Petition asserting that the parent company was the Decedent’s true employer. The parent company attempted to “admit” liability as the employer, which may have given it immunity in the third-party action. However, the WCJ found that a contemporaneous investigation concluded that the subsidiary was the Decedent’s employer, and on that basis the decision was made to accept the claim. Therefore, the WCJ denied the Review Petition. The Board affirmed.

Holding

The Commonwealth Court affirmed in a published decision. The Court noted that Section 413(a) states that a WCJ “may” amend a Notice of Compensation Payable to correct a mistake. The use of the word “may” instead of “shall” shows that the WCJ’s decision should be reviewed for abuse of discretion. The Court held that the WCJ did not abuse his discretion by declining to find the parent company was the Decedent’s true employer.

Takeaway

This case affirms that the WCJ has the discretion to amend a controlling Bureau document to correct mistakes, but is not compelled to, even if in theory the facts could support an amendment. Employer could potentially use this principle to defend against situations where an opposing party waits to file a Review Petition to gain a strategic advantage in a litigation, such as an amendment to the description of injury during a termination proceeding or, as was the case here, a change in the identity of the employer after the statute of limitations ran in the third-party case. TT&H attorney Mark Powell successfully litigated this case before the WCJ, WCAB, and Commonwealth Court. TT&H attorney John Morgan prepared the brief to the Commonwealth Court, the reasoning of which was largely adopted in the published opinion.

Questions about this case can be directed to Mark J. Powell at (717) 255-7645 or mpowell@tthlaw.com or John T. Morgan at (267) 861-7580 or jmorgan@tthlaw.com.

Rossi v. Cleveland Brothers Equipment Co (WCAB)
No. 1381 C.D. 2022
Commonwealth Court of Pennsylvania

Decided: June 28, 2024

Employer bears the burden of proof when demonstrating an offer of employment within the Claimant’s usual employment area for purposes of reinstatement.

Background

The Claimant sustained an injury when he fell off a ladder and hyperextended his knee. The Claimant subsequently underwent two surgeries but returned to modified duty work with the time-of-injury Employer in January 2015. He worked in this capacity until June 2015 when he underwent surgery for an unrelated back condition. Once released to return to work with restrictions, the Employer informed the Claimant that his previous position at the New Stanton, PA location was unavailable. The Employer offered the Claimant, a “parts warehouse” position at its Cranberry, PA, location. The Claimant believed that the Cranberry position entailed heavier lifting, but ultimately declined the offer due to the mileage between the Claimant’s home and Cranberry – at least a 41-mile drive. The Claimant was subsequently terminated.

The Claimant filed a Reinstatement Petition, which the workers’ compensation judge (WCJ) denied. The WCJ found that while work was not available to the Claimant “at his time-of-injury facility,” the Claimant failed to establish that the proffered job in Cranberry, PA was “reasonably unavailable.” The WCJ found that the Claimant rejected the Cranberry position due to distance rather than his work-related injury. The Claimant appealed to the Workers’ Compensation Appeal Board (WCAB), which affirmed the WCJ, concluding that the Employer had met its burden in proving the loss of earning power was caused by something other than the work injury, and the Claimant had to prove his loss in earning power was due to the work injury. The Claimant then appealed to the Commonwealth Court.

Holding

The Commonwealth Court reversed the WCAB’s decision, concluding that both the WCJ and WCAB erred by prematurely shifting the burden of proof to the Claimant. The Court noted that because the Claimant was laid off after returning to modified duty, he was entitled to the presumption that the disability is causally related to the work injury. The burden then shifts to the Employer to rebut that presumption by proving it offered employment within the Claimant’s usual employment area. The Court specifically noted that the Board erred in affirming the WCJ because it was the Employer’s burden rather than the Claimant’s to demonstrate that others in the Claimant’s community would accept the offered employment.

Takeaway

This case is not a favorable one to employers, but it does confirm what employers must establish when offering suitable employment for purposes of suspending and/or modifying benefits. The employer must be able to show, through competent testimony, that employment was offered within the “usual employment area” and that it is a geographic area where others in the claimant’s community would accept employment. In determining job availability, several factors will be considered including, the claimant’s physical limitations, age, intellectual capacity, education, prior work experience, and place of residence.

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

Sicilia v. API Roofers Advantage Program
No. 14 MAP 2023
Supreme Court of Pennsylvania

Decided: July 17, 2024

The Pennsylvania Supreme Court evenly divides on the issue of whether to overturn Duffey, meaning Duffey, remains the law of the land.

Background

Section 306(a.2) of the Act requires IRE physicians to determine the degree of impairment due to the compensable injury. In Duffey v. WCAB (Trola-Dyne, Inc.), the Pennsylvania Supreme Court concluded that the legislature intended to give IRE physicians the authority to decide whether the claimant has any additional compensable injuries beyond those listed in the NCP and then to provide ratings for those additional injuries. The Sicilia appeal provided the Pennsylvania Supreme Court an opportunity to potentially overturn Duffey. Unfortunately, the court was evenly divided on the issue.

Holding

Justice Wecht advocated in support of reversal. Justice Wecht reasoned that Duffey should be overturned because it has caused significant confusion and uncertainty regarding the scope of an IRE. Physicians performing an IRE had been issuing dual ratings – one for the accepted diagnosis and one for additional injuries never found to be compensable. In Justice Wecht’s view, this took authority away from WCJs to define the scope of the compensable injury and erroneously empowered IRE physicians to make a de novo assessment of the “compensable injury” at every IRE. Justice Brobson also advocated in support of reversal.

Justice Donahue advocated in support of upholding Duffey. Justice Donahue argued that the list of diagnoses in the NCP cannot be read, for purposes of an evaluator’s responsibilities during an IRE, to fully circumscribe the range of impairments that an evaluator must consider, as there may be other impairments which are “due to” such injury. Justice Donahue distinguished between “injuries” and “impairments,” which was the reasoning used by the Duffey court.

Takeaway

For better or worse, Duffey remains controlling precedent. When assessing a claim for a potential IRE, consideration should be given to the possibility that an IRE physician renders two separate ratings and includes additional diagnoses which were not part of the compensable injury.

Questions about this case can be directed to John T. Morgan at (267) 861-7580 or jmorgan@tthlaw.com.

Client Advisory: New Bill Would Penalize Resignations as Part of C&R Agreements

HB2490 was introduced in the General Assembly in July 2024. It is currently under review by the House Committee on Labor and Industry. If passed, the bill would amend Section 449 of the Act to prohibit employers from requiring a claimant from signing a separate agreement resigning from employment, refraining from reapplying for work, promising to keep certain matters confidential, or accepting indemnification for a claim by Medicare. The bill would expose employers to penalties for including such agreements. The legislation would also void the agreements. The proposed changes undoubtedly would frustrate the process of resolving the vast majority of workers’ compensation claims through a Compromise and Release, as a resignation of employment is typically a standard part of the settlement. Employers should monitor this legislation, as its passage would have significant implications for closing workers’ compensation claims.

Questions about this matter can be directed to John T. Morgan at (267) 861-7580 or jmorgan@tthlaw.com.