eNotes: Workers’ Compensation – April 2022 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

John Bark v. Sooner Steel, LLC (WCAB)
Commonwealth Court of Pennsylvania
No. 540 C.D. 2021

Decided: March 21, 2022

Claimant riding home in a company truck was in the course and scope of employment based on an oral employment contract which included transportation.

Background

Claimant was a laborer for a steel company installing rebar for in-ground swimming pools. The son of the employer’s owner picked up Claimant from his house in Warminster, PA and drove him in a company vehicle to a jobsite in Wildwood, NJ. After working for several hours, the two drove the Employer-owned truck back to Pennsylvania to return Claimant to his home. While en route on the Atlantic City Expressway, Claimant and the owner’s son sustained serious injuries in a motor vehicle accident. The Employer denied the claim on the grounds that Claimant was not in the course and scope of employment. Claimant filed a Claim Petition, which the WCJ denied, finding that Claimant’s employment contract did not include transportation, and Claimant’s injury occurred while commuting with no applicable exception to the coming-and-going rule. The Board affirmed, and Claimant appealed to the Commonwealth Court.

Holding

In a published opinion, the Commonwealth Court reversed. The Court noted the WCJ’s finding that employees were paid extra when they traveled to any jobsite located outside of “zone 1” and concluded that Claimant must have been paid extra to travel to the Wildwood jobsite given that it was in “zone 4 or zone 5.” Moreover, Employer “provided or controlled the means of [Claimant’s] commute” by sending the owner’s son in a company truck to transport Claimant to and from the jobsite. Because the Act required a liberal interpretation of “course of employment” to effectuate the humanitarian purposes of the Act, the Court concluded that Claimant was injured in the course and scope of employment, and remanded the matter to the WCJ to award benefits.

Takeaway

Here, the Commonwealth Court reversed the WCJ’s denial of benefits based on the WCJ’s factual and credibility findings, overturning the fact finder’s original conclusion that the employment contract did not include additional compensation for commuting. This case shows just how far the Rule of Liberal Construction and humanitarian purposes of the Act can be applied to reach a favorable outcome for a claimant.

Questions about this case can be directed to John T. Morgan, Esquire, at (267) 861-7580 x 8502 or jmorgan@tthlaw.com.

Farrier v. Lee’s Painting and Roof Coating (WCAB)
Commonwealth Court of PA
No. 74 C.D. 2021

Decided: December 3, 2021

When the record established a change in claimant’s physical condition from the time when employer’s first termination petition had been denied, granting the second termination petition was proper.

Background

Claimant sustained a work injury after falling from a roof. Claimant’s work injuries included a laceration to the head requiring stitches, a rupture of the tendon in the right knee, an injury to a previously-reconstructed right ACL, and a fractured left ankle. The WCJ awarded ongoing TTD benefits, which would be paid by the UEGF as the employer did not have workers’ compensation insurance. The UEGF filed the first termination petition on April 17, 2017, alleging that claimant had fully recovered from the work injury based upon an IME by Dr. Schmidt. The WCJ found Dr. Schmidt’s opinions to be credible, with the exception of the injury to the right knee; the WCJ found he had not recovered from the right knee injury, based on his credible testimony. The termination petition was denied and the UEGF did not file any appeal from the decision.

A second termination petition was filed, based upon an IME performed by Dr. Elia on August 22, 2018. In support of the termination petition, the UEGF offered the doctor’s testimony and surveillance that was conducted of the claimant. The Judge (who was not the same Judge who decided the first termination petition) granted the termination petition, finding that claimant had fully recovered from the work injury, and specifically from any right knee injury. Claimant filed an appeal from the Judge’s decision, and the Appeal Board affirmed the decision.

Holding

The Court affirmed, dismissing Claimant’s arguments that the second termination petition contradicted the determinations made in the initial decision, specifically regarding degenerative arthritis in the right kneecap that Claimant alleged had not resolved. The Court noted that at no point during the litigation of either petition did the description of the work injury include a diagnosis of degenerative arthritis. The Court reasoned that because the Judge in the initial proceeding never expanded the description of the work injury, the UEGF was not required to prove that the degenerative arthritis had fully resolved. The Court affirmed the Judge’s decision granting the termination petition, as the evidence of record supported the finding that claimant’s physical condition had changed from the time when the first termination petition had been denied. The Court made a specific note that the description of the work injury had never been expanded to include degenerative arthritis involving the claimant’s right knee.

Takeaway

The lesson from this case is to be aware of the accepted description of injury and make sure to provide your IME doctor with all of the key information for the claim. It can make all the difference in whether a termination petition is granted.

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

Essix Holdings, LLC v. Dengel (WCAB)
Commonwealth Court of Pennsylvania
No. 683 C.D. 2021

Decided: March 25, 2022

Pennsylvania Commonwealth Court holds that for an employer to successfully suspend benefits for failure to return LIBC 760, employer must issue the appropriate notification of suspension

Background

Claimant sustained a work-related injury while in the course and scope of his employment with Employer. Claimant filed a Claim Petition seeking total disability benefits and medical benefits. The Claim Petition was eventually resolved via Stipulation, which was approved by the WCJ. After the WCJ issued the order adopting the Stipulation, the carrier sent the Claimant a LIBC-760 form (Employee Verification of Employment, Self-Employment or Change in Physical Condition), to ascertain whether the Claimant had any wages, earnings, or other benefits before it issued payments pursuant to the Stipulation. The form was not timely returned. The Claimant filed a Penalty Petition alleging non-payment of wage loss benefits. The WCJ granted Claimant’s Penalty Petition finding that Claimant was not required to complete the LIBC-760 because he was “seeking benefits rather than already receiving benefits.”

The Employer appealed to the Workers’ Compensation Appeal Board and the Board affirmed the WCJ. The Board indicated that even if the Employer had the right to suspend payments until the LIBC-760 was returned, the Employer was required to send the requisite Notice of Suspension for Failure to Return Form LIBC-760 (LIBC-762) before suspending benefits. The Employer then appealed to the Commonwealth Court.

Holding

The Commonwealth Court affirmed. In so doing, the Court indicated that the Employer was indeed subject to penalties due to the fact the Employer refused to comply with an order to pay workers’ compensation benefits. The Court indicated that the Act does not permit an employer to withhold initial payment for 30 days before it commences ordered payments. Rather, it is not until the claimant fails to return the verification form after the 30th day that the employer has the right to suspend payments pursuant to Section 311.1(g), assuming the appropriate suspension notice is issued.

Takeaway

The “reporting” LIBC forms should be sent out upon initial receipt of the claim and you are permitted to send this form out every six (60 months). Here, had the carrier done that rather than waiting until it was ordered to pay benefits, this case would have likely had a different result. The Act allows the carrier to suspend benefits until the form is returned. But note, the claimant must be put on notice via form LIBC-762 that his or her benefits are being suspended due to failure to return the LIBC-760 form. Failure to complete the form also has the added serious consequence of subjecting the claimant to proceedings under the fraud provisions of the Act.

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