eNotes: Workers’ Compensation – August 2023 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

Pennsylvania Case Summaries

Hollis v. C&R Laundry (WCAB)
Commonwealth Court of Pennsylvania
No. 1233 C.D. 2021

Decided: July 31, 2023

Although the Claimant won his Yellow Freight motion, he did not prevail in his allegation of a shoulder injury, as said allegation was not well-pled.

Background

Here, the Claimant filed a claim petition alleging he sustained disabling work injuries in the nature of “left rotator cuff pathology/cervical left side radiculopathy, [Cervical, Thoracic, Lumbar] sprain/strain.” Due to the Defendant’s failure to file a timely answer, the WCJ granted Claimant’s Yellow Freight motion. Thus, all well-pled factual allegations asserted therein became admitted as fact and the employer became barred from presenting any affirmative defenses or evidence to rebut the same. However, the employer was not precluded from offering evidence to rebut facts that the Claimant did not specifically allege in the claim petition. The employer was still entitled to prove events, such as changes in disability, that may have occurred after the last day when the late answer should have been filed.

Holding

Even though the Claimant was entitled to a rebuttable presumption of the continuation of his alleged ongoing disability, the WCJ concluded that the employer overcame the rebuttable presumption. The WCJ found Claimant’s medical experts more credible than Claimant’s medical expert. The WCJ found Claimant non-credible with respect to the continuation of ongoing symptoms after his IMEs with Employer’s medical experts. Although the body part of the injury, i.e. the left shoulder, was well-pled, the injury itself was not, as “left rotator cuff pathology” can be any number of conditions, such as tendinopathy, bursitis, tears, or sprains, which are different medical diagnoses. The WCJ found that the employer rebutted Claimant’s allegations of the left shoulder injury and established that the claimant had fully recovered from any work injuries sustained to his left shoulder.

Takeaway

Where a WCJ grants a Yellow Freight motion, an employer can still prevail in rebutting the accepted allegations where the alleged injuries are not well-pled.

Questions about this case can be directed to Cailey Farinaro, Esquire at (610) 332-7008, or cfarinaro@tthlaw.com.

City of Pittsburgh v. Borelli (WCAB)
Commonwealth Court of Pennsylvania
No. 1365 C.D. 2021

Decided July 20, 2023

The “bad faith” principles of Kachinski in Labor Market Surveys continue to be obsolete

Background

The Claimant sustained a work-related injury on June 28, 2016. She received workers’ compensation benefits for several years. Among other Petitions, Employer filed a Petition to Modify Compensation Benefits alleging that the Claimant’s benefits should be modified to partial based on an Earning Power Assessment. Employer specifically alleged that the Claimant failed to follow through on the job referrals in the Earning Power Assessment in “good faith.”

The Claimant applied for all five positions identified in the Earning Power Assessment, but she was not hired for any of them. The Claimant did acknowledge that she made several “stipulations” on the job applications and during the job interviews that may have negatively impacted the likelihood of being hired for the jobs. While she was open to finding another job, she only wanted something that would “suit [her] life.”

The WCJ granted the Employer’s Modification Petition, finding that she was vocationally and physically capable of performing one of the jobs identified in the Earning Power Assessment. The Employer appealed to the Workers’ Compensation Appeal Board on a separate issue, which was ultimately reversed. The WCJ’s granting of the Employer’s Petition to Modify was affirmed by the Board.

The Employer then appealed to the Commonwealth court, alleging that the Claimant failed to follow through in good faith on the five job openings and that the WCJ erred by failing to assess the Claimant’s earning power pursuant to the standard set forth in Kachinski v. WCAB (Vepco Construction Co.).

Holding

The Commonwealth Court affirmed the decision of the Workers’ Compensation Appeal Board. Prior to Act 57, the Kachinski case established that a claimant was required to show that he had “in good faith followed through on the job referrals” identified in the Earning Power Assessment. If no job actually resulted in spite of the claimant’s good-faith effort, then benefits would continue without modification. Act 57 ultimately did away with the Kachinski test and replaced it with what is now Section 306(b), which states that benefits may to modified from total to partial as long as the employer establishes that the disabled claimant has “earning power.” The Court held that because the Claimant’s injury took place 20 years after the passage of Act 57 and the enactment of Section 306(b)(2), the “lowered” Kachinski burden of proof was applicable and that the employer’s burden was merely to establish the availability of the jobs identified in the Labor Market Survey, not whether the claimant had actually pursued them in good faith.

Takeaway

This case solidifies that the good faith requirement of Kachinski is obsolete and that the current law pursuant to Section 306(b) confirms that the employer only needs to establish earning power and the availability of jobs, not whether the claimant pursued those job opportunities in good faith.

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

The Hershey Company v. Woodhouse (WCAB)
Commonwealth Court of Pennsylvania
No. 904 C.D. 2022

Decided April 6, 2022

A Claimant did not give adequate notice when he only mentioned an aggravation, and did not specify that the aggravation was work-related.

Background

On December 1, 2019, Claimant filed a Claim Petition seeking specific loss benefits for an injury date of November 6, 2017. Claimant alleged that as a result of his job duties, he suffered an aggravation of his preexisting diabetic foot ulcer which resulted in a below-the-knee amputation of his right leg. In opposition thereto, Employer asserted that notice of the alleged injury was not provided until the filing of the Claim Petition 23 months after the amputation. The Workers’ Compensation Judge (WCJ) granted the petition and awarded specific loss benefits for the loss of Claimant’s great toe and remaining toes of his right foot, but denied specific loss benefits for Claimant’s below-the-knee amputation. The WCJ explained that the Act’s notice requirement is to be liberally construed and concluded that Employer had constructive notice that Claimant was suffering a work injury to his right foot by November 2017.

Claimant and Employer appealed. The Workers’ Compensation Appeal Board (WCAB) reversed as to the denial of relief for Claimant’s below-the-knee amputation, and affirmed in all other respects. The WCAB agreed that the Employer had constructive notice of the relationship between Claimant’s foot condition and his employment duties dating back to November 2017, including Claimant’s restrictions and need for alternative footwear while working, as well as Employer’s access to Claimant’s medical records.

Holding

The Commonwealth Court reversed the granting of the Claim Petition and concluded that the substantial competent evidence of record did not support the conclusion that Claimant provided Employer with adequate notice of his work-related injury pursuant to Section 312 of the Act within 120 days as required by Section 311 of the Act. The court acknowledged that the notice required by Section 311 of the Act must “inform the employer that a certain employee received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.” 77 P.S. § 632. The court explained that knowledge of Claimant’s right foot ulcer and Claimant’s need for alternative footwear with restrictions while on his feet, as well as Employer’s access to Claimant’s medical records, were insufficient to satisfy these criteria. The court noted that Claimant: (1) knew that he suffered a work-related injury in November 2017; (2) knew that he was to immediately report suspected work-related injuries to his supervisor; and (3) sent an email to Employer within the required 120 days without stating, or in any manner indicating, that his injury was work related.

Claimant bears the burden of proving that he or she provided adequate notice of the injury to the employer. Actual notice must be provided within 21 days, or no compensation is due until notice is given. If the Claimant does not provide notice of the injury within 120 days of the alleged injury, then the claim is barred in its totality.

Takeaway

It is important to analyze each case to determine if adequate and timely notice has been provided by the Claimant in worker’s compensation matters. Failure to provide notice of a work injury can result in a complete bar of benefits.

Questions about this case can be directed to Regina Parker, Esquire at (267) 861-7594 or rparker@tthlaw.com.