eNotes: Workers’ Compensation – May 2022 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Joanne DeSue v. Bank of America (WCAB)
Commonwealth Court of Pennsylvania
No. 151 C.D. 2021

Decided: April 21, 2022

An expert who disputed the existence of a work-related injury, which was deemed admitted and accepted by operation of law due to an untimely filed Answer, was incompetent to testify to full recovery.

Background

Claimant filed a Claim Petition alleging injuries to her neck, low back, and left knee, followed by repetitive trauma and aggravation of degenerative joint disease. Employer filed an untimely Answer, and presented expert medical testimony that Claimant did not sustain aggravation of preexisting degenerative joint disease, and that Claimant had fully recovered.

The WCJ held several hearings between October 2016 and February 2019. During a hearing in March, 2018, Claimant invoked Yellow Freight in response to the untimely Answer, which was the first time the issue had been raised. Claimant then filed a Review Petition seeking to add psychological injuries. The WCJ agreed that Yellow Freight applied, and granted the Claim Petition, finding that Claimant had sustained a work injury as alleged, but had fully recovered as of February 9, 2017 and did not sustain a psychological injury given her full recovery. Both Employer and Claimant appealed to the Board, which affirmed.

Holding

The Commonwealth Court affirmed in part, holding that Claimant had not waived the Yellow Freight argument because it was raised prior to the end of the litigation and Employer did not show any prejudice. More importantly, the Court reversed and vacated the WCJ’s Decision to the extent it denied the Review Petition and terminated benefits as of February 9, 2017. The Court held that a full recovery opinion is incompetent if it does not acknowledge an accepted or established work injury. Because Employer’s expert disputed that Claimant aggravated preexisting degenerative joint disease (which had been deemed an admitted work-injury due to the untimely-filed Answer), his full recovery opinion was incompetent, and Employer did not meet its burden to show full recovery. By extension, the conclusion that Claimant did not sustain a work-related psychological injury was also not supported by substantial competent evidence.

Takeaway

This case illustrates the potentially draconian outcomes that can result from the failure to file a timely Answer, as well as the importance of precisely presenting medical expert testimony.

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

Adams v. School District of Philadelphia (WCAB)
Commonwealth Court of PA
No. 1060 C.D. 2020

Decided: March 30, 2022

Applying Protz, the Commonwealth Court reinstated Claimant’s TTD benefits as of the date of the filing of the Reinstatement Petition.

Background

On May 13, 2003, Claimant sustained a work injury. His benefits were modified to partial status following a January 19, 2012, IRE. On May 17, 2018, Claimant filed for reinstatement of TTD benefits following the Supreme Court’s Decision in Protz II. Claimant requested reinstatement take effect on January 19, 2012, the date his benefits were modified pursuant to an unconstitutional IRE. The WCJ granted the Reinstatement Petition and reinstated Claimant’s benefits as of May 17, 2018, the date the Reinstatement Petition was filed, pursuant to the Whitfield decision. The WCJ further held that Claimant was not entitled to reinstatement as of January 19, 2012, the date of the IRE, because pursuant to the Dana Holding Corp. case, reinstatement to the date of the IRE was only proper when the original modification of a claimant’s status was being actively litigated when the Protz II holding was issued in June 2017. Claimant did not file the Reinstatement Petition until after Protz II and was therefore not entitled to reinstatement as of January 19, 2012. Claimant appealed to the WCAB, which affirmed. Claimant thereafter appealed to the Commonwealth Court.

Holding

The Commonwealth Court affirmed. The Court stated that the facts of this case were analogous to the White case which was previously decided by the Court. As in White, Claimant was not actively litigating the original modification of his disability status following the January 2012, IRE when Protz II was decided in June 2017. Accordingly, the Court held that Dana Holding Corp., did not apply, and Claimant was only entitled to reinstatement as of the date the Reinstatement Petition was filed, May 17, 2018, pursuant to Whitfield. The Court also dismissed Claimant’s argument that his was an “extraordinary case” as described in Dana Holding Corp., such that he was entitled to reinstatement as of the date of the IRE. The Court held that Claimant’s case was not “extraordinary” and found that these facts were indistinguishable from the Whitfield and White line of cases which proliferated after Protz II. In sum, the Commonwealth Court affirmed the Decision of the WCJ and Opinion of the WCAB.

Takeaway

The main takeaway from this case is that a claimant is entitled to reinstatement of benefits following an unconstitutional IRE as of the date the reinstatement petition is filed, unless the original modification of the claimant’s status was being actively litigated when the Protz II holding was issued in June 2017.

Questions about this case can be directed to Joseph J. Shields at (570) 825-7227 or jshields@thlaw.com.

Lynch v. Commonwealth of Pennsylvania (WCAB)
Commonwealth Court of Pennsylvania
No. 1202 C.D. 2021

Decided April 29, 2022

Published opinion from the Commonwealth Court holds that Act 534 benefits qualify as temporary total disability benefits for the purposes of triggering 104 weeks for Impairment Rating Evaluation purposes.

Background

The Claimant sustained two compensable injuries (2012 and 2014) while working for the Employer in a state mental hospital run by the now Department of Human Services. Because of the nature of the Claimant’s job, he received benefits pursuant to Act 534, which provides for receipt of an injured worker’s “salary until they are able to return to work for their employer at a salary equal to the salary earned at the time of the injury.”

The Employer filed a Modification Petition with regard to the 2014 injury based upon an Impairment Rating Evaluation (IRE) seeking to modify Claimant’s disability benefits from total to partial pursuant to Act 111. The WCJ granted the Modification Petition, holding that because the Insurer pays the Employer workers’ compensation benefits during the Claimant’s receipt of Act 534 benefits, the Claimant received workers’ compensation benefits plus additional amounts added to equal his 534 rate, for the purposes of calculating Claimant’s receipt of 104 weeks of benefits.

The Claimant filed an appeal to the Appeal Board, arguing that the WCJ erred in modifying his benefit status because he had not received 104 weeks of benefits at the time of the IRE because he was receiving his salary under Act 534. The Appeal Board affirmed the decision of the WCJ, holding that Act 534 benefits are intended to supplement, not replace, workers compensation benefits, and therefore count toward the 104 weeks of benefits for IRE purposes. The Claimant then appealed to the Commonwealth Court.

Holding

On appeal, the Claimant argued that his full salary benefits under Act 534 do not constitute workers’ compensation benefits necessary to trigger the IRE process. The Commonwealth Court affirmed the Appeal Board, finding that because the Claimant received workers’ compensation benefits and Act 534 benefits simultaneously, the IRE process was triggered because the Claimant received 104 weeks of benefits. The Court analogized Act 534 to Heart and Lung benefits in this regard. To conclude otherwise, the Court noted, would deprive the Employer of the ability to seek modification of benefits under Act 111 simply because the Claimant was entitled to additional benefits under a separate statutory provision.

Takeaway

First and foremost, it is always important to diary your 104 week deadline for purposes of obtaining an IRE. With this published case now on the books, the 104 weeks will be tolled even if the Claimant isn’t directly receiving temporary total disability benefits. Similar to the Heart and Lung Act, Act 534 does not absolve an employer from its continuing obligation to pay workers’ compensation benefits. Therefore, the receipt of Act 534 benefits constitutes receipt of temporary total disability benefits for purposes of triggering Act 111’s IRE mechanism.

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