eNotes: Workers’ Compensation – September 2022 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Gleason v. Alfred I. Dupont Hosp. for Children & Nemours Found.
Superior Court of Pennsylvania
No. 1757 EDA 2021

Decided: August 29, 2022

A workers’ compensation insurer cannot dispute the allocation of funds relative to a third party negligence and loss of consortium lawsuit when it did not offer evidence nor present timely objections and arguments.

Background

After the Pennsylvania Superior Court found an insurance carrier that paid workers’ compensation benefits was entitled to intervene in an employee’s third party negligence and loss of consortium action to protect its subrogation right, the Superior Court nonetheless affirmed the trial court’s final approval of the settlement allocation. The insurer appealed, characterizing the allocation of more than half of the damages from the lawsuit to the wife-plaintiff’s loss of consortium claim as “a ploy to shield recovery from [Insurer’s] workers’ compensation subrogation lien” without offering evidentiary support thereof.

Holding

The Pennsylvania Superior Court affirmed the trial court’s approval of the settlement allocation, thereby ruling against the insurer, as the record revealed that the insurer did not present evidence in support of its contention despite having received notice of the settlement petition, an opportunity to object, and a full and fair opportunity to submit evidence and present arguments. The insurer further failed to seek leave of the court to conduct discovery or to even engage in negotiations with plaintiffs and defendants regarding the settlement apportionment prior to the hearing. The insurer did not express its position regarding the settlement until after the court’s approval of the settlement. Thus, the insurer’s right to intervention was not denied when the trial court approved the third party settlement apportionment, despite more than half of the proceeds being allocated to the loss of consortium claim.

Takeaway

If a workers’ compensation carrier is permitted to intervene in a third-party lawsuit, the carrier must actively partake in the litigation and settlement negotiations of the suit in order to challenge allocation of settlement funds.

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

Trovato v. Citizens Financial Group (Workers’ Compensation Appeal Board)
No. 1263 C.D. 2021

Decided: August 29, 2022

When considering loss of sight, an expert must take into account both eyes when evaluating whether there is loss of sight in one eye

Background

On March 27, 2019, Claimant filed a Claim Petition alleging, that on September 13, 2017, Claimant sustained a work injury in the nature of a retinal detachment of his left eye. Claimant’s expert opined that Claimant lost the use of his left eye for central visual acuity. Claimant’s expert further opined that Claimant’s loss of the use of his left eye was permanent and was caused by the September 13, 2017, work incident. The WCJ ultimately granted the Claim Petition and credited Claimant’s medical expert. Specifically, the WCJ found that Claimant sustained a loss of use of his left eye for all practical intents and purposes, which was causally related to the work incident of September 13, 2017. Defendant appealed to the WCAB, who reversed. The WCAB found that Claimant’s evidence was insufficient to meet his legal burden, as Claimant’s expert did not offer any opinion regarding the impact of the left eye injury on the function of the uninjured right eye as is required in specific loss of sight cases where the eye is not destroyed. However, the WCAB found that Claimant did in fact sustain a work-related retinal detachment of the left eye and was entitled to ongoing medical benefits. Claimant appealed to the Commonwealth Court.

Holding

The Commonwealth Court affirmed. The Court stated that the test to determine whether compensation should be awarded where the eye was injured, but not destroyed, is whether the eye was lost for all intents and purposes. This is found where the injured eye does not contribute materially to the claimant’s vision in conjunction with the use of the uninjured eye, otherwise known as the “material contribution test”. The Commonwealth Court found that Claimant failed to provide evidence to satisfy the “material contribution test”, as Claimant’s expert offered no opinion as to whether the injured eye materially contributed to Claimant’s vision in conjunction with the uninjured eye. Therefore, the evidence submitted by Claimant fell short of meeting the legal standard required to entitle him to specific loss of sight benefits. Accordingly, the Commonwealth Court affirmed the Opinion of the WCAB, which overturned the WCJ.

Takeaway

The main takeaway from this case is that a claimant must provide evidence that his injured eye does not materially contribute to his vision in conjunction with his uninjured eye to be entitled to compensation for specific loss of sight benefits. It is not enough for an expert to opine that a claimant has lost the use of an eye on a permanent basis.

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

Hi-Tech Flooring, Inc. v. WCAB (Santucci)
Commonwealth Court of Pennsylvania
No. 12 C.D. 2020

Decided: August 9, 2022

The WCJ must consider the totality of the evidence when determining whether a claimant has voluntarily retired from the workforce.

Background

The employer field a Suspension Petition alleging that the claimant voluntarily left the workforce. In support of the petition, the employer submitted the claimant’s union pension paperwork, wherein the claimant attested that his last day of employment was August 18, 2014, and requested retirement benefits. The employer also submitted Claimant’s Social Security Disability (SSD) decision, which noted that Claimant was disabled from a laundry list of other conditions besides the accepted work injury. Claimant testified that he could perform various household chores and drive. Claimant further testified that he had not worked since the date of injury and was not looking for work. The WCJ granted the Suspension Petition, finding that Claimant had voluntarily retired based on his receipt of union pension and SSD and his failure to look for a job. On appeal, the Board reversed, noting that nothing in the record showed that the employer provided any job referrals or issued a Notice of Ability to Return to Work. Thus, the “totality of the circumstances” showed that Claimant’s injury forced him to collect pension and SSD. Employer appealed to the Commonwealth Court.

Holding

In a published opinion, the Commonwealth Court affirmed the Board. The court noted that accepting a pension only entitles the employer to a permissive inference of retirement, and that the totality of the circumstances must support the finding of retirement. Claimant’s SSD decision relied, in part, on Claimant’s work-related injury in concluding that the claimant was totally disabled. Moreover, the court noted that Claimant received his pension based on total disability from his trade – namely, tile work – rather than based solely on age. Therefore, the court agreed with the Board that the totality of the evidence did not support the conclusion that Claimant had voluntarily retired and left the workforce.

Takeaway

This case shows the importance of presenting evidence of a claimant’s work restrictions and issuing a Notice of Ability to Return to Work if an employer intends to prove that a claimant voluntarily retired.

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