TTH eNotes: Workers’ Compensation: February, 2019
January 31, 2019
SIGNIFICANT PENNSYLVANIA CASE SUMMARIES
Kurpiewski v. WCAB (Caretti, Inc.), No. 158 C.D. 2018 (January 18, 2019)
Pennsylvania Commonwealth Court
By: Lee Ann Rhodes, Esquire
The Commonwealth Court addressed a number of worker’s compensation issues in this case including when a termination of benefits is appropriate, what constitutes concurrent employment, and when penalties are appropriate.
Background:
Claimant worked as a union bricklayer. He worked for the employer at various job sites. In April 2012, Claimant developed a rash on various parts of his body while working for the employer. Claimant left work on April 16, 2016 and did not return upon the instruction of his doctor. Claimant was diagnosed with allergic contact dermatitis arising from long term work exposure to chromium, which is found in bricks, concrete and mortar. Claimant filed a Claim Petition alleging that he suffered a work injury on April 16, 2012. He also filed a Penalty Petition alleging that the employer violated the Workers’ Compensation Act by failing to timely accept or deny liability for the work injury.
The Workers’ Compensation Judge found Claimant’s testimony and the testimony of Claimant’s treating physician to be credible. The Judge noted that the employer’s IME report was not offered into evidence to prove that Claimant suffered a work injury, but rather by Claimant to support Claimant’s request for unreasonable contest attorney fees. The Judge found that the IME report unequivocally related Claimant’s conditions to his employment. The Judge concluded that Claimant met his burden of proof and established the causal connection between his work as a bricklayer and the aggravation of pre-existing dermatitis which resulted in his removal from employment as a bricklayer as of April 19, 2012. The Judge further held that Claimant’s work injury in the nature of allergic contact dermatitis rendered him incapable of returning to work as a bricklayer. The Judge noted that the employer failed to present any evidence that it had work available that would not require Claimant to be exposed to chromium. The Judge granted Claimant’s Claim Petition and directed the employer to pay Claimant workers’ compensation in the amount of $824.00 per week, based upon an average weekly wage of $1,236.00 from April 16, 2012 forward, with a credit for unemployment compensation benefits collected by Claimant. The average weekly wage calculation was based on evidence that had been presented by Claimant, which consisted of copies of Claimant’s tax returns which documented Claimant’s wages from the employer as well as other employers.
The Judge denied Claimant’s Penalty Petition upon review of the evidence of record.
Both the employer and Claimant appealed the Judge’s decision to the Appeal Board. The employer argued that Claimant did not give timely notice of his injury. On this issue, the Board remanded the case with instructions that the Judge make findings regarding when Claimant advised the employer that his rash was work-related. The employer also argued that Claimant was fully recovered from the work-related aggravation of the pre-existing dermatitis and therefore ongoing benefits should not have been awarded. The Board agreed, citing the PA Supreme Court decision in Bethlehem Steel Corporation v. WCAB (Baxter), 708 A.2d 801 (Pa. 1998). The Board reasoned that, based upon the testimony of Claimant’s treating physician that Claimant did not have any permanent or ongoing work injury and that Claimant had essentially recovered from the rash as of August 14, 2012, Claimant had returned to his pre-injury baseline condition and his entitlement to benefits ended as of that date.
The employer also argued on appeal that the Judge erred in finding that Claimant had concurrent employment. The employer argued that, because Claimant testified that he did not work for anyone else at the time of the work injury, his average weekly wage should have been calculated using his wages from the four completed 13 week periods immediately preceding the date of injury. The Board agreed and vacated the Judge’s calculations and remanded the case for a new calculation of Claimant’s average weekly wage.
On appeal, Claimant argued that the Judge erred in denying his Penalty Petition.
The Judge issued a remand decision, addressing the issues raised by the Appeal Board. With regard to notice, the Judge found that for the purposes of the Act, the employer received notice of Claimant’s injury on June 21, 2012, the date when Claimant filed the Claim Petition. With respect to the average weekly wage issue, the Judge reviewed only the evidence regarding Claimant’s wages from his last four completed 13 week periods of employment with the employer, without considering any alleged concurrent employment. Based only on the evidence related to Claimant’s work for the employer, the Judge concluded that Claimant had an average weekly wage of $728.38, which would produce a compensation rate of $485.58.
With respect to the Penalty Petition, the Judge reviewed the evidence of record and concluded that Claimant did not establish a violation of the Act and once again denied the Penalty Petition.
Claimant filed an appeal from the Judge’s remand decision. On appeal, Claimant argued that the Judge erred in terminating his benefits and by recalculating his average weekly wage. The Board reversed the Judge’s denial of the Penalty Petition and awarded Claimant a 10% penalty, but reaffirmed its prior determinations regarding the termination of Claimant’s benefits and calculation of Claimant’s average weekly wage.
Legal Analysis:
Both the employer and Claimant filed appeals to the PA Commonwealth Court. Claimant argued that his benefits should not have been terminated and that his average weekly wage was miscalculated. The employer argued on appeal that the Board’s sua sponte imposition of the 10% penalty improperly infringed upon the Judge’s discretion.
Termination of Claimant’s benefits:
The Court reviewed the case law concerning a Claimant’s burden of proof in a Claim Petition proceeding and when those benefits can be terminated. The Court ultimately concluded that Claimant’s situation was similar to those cases where, although the work-related injury became asymptomatic when Claimant was not working, ongoing benefits were awarded because the injury would reoccur upon Claimant’s return to work. The Court reasoned that, in the instant case, Claimant’s severe allergy to chromium was caused by his long term exposure to chromium working as a bricklayer. The Court concluded that Claimant’s current restrictions from working as a brick layer were the result of his continued exposure to chromium, which occurred while working for this employer. The Court noted that Claimant’s baseline condition had materially differed between when he started working for the employer and when, due to his ongoing exposure to chromium, his work-related condition became so severe that he could no longer be exposed to that material without endangering his health. The Court reasoned that it was Claimant’s exposure to chromium while working for this employer and the resulting aggravation of his work-related chromium sensitivity, which rendered him incapable of performing his work duties. Based on these factors, the Court awarded Claimant ongoing indemnity benefits.
Calculation of Claimant’s average weekly wage:
The Court first addressed Claimant’s argument that, because he was subject to layoffs and obtained work with other employers during the year prior to his injury, he did not work three consecutive periods of 13 calendar weeks for the employer. The Court held that the employer and Claimant had a continuing employment relationship between October 2009 and April 2012 and therefore the Judge’s calculation of Claimant’s average weekly wage was consistent with prior PA Supreme Court decisions. With respect to the issue of concurrent employment, the Court noted language from prior cases finding that in order for Claimant’s employment with a second employer to qualify as concurrent employment, that Claimant had to have been working for both employers “at the time of the work injury.” Claimant testified in the instant case that he worked only for the employer in April 2012. Based on this testimony, the Court found that Claimant could not be deemed as having concurrent employment at the time of his work injury.
Penalty Petition:
The Court reviewed Claimant’s initial argument that the employer’s failure to timely issue the appropriate Bureau documents accepting or denying the work injury was a violation of the Act and should result in an award of penalties. The Court reasoned that while the Board correctly held that the Judge erred in not finding violation of the Act, not every violation of the Act requires the imposition of a penalty. The Court held that whether a penalty is appropriate is at the discretion of the Judge. The Court therefore reasoned that the case had to be remanded to the Judge to take into consideration whether penalties would be appropriate.
Take-aways:
In this rather lengthy decision, the Court discussed in detail the prior case law regarding the three main contested issues. With respect to the issue of Claimant’s ongoing benefits, the Court took special note of the fact that, while Claimant had spent his entire career working as a bricklayer for many different companies, he was unable to continue this type of work after his time with this employer. It is likely that it did not help the employer’s position when their own IME doctor agreed that Claimant would “absolutely” never be able to work as a bricklayer ever again. Regarding the calculation of Claimant’s AWW, it is always important to be familiar with the Act and be aware that the Judge will always have to make sure that the calculations reflect Claimant’s “economic reality.” Finally, with respect to the penalty issue, it is always important to issue proper forms in a timely fashion.
Questions about this case can be directed to Lee Ann Rhodes, Esquire, at (412) 926-1453 or LRhodes@tthlaw.com
McDermott v. WCAB (Brand Industrial Services, Inc.), No. 518 C.D. 2018 (January 18, 2019)
Pennsylvania Commonwealth Court
By: Justin D. Beck, Esquire
Addressing extraterritorial injuries, the Commonwealth Court held that a claimant, injured in Delaware, failed to establish Pennsylvania jurisdiction based upon his noncontinuous employment history within the Commonwealth.
Background:
Claimant worked as a union carpenter for the employer, which maintained both temporary job sites located at oil refineries and construction projections, in addition to a permanent facility in Delaware.
In February 2016, while working for the Employer at its Delaware facility, Claimant injured his right shoulder. The injury was accepted under the applicable Delaware workers’ compensation law. Thereafter, in March 2016, Claimant filed a Claim Petition in Pennsylvania, alleging an entitlement to Pennsylvania workers’ compensation benefits, in addition to a Petition for Penalties for failure to accept or deny the claim within 21 days. The employer contended that Claimant was not employed in Pennsylvania at the time of injury and that jurisdiction lay in Delaware.
The WCJ found that from March 2015, through December 2015, Claimant had worked for the employer in Pennsylvania. Claimant subsequently began a job with the employer working in Delaware in January 2016, where he was injured in March 2016. The WCJ further found that, while Claimant worked for the Employer at several of its job sites, his employment was not continuous, as he was laid off for periods between jobs. One such period was between December 2015, and January 2016. The WCJ also found that the Claimant’s working relationship with the Employer in Pennsylvania ended when he was laid off in December, 2015. He started a new working relationship with the Employer in Delaware in January, 2016, when he accepted a job through the Delaware union hall. Said position required new training and orientation, and was an entirely different job than that previously performed in Pennsylvania.
The WCJ concluded that no nexus existed between Claimant’s employment in Pennsylvania and Delaware, and that Claimant’s employment was principally localized in Delaware on the date of his injury. Accordingly, the WCJ determined, Pennsylvania lacked jurisdiction over the matter.
The WCJ dismissed Claimant’s Claim Petition and Petition for Penalties. Claimant appealed to the WCAB, which affirmed. Claimant then appealed to the Commonwealth Court.
Legal Analysis:
Pursuant to the Pennsylvania Workers’ Compensation Act, a claimant has the burden of establishing jurisdiction for a claim. In order to meet this burden, a claimant must show, by a preponderance of the evidence that: (1) the employer has a place of business in Pennsylvania and that he or she regularly works at or from such place of business; or (2) having worked at or from such place of business, the claimant’s duties have required him or her to go outside of Pennsylvania for a period of not more than one year; or (3) if clauses one and two do not apply, the claimant is domiciled in Pennsylvania and spends a substantial part of his or her working time in the service of his or her employer in Pennsylvania.
Further, for a court to consider several distinct jobs as a single period of employment, there must be evidence of an ongoing employment relationship. An ongoing employment relationship does not exist where a claimant works for an employer on a per-job basis followed by a break in employment during which he works for a different employer before being rehired by the original employer.
Applying these principles, the Commonwealth Court held that Claimant failed to establish Pennsylvania jurisdiction. The Court concluded that, at the time of injury, Claimant worked exclusively in Delaware, and no ongoing employment relationship existed between Claimant and the employer. For this reason, Claimant’s prior work in Pennsylvania was irrelevant.
Takeaway:
Where a claimant alleges an extraterritorial injury, the precise employment history may be critical in determining whether Pennsylvania jurisdiction exists. In this regard, the length of service, temporary or permanent nature of individual jobs, and frequency of layoffs all present as critical factors which may affect a jurisdiction analysis. For this reason, each case is uniquely fact-intensive.
Any questions regarding this case can be directed to Justin D. Beck, Esquire, at 412-926-1441 or at JBeck@tthlaw.com
Valley Stairs and Rails v. WCAB (Parsons), No. 1100 C.D. 2017 (January 24, 2019)
Pennsylvania Commonwealth Court
By: Deborah B. Richman, Esquire
Because the employer paid Claimant wages for the date of injury, the date of disability for purposes of starting the 90 day countdown on stopping the NTCP was determined to be the first day that Claimant was entitled to receive indemnity benefits, not the date of injury.
Background:
Claimant alleged a low back strain while working for the employer on March 27, 2015. He did not return to work that day or any day thereafter. Importantly, he received full pay from the employer for the date of injury. On April 13, 2015, the employer sent a NTCP which acknowledged the low back strain on March 27, 2015 and noted that the 90 day period ran from March 30, 2015, through June 27, 2015. On June 27, 2015, the employer filed a Notice of Workers’ Compensation Denial (NCD) and on June 28, 2015, filed a second NCD and Notice Stopping Temporary Compensation Payable. The following day, the Bureau issued a Notice of Conversion of Temporary Compensation Payable. Claimant filed a Penalty Petition alleging that the employer violated the Act by stopping payment of compensation benefits after the conversion of the NTCP to an NCP.
The WCJ noted that for purposes of the Act, disability is defined as wage loss. Because Claimant received his full pay for the date of injury, March 27, 2015, the WCJ determined that Claimant’s disability began on Monday, March 30, 2015, the day he began receiving indemnity benefits. Thus, the WCJ found that the employer’s June 29, 2015 Notice Stopping was filed on the 90th day of Claimant’s disability and the Notice of Conversion was improperly issued by the Bureau and thus void (as the first day of disability is excluded from the computation of time as well as the last day, June 28th, because it fell on a Sunday). The WCJ found that Claimant failed to prove a violation of the Act and denied the Penalty Petition. The WCAB reversed, finding that the 90 day period began on the first date that Claimant was entitled to receive disability benefits, March 27, 2015, and remanded for a determination of the appropriate penalty amount, if any. The employer filed an emergency motion for appellate certification of the WCAB’s order and a request for an immediate stay of the order, which the WCAB denied. The WCAB also refused to certify its order. The Commonwealth Court granted the employer’s petition for review under Pa. R.A.P. 1311 (when the administrative agency refuses to amend its order and the case is egregious, a petition for review may justify corrective action of the exercise of discretion by the lower tribunal).
Legal Analysis:
The Court deferred to the Bureau’s interpretation of Section 406.1(d) of the Act, to determine when the 90-day period began for purposes of an NTCP, acknowledging that interpretation of a statute by an administrative agency by means of its regulations is entitled to great weight unless the regulation is clearly erroneous or inconsistent with the statute under which it is promulgated. According to 34 Pa. Code § 121.15, payment of indemnity benefits are to begin on the date that the claimant is unable to continue to work by reason of injury unless he is paid full wages for the day. Hence, the Court determined that “disability” commences on the day following the injury when a claimant is paid her full wages for the day or shift on which the injury occurred. Because Claimant was paid wages by his employer on March 27, 2015, and did not work weekends, his disability did not begin until the first date for which he was entitled to receive indemnity benefits, Monday, March 30, 2015. Because the employer filed the Notice Stopping and NCD on June 28, 2015, both were issued timely and the Notice of Conversion issued by the Bureau was void.
Takeaway:
This decision is clearly a win for employers and insurers. It’s also a reminder that the language of the Bureau’s own regulations may prove successful in challenging its actions. Yet, the decision is very fact intensive. But for the employer paying Claimant wages for the date of injury, the case would have had a different result. Accordingly, it is a best practice to assume the date of injury as a target start date for the 90-day period to later avoid a complicated rehashing of who paid what to whom and when in drawn-out litigation.
Questions regarding this case can be directed to Deborah B. Richman, Esquire, at 215-564-2928 x 8502 or at DRichman@tthlaw.com
Steven Simmons v. WCAB (Sunoco, Inc. (R&M)), No. 51 C.D. 2018 (November 15, 2018)
Pennsylvania Commonwealth Court
By: Joseph J. Shields, Esquire
The Commonwealth Court reversed the Order of the WCAB, which had reinstated Claimant’s disability status to total disability from partial disability as of the date of the Supreme Court’s Decision in Protz II. The Commonwealth Court agreed with reinstatement, but vacated and remanded to the WCAB, with further direction to remand to the WCJ, for additional proceedings to determine the proper date of reinstatement consistent with the Court’s Decision in Whitfield.
Background:
Claimant suffered a work injury in 2006. In 2009, Claimant underwent an IRE and the physician concluded Claimant had an impairment rating of 33%. Employer then filed an Amended Notice of Change in Workers’ Compensation Disability Status changing Claimant’s disability from total to partial disability effective August 7, 2009. Claimant did not challenge his change of status within 60 days. In 2015, the Commonwealth Court issued its Decision in Protz I, which found that portions of Section 306(a.2) of the Act were unconstitutional, as they were unconstitutional delegations of legislative authority. However, the Court did not strike down Section 306(a.2) in its entirety. Following Protz I, Claimant filed a reinstatement petition alleging that the IRE in his case was unconstitutional because it used the 6th Edition of the AMA Guides. The WCJ denied the petition because Claimant failed to challenge his change in status within 60 days. Claimant appealed to the WCAB. While that appeal was pending, the Supreme Court issued its Decision in Protz II, which found all of Section 306(a.2) of the Act to be unconstitutional. Based upon Protz II, the WCAB reversed the WCJ’s Decision and reinstated Claimant’s benefits as of June 20, 2017, the date of the Supreme Court’s Decision in Protz II. The WCAB further held that Claimant was not entitled to reinstatement to total disability as of the date of the change in status, August 7, 2009, as he did not challenge his change in status within 60 days. Claimant appealed, arguing that his disability status should be reinstated as of August 7, 2009 because the WCAB erred in relying upon provisions contained in Section 306(a.2) concerning challenging a change in status within 60 days, as Section 306(a.2) was found unconstitutional in its entirety. Claimant requested that the Commonwealth Court affirm the WCAB’s reinstatement, but reverse the WCAB as to the effective date of reinstatement.
Legal Analysis:
The Commonwealth Court vacated the WCAB’s Decision, and remanded the matter to the WCAB with direction to further remand to the WCJ for additional proceedings to determine the proper date of reinstatement consistent with the Court’s Decision in Whitfield. The Court noted that it had addressed this very issue earlier in the year in its Decision in Whitfield. In that case, the claimant’s disability status was changed to partial disability based upon an IRE. Claimant did not challenge the change in status until after Protz I. The WCJ denied the reinstatement petition and the WCAB affirmed. The Commonwealth Court reversed, finding that a claimant has three years from the date of last payment of compensation to seek reinstatement. Further, a claimant must demonstrate that they continued to be disabled to be entitled to reinstatement based upon an unconstitutional IRE. A claimant can satisfy this through his or her own testimony. The burden then shifts to the employer to present evidence to the contrary. If a claimant’s testimony is credited, and the employer does not present competent evidence to the contrary, the Court held that a claimant would be entitled to reinstatement as of the date Claimant filed his or her reinstatement petition. Accordingly, the Court reversed the Decision of the WCAB, which reinstated Claimant’s benefits as of June 20, 2017. The Court gave further instructions to remand to the WCJ so that additional proceedings can be held which conform Claimant’s reinstatement to the Court’s Decision in Whitfield, specifically that reinstatement is proper as of the date Claimant filed his reinstatement petition.
Any questions regarding this case can be directed to Joseph J. Shields at 570-820-0240 or at JShields@tthlaw.com
Aqua America, Inc. v. WCAB (Jermon Jeffers, deceased), No. 1831 C.D. 2017 (December 4, 2018)
Pennsylvania Commonwealth Court
By: Justin D. Beck, Esquire
Addressing the entitlement of disabled dependents to benefits past the age of majority, the Commonwealth Court held that a claimant must prove an adverse impact to earning power in order to secure compensation.
Background:
In Aqua America, the decedent was fatally injured in a work-related tractor-trailer accident. At the time of his death, he was married to Claimant. Their daughter, Janice, who was then 17 years old, suffered from retinitis pigmentosa, an incurable, progressive eye disease that substantially impairs one’s peripheral vision.
Claimant filed a Fatal Claim Petition for death benefits, alleging, amongst other items, that Janice was disabled, dependent, and entitled to ongoing compensation. The WCJ determined that Janice’s benefits were to continue beyond the age of 18 until such time as the employer met its burden of proving that Janice was capable of self-support. The employer appealed, and the WCAB affirmed. The Commonwealth Court vacated and remanded.
Legal Analysis:
The Commonwealth Court invoked Section 307 of the Act, which states, in pertinent part, that compensation is payable to a child under the age of eighteen, “unless such child … is dependent because of disability when compensation shall continue or be paid during such disability of a child … over eighteen years of age ….”
On appeal to the Commonwealth Court, the employer argued that the WCJ’s finding that Janice was disabled by her eye disease was not supported by substantial evidence. Specifically, while the Claimant that proven that Janice garnered a diagnosis of the aforementioned disease, she had not proven an actual disability.
The Commonwealth Court agreed. Although Claimant had presented sufficient evidence to establish that Janice was losing her peripheral vision, and difficulty driving and functioning without proper lighting was likely to ensue, she failed to establish that Janice’s earning power was adversely affected by the condition. In this regard, no evidence had been submitted to support the conclusion that Janice’s eye disease made it impossible for her to earn an income.
Takeaway:
Where it is alleged that children over the age of 18 remain dependent due to disability, it remains the claimant’s burden to establish that the dependent’s earning power is adversely affected by the condition in order to secure entitlement to ongoing compensation.
Any questions regarding this case can be directed to Justin D. Beck, Esquire, at 412-926-1441 or at JBeck@tthlaw.com
SIGNIFICANT NEW JERSEY CASE SUMMARY
The Plastic Surgery Center v. Malouf Chevrolet-Cadillac, Inc.,
A-5597-16T1 (App. Div January 17, 2019)
By: Deborah B. Richman, Esquire
The Superior Court has determined that medical providers are not bound by a two-year time bar, but rather have six years to file medical provider Claim Petitions.
Background:
In 2012, the Legislature amended N.J.S.A. 34:15-15 to grant the Division of Workers’ Compensation exclusive jurisdiction over medical provider claims for payment of services rendered to injured employees. Because the Legislature was silent on the statute of limitations to bring same, it remained unsettled until now how long medical providers had to bring their claims. Prior to the amendment in 2012, medical providers filed such claims in Superior Court and had no obligation to participate in their patients’ pending workers’ compensation cases. As the medical claims were filed in the Superior Court, medical providers enjoyed a six year statute of limitations for suits on contracts. Since the Legislature changed the jurisdiction of the medical provider claims to the Division, it was questionable whether medical providers were subject to the same two year period in which petitioners could bring a claim, or continued to enjoy the six year statute of limitations for suits on contracts.
Legal Analysis:
Because the Legislature remained mute on the issue of the statute of limitations of bringing medical claim petitions within the Division, the Court looked to legislative intent. It determined that the fact that the Legislature did not simply express that the Act’s two year time bar would apply to medical provider claims is persuasive of its more likely intent to leave the time limit as it was: six years. Further, the Court determined that to assume the statute of limitations for claimants, two years from the date of injury, would be nonsensical, with the result that the window in which medical providers would be able to assert their claims would sometimes expire before their claims accrued. The Court acknowledged that it is not unlikely that an employee might be treated by a medical provider for a period greater than the two year period following the work injury, or not even begin treatment with the medical provider until two years had passed. The Court also nixed the idea that the two year time limit on medical provider claims should begin on the date of service rather than the date of Claimant’s injury as it is contrary to the plain and unambiguous language of N.J.S.A. 34:15-51.
Take Away:
Now that the statute of limitation for medical claim petitions has been defined as six years from the date of service, defendants should expect to see an increased demand for payment on older dates of service and potentially an increase in the number of medical claim petitions filed.
Questions regarding this case can be directed to Deborah B. Richman, Esquire, at 215-564-2928 x 8502 or at DRichman@tthlaw.com