TTH eNotes: Workers’ Compensation: March 2020

SIGNIFICANT PENNSYLVANIA CASE SUMMARIES

Giffear v. Workers’ Comp. Appeal Bd. (Phila. Newspapers Inc.), No. 977 C.D. 2019 (February 7, 2020)

Commonwealth Court of Pennsylvania (Unpublished)

By: Timothy R. Kraeer

The Commonwealth Court addressed the burden of proof in the context of a Reinstatement Petition alleging a worsening of condition following a prior decision by a WCJ finding that the Claimant was capable of performing sedentary work identified by a labor market survey.

Background: The Claimant suffered a work-related injury in the nature of a torn rotator cuff in the right shoulder and a herniated disc at C7-T1. The Employer accepted liability for same by way of Notice of Compensation Payable in 2008. In 2014, Employer was granted a modification of benefits premised on a labor market survey that identified full-time sedentary work within the Claimant’s capability. WCJ Kelley found credible the medical evidence presented by Employer that the Claimant was capable of performing the job. In October 2015, the Claimant underwent a shoulder surgery related to his work injury and subsequently filed for reinstatement alleging a worsening of his condition and his entitlement to a reinstatement of benefits. WCJ Beach granted the reinstatement. In her decision, WCJ Beach found, “Employer submitted no medical evidence to refute the obvious conclusion that Claimant was rendered totally disabled as a result of his work-related surgery on October 26, 2015.” The Workers’ Compensation Appeal Board reversed WCJ Beach. The Commonwealth Court affirmed the Board’s decision.

Analysis: On appeal, the Employer argued that because WCJ Kelley had previously found that Claimant was able to perform work identified by the labor market survey, it was Claimant’s burden to show that he was no longer capable of performing that sedentary work when seeking reinstatement.

The Commonwealth Court began its analysis by restating the burden of proof for reinstatement: “A reinstatement of benefits is proper if a claimant can show that the reason for the suspension or modification of benefits no longer exists,” that the “burden of proof is dependent upon how the claimant’s benefits were suspended or modified,” and that “[w]here a claimant’s benefits are suspended for failing to accept an open and available job within his medical restrictions and he subsequently seeks a reinstatement of those benefits, the burden is on the claimant to show that his injury has worsened and that he is no longer able to perform the job or jobs that he was previously found to be capable of performing.”

The Commonwealth Court rejected WCJ Beach’s reliance on Employer offering no evidence to rebut Claimant’s medical evidence: “It is apparent . . . that WCJ Beach erroneously placed the burden on Employer rather than Claimant.” The Court noted that Claimant’s own physician was asked during his deposition whether Claimant “can work at all in any capacity.” He answered, “yes.”

The Court held that the burden was on the Claimant to show that his work injury had worsened and that, because of his worsening condition, he was no longer capable of performing the sedentary position that formed the basis of Employer’s prior modification of benefits. The Court found that there was “absolutely no medical evidence that his worsened condition precludes [Claimant] from performing the sedentary position.”

Takeaway: The burden of proof to reinstate benefits is on the claimant and that burden will be informed by prior decisions or litigation arising from that injury. Here, the claimant was unsuccessful having his benefits reinstated because he failed to present his petition within the context of the prior modification of benefits, i.e., he failed to consider the effect of the prior decision and findings of the labor market survey.

Questions regarding this case can be directed to Tim Kraeer at 610-332-7001 or TKraeer@tthlaw.com

 

Tyson Shared Servs. v. Workers’ Comp. Appeal Bd. (Perez), No. 1048 C.D. 2019 (February 3, 2020)

Pennsylvania Commonwealth Court (Unpublished)

By: Stephanie A. Walczak, Esquire

When a suspension of benefits is based upon a finding that a claimant failed to pursue a job in good faith, the claimant retains the burden of proof throughout litigation on a Reinstatement Petition.

Background: Claimant injured his right shoulder while working as a mechanic. He underwent rotator cuff surgery, and was released to modified duty thereafter. Claimant was offered a modified duty job consistent with his surgeon’s restrictions, but Claimant failed to return to work. Employer issued a medical-only NCP which described the injury as a work-related right shoulder rotator cuff tear. A Claim Petition was litigated resulting in a decision to grant temporary total disability benefits, but then suspending the benefits as of the date of the modified duty job offer. Claimant then filed a Reinstatement Petition where he testified that he was unable to work in any capacity following a third shoulder surgery. Claimant admitted that the surgeon who performed the third surgery had released him to work with restrictions. However, he presented the testimony of a different doctor who testified that he was unable to work at all. The IME doctor provided work restrictions that were similar to Claimant’s surgeon’s restrictions and were consistent with the previously refused modified duty position. The WCJ granted reinstatement, but only for a limited period finding that Claimant failed to meet his burden of proving that he suffered ongoing disability. The Board affirmed the decision of the WCJ but altered the date of suspension to a later date, the date of the IME.

Holding: The Commonwealth Court held that since there was a finding of bad faith on the part of Claimant, the burden was on Claimant to demonstrate that he was disabled for the period in question. The Commonwealth Court vacated the decision of the Board and upheld the decision of the WCJ, holding that there was no evidence in the record to prove any disability after the date that Claimant was released to return to work light duty by his surgeon (according to the testimony of the IME doctor).

Takeaway: While TTD benefits can be reinstated when the reason for the suspension of benefits no longer exists, the burden of proof changes when there has been a finding of bad faith on the part of a claimant in regard to a modified duty job offer. The claimant then must prove a change in his condition such that he can no longer perform the job offered to him which served as the basis for the earlier suspension.

Questions about this case can be directed to Stephanie A. Walczak, at (610) 332-7025 or swalczak@tthlaw.com

SIGNIFICANT PENNSYLVANIA LEGISLATIVE UPDATE

House Bill Proposes A New Employment Relationship Test for App-Based Enterprises

By: Justin Beck, Esquire

In step with recent national trends, the Pennsylvania House of Representatives has introduced a new bill, entitled the “Application-Based Company Worker Misclassification Act,” which, if passed by the legislature, would create a new employment-relationship test for app-based enterprises, such as Uber and Grubhub. Under the proposed law, workers of such enterprises would enjoy a presumption of employee status, for both workers’ and unemployment compensation purposes, unless the enterprise proves three things:

(1) The person is free from the control and direction of the application-based company in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(2) The person performs work that is outside the usual course of the application-based company’s business; and

(3) The person is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.

The law also imposes criminal penalties for misclassification of app-based workers. Intentional violations are misdemeanors, while non-intentional violations are summary offenses.  Most relevant for workers’ compensation stakeholders, the proposed law imposes criminal liability where an enterprise “fails to properly classify an individual as an employee for purposes of the Workers’ Compensation Act and fails to provide the coverage required under the Workers’ Compensation Act.”

Thomas, Thomas & Hafer LLP will continue to closely monitor these legislative developments and their practical impacts upon client interests.

Questions can be directed to Justin Beck at 412-926-1441 or JBeck@tthlaw.com

SIGNIFICANT NEW JERSEY LEGISLATIVE UPDATE

Governor Murphy Passes Hand and Foot Bill Increasing the Amount of WC Benefits Paid for Loss of Function of the Hands and Feet

By: Deborah B. Richman, Esquire

Governor Murphy has signed Senate Bill (S-782) into law amending 34:15-12, increasing the weeks of compensation payable for injuries to the hands and feet and providing a modest increase for loss of function of the fingers. There is an initial increase in the number of weeks awarded up to 25% loss of function. For more serious hand and foot injuries, over 25% loss of function, there is a second, larger increase. In all, we should expect to see about a 10% increase in the amount of an award for a less serious injury and up to a 30% jump in award for a more serious injury, like 50% of the hand or foot. The law will not affect prior court orders, but opinions are mixed as to whether the law applies to claims presently pending whether filed before or after the effective date of the law. Until caselaw makes its way through the courts to fully and finally resolve this issue, it may be wise to set reserves reflecting the higher award.

Thomas, Thomas & Hafer LLP will continue to closely monitor these legislative developments and their practical impacts upon client interests.

Questions can be directed to Deborah B. Richman at 215-564-2928 x 8502 or at drichman@tthlaw.com