TTH eNotes: Workers’ Compensation: November 2019

SIGNIFICANT PENNSYLVANIA CASE SUMMARIES

Pennsylvania AFL-CIO v. Commonwealth, No. 62 M.D. 2019 (Pa. Commw., filed October 11, 2019, Cohn Jubelirer, J.)

By: Justin D. Beck, Esquire

In a reported decision handed down on October 11, 2019, the Commonwealth Court held that Section 306(a.3) of the Act, added pursuant to Act 111 of 2018, does not represent an unconstitutional delegation of legislative authority in violation of article II, section 1 of the Pennsylvania Constitution.

Background: There, the Pennsylvania AFL-CIO had filed a Petition for Review, seeking declaratory and injunctive relief on the purported basis that Section 306(a.3)’s use of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, sixth edition, was, similar to the now-stricken Section 306(a.2), an unconstitutional delegation of the General Assembly’s legislative function to the American Medical Association (AMA). The AFL-CIO had alleged that Section 306(a.3) continued to suffer from the same constitutional deficiencies previously expounded upon by the Supreme Court of Pennsylvania in Protz II.

The AFL-CIO further averred that nothing in Section 306(a.3) required the AMA to “hold hearings, accept public comments, or explain the grounds for its methodology in a reasoned opinion, which then could be subject to judicial review” nor were the “physicians who author the Guides . . . public employees who may be subject to discipline or removal.” Finally, the AFL-CIO challenged the General Assembly’s delegation to the AMA on the basis that the organization was and is “isolated from the political process, and, . . . shielded from political accountability.”

Legal Analysis: Ultimately, the court was unpersuaded by the AFL-CIO’s arguments. It noted that, in Protz II, the Supreme Court had found that Section 306(a.2) represented an unconstitutional delegation of legislative authority because the provisions of the section did not include any standards or basic policy choices to restrain the AMA’s future enactment of the Guides, which would necessarily become the law by which IREs would otherwise be performed. This, the court emphasized, left the AMA with the ability to “revise the Guides once every ten years or once every ten weeks,” thereby giving the AMA “de facto, unfettered control over a formula that ultimately will determine whether a claimant’s partial[]disability benefits will cease after 500 weeks.”

The court dismissed the constitutional concerns of the AFL-CIO, noting that, “[t]he non-delegation doctrine does not prohibit the General Assembly from ‘adopting as its own a particular set of standards which already are in existence at the time of adoption.’ … That is what the General Assembly did here – it adopted the Sixth Edition, second printing, which PA AFL-CIO admits was in existence when Section 306(a.3) was enacted, ‘as its own.’ … When such an adoption occurs, the General Assembly is exercising its legislative and policy making authority by deciding that it is those particular standards that will become the law of this Commonwealth. It is not delegating its authority to legislate. The General Assembly made a policy decision regarding the standards that will apply to IREs in the Commonwealth going forward. PA AFL-CIO may disagree with that policy decision, but that does not make that decision an improper delegation of the General Assembly’s legislative authority.”

The court emphasized that the legislature’s adopted standards “will remain the standards by which impairment ratings are determined unless or until the General Assembly revisits the issue and amends the WC Act to change those standards. The AMA’s future actions in revising the Guides, whether next month, next year, or in 10 years, will have no effect on the status of IRE determinations in Pennsylvania absent future action by the General Assembly.”

For all of these reasons, the court upheld Section 306(a.3) of the Act as constitutional.

Takeaway: With the Commonwealth Court’s decision, it is now clear that Section 306(a.3) of the Act is indeed constitutional and enforceable. Accordingly, failures and refusals of claimants to present to Impairment Rating Evaluations should be vigorously challenged via petitions to compel, based in critical aspect upon Pennsylvania AFL-CIO v. Commonwealth.

Any questions regarding this case can be directed to Justin D. Beck, Esquire, at (412) 926-1441 or at JBeck@tthlaw.com.

Benyo v. WCAB (Hazle Township Supervisors), No. 1694 C.D. 2018, unreported (Pa. Commw., filed October 2, 2019, Leadbetter, S.J.)

By: Deborah B. Richman, Esquire

In an unreported opinion released on October 2, 2019, the Commonwealth Court held that a claimant’s review petition was time-barred under the three-year statute of limitations found in Section 413 where the same had been filed more than three years following the date of injury and no indemnity benefits had been paid.

Background: There, the claimant had sustained a work-related injury in 2011, but lost no time from work. Instead, he continued to work full-time with limitations. Approximately four years later, in 2015, the employer issued a medical-only notice of compensation payable, formally acknowledging the injury to involve cervical, thoracic, and lumbar strains. In August 2016, the employer filed two identical petitions to terminate, alleging that the claimant had fully recovered from the work injury as of June 6, 2016. In December 2016, the claimant filed a petition to review, seeking to correct the accepted injury description to include head and spinal injuries. Critically, as will be seen, both parties had filed their respective petitions approximately five years following the date of injury.

The WCJ denied the termination petitions, but granted the review petition, in part, directing that the NCP be amended to add a head injury with headaches and concussive symptoms.

On appeal, the Board reversed the partial grant of the review petition and affirmed the denial of the termination petitions. Claimant appealed to the Commonwealth Court, which has now affirmed the WCAB.

Legal Analysis: The court noted at the outset that, in cases where a party seeks to correct a NCP to add injuries that existed at the time of its issuance but were not listed, the first paragraph of Section 413 controls. That paragraph provides: “A [WCJ] may, at any time, review and modify or set aside [a NCP] and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such [WCJ], if it be proved that such [NCP] or agreement was in any material respect incorrect.” 77 P.S. § 771 (emphasis added). Indeed, a claimant has three years from either the date of injury or the last payment of compensation to timely file a review petition. The court indicated that where, as here, no indemnity benefits were paid, the date of injury controls for purposes of calculating the three-year limitation.

Before the court, the claimant had acknowledged the aforementioned law, however, he argued that the employer’s termination petition should have operated as a de facto expansion of the relevant time period for his otherwise untimely review petition. In purported support of this rule, the claimant cited Pizza Hut, Inc. v. WCAB (Mahalick), 11 A.3d 1067 (Pa. Cmwlth. 2011). In that case, the claimant had filed a petition to expand the description of her work injury more than three years following the last date of compensation paid. However, because the employer had filed its termination petition within three years of the last payment of compensation, the court held that the WCJ properly expanded the description of injury as set forth in the NCP during the termination petition proceeding. In other words, the WCJ could correct the NCP during the course of the termination proceeding because the employer had filed its termination petition within the relevant time period.

Here, however, the court rejected the claimant’s invitation to expand the holding in Mahalick to provide that a claimant may seek amendment of the description of injury when a termination petition is pending irrespective of whether that petition had been filed within the three year statute of limitations provided for by Section 413. Instead, the court reaffirmed the rule that a claimant seeking expansion of the description of the work injury must do so “in the course of the proceedings under any petition pending before such [WCJ]” within three years of the last payment of compensation or the date of injury. Notably, a claimant need not file a separate petition to support such a corrective amendment. Nonetheless, principles of fairness and due process apply, and require that there must be notice of the theory and an opportunity to respond by the employer.

Based upon the foregoing, the court affirmed the Board, dismissing the petition to review and affirming the denial of the petitions to terminate.

Takeaway: Where a Medical-Only NCP is issued, a claimant has three years from the date of injury to file a petition to review so as to amend the controlling description of injury. Moreover, if an employer files a petition within three years of the date of injury, a WCJ may correct the description of injury in a final adjudication under the purview of the same.

Any questions regarding this case can be directed to Deborah B. Richman, Esquire, at (215) 564-2928 x8502 or at DRichman@tthlaw.com.

Bryn Mawr Landscaping Co. v. WCAB (Cruz-Tenorio), reported (Pa. Commw. No. 1268 C.D. 2018, filed October 18, 2019, Leavitt, J.)

By: Evan J. Jenkins, Esquire

In a reported decision handed down on October 18, 2019, the Commonwealth Court affirmed the WCJ and Appeal Board in their grant of claimant’s claim petition and denial of employer’s suspension and termination attempts. The court also affirmed an award of partial unreasonable contest attorney’s fees and, remarkably, imposed on employer frivolous appeal attorney’s fees.

Background: The claimant, Cruz-Tenorio, was a Mexican citizen laboring, under a guest worker visa, at tree work near employer’s jobsite in Paoli, PA. He was struck in the head. He received immediate emergency room treatment and was paid benefits voluntarily under a Medical-Only NCP. That document acknowledged a concussion injury. The carrier denied the claim for disability, however, as it was waiting for its IME physician to tender (presumably) an Affidavit of Recovery. Employer refused to pay disability even though it received immediate disability slips generated in the wake of the accident.

In the litigation which thereupon unfolded, claimant presented expert medical evidence of his complete inability to undertake labor. Claimant also sought to prove, through his experts, that his condition far transcended a concussion and also included neck and shoulder.

Employer’s expert, meanwhile, recognized the head injury and post-concussive syndrome, but opined that, as of the date of the IME, claimant had fully recovered. He rejected the idea that claimant had sustained any other injuries. During the pendency of the case, the employer agreed to pay total disability benefits until the time of the IME.

Later, the WCJ granted the claim in all respects, denied the employer suspension and termination petitions, and awarded partial unreasonable contest fees. Notably, she did so even though counsel had not submitted a quantum meruit statement. As to the claim itself, the WCJ had credited claimant’s medical evidence and rejected that of employer.

The Appeal Board affirmed, as has the Commonwealth Court.

Legal Analysis: Employer asserted that the WCJ’s fact findings on disability and scope of injuries were not supported by substantial evidence, but the court agreed with claimant that these were mere impermissible assaults on credibility determinations. Indeed, the court imposed frivolous appeal attorney’s fees on the appellant and remanded for a calculation of the same.

Also without merit – and part of the frivolous appeal – was employer’s abiding assertion that claimant’s purported non-documented status in the weeks and months after the work injury worked to disqualify him from benefits. Employer, in this regard, argued that claimant bore the burden of proof of showing that he was legally able to work, but the court pointed out that the opposite was true, and that employer had not proven that claimant was now undocumented. The court declared, “Claimant was working legally pursuant to his H-2B visa when he sustained the work-related injury … [and] Employer failed to establish that Claimant’s loss of earning power was caused solely by his immigration status.”

Finally, no error was committed in the WCJ’s assessment of partial unreasonable contest fees. The employer presented no evidence which, even had it been believed, would have supported the initial denial of disability benefits. The contest only became reasonable at the time of the IME. And, further, the WCJ committed no error in calculating the value of fees at $4,000.00. The WCJ has the power to analyze the record and generate a fee award even if counsel does not submit an itemized or other claim.

Take Away: This case represents one in which largely unfounded legal and factual theories were asserted by the employer in contravention to well-established law. For these reasons, while rare, the court went so far as to impose frivolous appeal attorney’s fees.

Any questions regarding this case can be directed to Evan J. Jenkins, Esquire, at (412) 926-1419 or EJenkins@tthlaw.com.

Stephen Clark v. WCAB (Keystone Lawn Spray and Zenith Ins. Co.), No. 195 C.D. 2019, unreported (Pa. Commw., filed October 30, 2019, Covey, J.)

By: Justin D. Beck, Esquire

In an unreported decision handed down on October 30, 2019, the Commonwealth Court held that a pro se claimant’s appeal from a referee’s 1988 decision, which had terminated his benefits, was, in fact, untimely.

Background: The claimant had sustained a work injury on March 2, 1982; benefits had been at once awarded and terminated in the referee’s decision dated September 20, 1988, with a full recovery found to have been attained as of August 16, 1983. On October 15, 1988, the claimant appealed to the WCAB, however, his counsel voluntarily withdrew the same. On May 30, 1990, the WCAB closed the record without reaching the merits of the appeal.

Thereafter, on February 19, 1993, the claimant appealed to the WCAB nunc pro tunc, requesting a rehearing. The same was to be denied, and the court, at that time, affirmed.

24 years passed. On November 3, 2018, the claimant again appealed to the WCAB, challenging the referee’s decision. On February 7, 2019, the WCAB denied the appeal for lack of jurisdiction, as the decision had not been filed within 20 days as required by Section 423 of the Act, or within 18 months of the WCAB’s 1990 closure of the case, as required by Section 426.

The claimant appealed to the court, which has now affirmed the Board.

Legal Analysis: The Court noted that grounds for nunc pro tunc relief had not been established, such as extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct, either by a third party or by the appellant.

The court emphasized that, here, the claimant had not filed an appeal from the referee’s decision until November 3, 2018, or more than 30 years after the same had been circulated. For this reason, the court held that the Board had properly denied the appeal as untimely pursuant to Section 423. Similarly, even if the appeal were to be construed as an argument for rehearing pursuant to Section 426 of the Act, the same had not been filed within 18 months of the WCAB’s 1990 order.

For these reasons, the court held that the WCAB had no jurisdiction to consider the claimant’s petition, and had therefore properly denied the appeal.

Takeaway: This case is exemplary of the variety which appears before the Court only where a claimant is unrepresented by counsel. Nevertheless, the Court undertook its due diligence and explained the bases for its denial of the appeal, despite the same quite clearly appearing to be noncognizable on its face.

Any questions regarding this case can be directed to Justin D. Beck, Esquire, at (412) 926-1441 or at JBeck@tthlaw.com.