Workers' Compensation Law Alerts

Delaware
By Paul V. Tatlow, Esq. (302.552.4035 or pvtatlow@mdwcg.com)

A look at Wal-Mart v. Watson and the Delaware Supreme Court's outline of a reasonable job search and the use of the labor market survey.
Watson v. Wal‐Mart, Del. Supr. No. 442, 2010 (Oct. 21, 2011)

The Delaware Supreme Court recently decided this case, which impacts the filing of petitions for review to terminate or reduce a claimant's total disability benefits. Watson is an appeal from an Industrial Accident Board decision in favor of the employer. The claimant suffered a low back injury during the course of his employment. His physician subsequently released him to sedentary or light-duty work with a 20‐pound lifting restriction. The employer then filed a petition to terminate his total disability benefits based on the claimant's release to return to work with restrictions.

At the hearing before the Industrial Accident Board, the claimant agreed that his doctor released him to return to work with restrictions but argued that he remains totally disabled because he is a displaced worker. A labor market survey was presented by a vocational expert on behalf of the employer. The labor market survey listed jobs within the claimant's work restrictions and were considered entry level positions requiring a high school diploma. The claimant presented evidence through his job search log, showing that he applied for 28 jobs online and in person, including jobs identified on the labor market survey. The claimant testified that he disclosed his work restrictions on the job applications. He did not hear back from most of them and received two responses from employers that informed him that they could not hire him because the jobs were beyond his work capabilities. He did admit that he knew when he applied that these two jobs were not within his work restrictions, but he needed to find work. He also testified that some of the jobs on the labor market survey were not hiring.

The Board subsequently found in favor of the employer and terminated the claimant's total disability benefits. On petitions for review, it is the burden of the employer to determine that the claimant is physically capable of returning to work. Once that is established, the claimant may show that he is a prima facie displaced worker because of his age, physical limitations, education and mental capacity. If the Board finds that he is not a prima facie displaced worker, he can still show that he is considered a displaced worker. A displaced worker is a partially disabled claimant who is deemed totally disabled because he is unable to work in the competitive labor market as a result of a work‐related injury. The claimant has the burden to prove that he made a reasonable job search but was unable to obtain employment because of his disability. If the claimant satisfies the burden, then the employer may rebut the evidence by showing that there are jobs available within the claimant's restrictions.

In the Watson case, the Board reasoned that the claimant was not a prima facie displaced worker. He was 54 years old with a high school diploma and transferable skills based on his education and extensive work experience. Since he was not considered a prima facie displaced worker, the Board then looked to see if he was displaced based on a reasonable effort to obtain employment but was unsuccessful due to his injury. After a review of the evidence, the Board found that the claimant did not conduct an adequate job search and was not a displaced worker. The Board also noted that he failed to prove that he was denied employment because of his restrictions. In addition, the Board accepted the testimony of the employer's vocational case manager who prepared the labor market survey to show that there are jobs available in the open labor market within the claimant's restrictions. The Board found in favor of the employer and terminated the claimant's total disability benefits. The employee appealed to the Superior Court, which affirmed the Board's decision. Thereafter, the employee appealed to the Delaware Supreme Court.

On appeal, the Delaware Supreme Court focused on what evidence is required to prove and disprove that a claimant is a displaced worker. The Court decided that in cases where a claimant applies to several jobs that are within his work restrictions and actually available, there is no basis to find that the search is unreasonable. In addition, if an employer has to establish that there are jobs available within the claimant's limitations, a labor market survey will not automatically satisfy the employer's burden. The Court highlighted that while labor market surveys have a place in the process, they only serve to prove that jobs exist and were available at some point. In addition, the Court noted that if a worker applies for jobs in a labor market survey and is unsuccessful, then the value of the survey is significantly diminished. The Court stated that the labor market survey "must be clear that appropriate jobs are actually available." In addition, the Court took in consideration the fact that when an employer cannot accommodate an injured employee, it is probative that the claimant is displaced. The Court also noted that, in a situation when a claimant who has not heard a response from a potential employer where he listed his disability/work restrictions on the application, there is a presumption that the reason he did not receive a response was because of his work‐related restrictions.

The Board's decision denying the claimant's petition to determine compensation due is affirmed where there is substantial evidence to support the conclusion that the claimant's low back condition was not the result of his employment. The court noted that the Board need not pinpoint the exact cause of the claimant's condition.
Kenny Hoffecker v. Lexus of Wilmington, (Superior Court for New Castle County - C.A. No. N10A-08-010) Decided Sep. 14, 2011

This case involved an appeal by the claimant to the Superior Court from the Board's decision which denied the claimant's petition to determine compensation due by finding that the claimant had not established by a preponderance of the evidence that his low back injury was caused by his employment as a car mechanic. The facts showed the claimant had worked for the employer for 16 years as a mechanic and for 11 years prior to that he had worked as a mechanic for a different car dealer. The claimant worked 10-12 hours per day, four days a week, and his job duties required bending and lifting between 30-70 pounds. The claimant also spent some of his time off the job working on cars. The evidence showed that the claimant first missed work due to back pain on April 27, 2009, but he did not report this to the employer as a work injury. Shortly thereafter, the claimant received medical treatment but did not inform the physician of a specific trauma or that his low back pain was generally related to his employment. The claimant stopped working in July 2009, and the employer presented a fact witness who testified that the claimant gave as his reason that he hated working for the employer.

At the hearing before the Board, the claimant presented medical testimony from his medical expert, who testified that the claimant's low back condition was the result of his employment and was likely caused by the years of bending over and performing heavy lifting. However, in other portions of this expert's testimony, he indicated the possibility that the claimant's condition was chronic and was unrelated to his employment. The employer presented testimony from their own medical expert, who frequently testifies as a treating physician on behalf of claimants. The employer's expert testified that the claimant had a degenerative condition in his lumbar spine typical of a person of his age who has been performing labor for over 20 years.

The Board's decision issued on July 26, 2010, denied the petition and rejected as not persuasive the testimony of both the claimant and his medical expert. The claimant's appeal to the Superior Court argued that the Board defied common sense by finding that the claimant's non-work-related activities could have caused his lumbar condition but that his employment did not do so. The court, in affirming the Board's decision, rejected that argument and stated that this is not what the Board found. To the contrary, the Board found based on the testimony of the employer's expert that the claimant's condition was simply not related to his employment. The court emphasized that the Board need not ascertain the precise cause of the claimant's lumbar condition since that is the claimant's burden of proof. It is sufficient that the Board determine whether the claimant has met his burden of proof, and in this case, they had substantial evidence and committed no errors of law in finding that the claimant had not done so. In short, the Board properly concluded that the evidence was not sufficient to show a causal relation between the claimant's low back condition and his employment, even under a cumulative detrimental effect theory.

The Board holds that the employer is not liable to pay travel expenses for the claimant's spouse to accompany him to medical appointments absent medical evidence that the claimant requires the assistance of a travel companion.
Jason Bristor v. Dover Downs, Inc., (IAB #: 1353147) Decided Aug. 25, 2011

In Delaware, pursuant to §2322(g) of the Act, a claimant is entitled to mileage reimbursement for travel to and from medical appointments for a work-related injury. In this case, the claimant had originally moved to Nebraska following his work injury and sought payment for not only his own travel expenses but also those of his wife in returning to Delaware for medical treatment.

In a prior ruling, the Board had found that the employer was only required to pay for the claimant's travel expenses and not for those of a spouse since there was no evidence of the medical necessity of claimant having a travel companion.

Following this ruling, the claimant then moved to Puerto Rico and filed a motion seeking to have travel expenses paid from Puerto Rico to Delaware for an upcoming defense medical examination.

The facts show that the claimant and his wife were willing to use airline travel vouchers in order to fly from Puerto Rico to Delaware. However, the claimant was seeking an order directing the employer to pay for a rental car, in lieu of a car service, and to pay for the gas and tolls, with the intention that the claimant's wife would drive the car from the airport to the medical appointment. The employer refused the request to pay for the rental car in part based on increased liability issues that would result if the claimant's wife were driving the rental car as opposed to the employer providing a car service for the claimant.

The Board commented that the claimant's request was not unreasonable under the totality of the circumstances. However, the Board held consistent with its prior ruling that the employer was not required to pay any additional costs associated with the claimant's wife accompanying him on this trip. Specifically, the Board stated that it would not order the employer to rent a car for the claimant's wife to drive since there was no medical evidence showing that the claimant required a travel companion. Therefore, the claimant's wife was permitted to accompany him on this trip, but she would need to pay her own expenses for doing so.

New Jersey
By Dario J. Badalamenti, Esq. (973.618.4122 or djbadalamenti@mdwcg.com)

Employee v. independent contractor: the Appellate Division revisits the definition of "employee" under the New Jersey Workers' Compensation Act.
Johantgen v. Brandywine Senior Care Center, Docket No. A-4883-09T1, 2011 N.J. Super. Unpub. LEXIS 2718 (App. Div., decided Oct. 31, 2011)

The petitioner had worked as a licensed hairdresser at the respondent's nursing home since 1992, where, once per week, she provided hairstyling and other personal grooming services to the residents of the nursing home. In addition to a dedicated space for the beauty salon, the respondent provided the salon's chairs, hairdryers, a sink, shampoos and a cabinet for the petitioner's supplies. The petitioner provided her own scissors, hair dye and some other items. The residents scheduled their appointments with the petitioner directly through the nursing home, which set the fee schedule for the petitioner's services. At the end of the day, the petitioner would prepare a billing statement from which the respondent would deduct 15% of the receipts and pay the petitioner the balance. The only other regular employment the petitioner maintained was washing hair once a week at a friend's salon. In December 2003, the petitioner sustained bodily injury when she fell from a chair while hanging Christmas decorations in the salon area. The decorations were provided by the respondent's activities department to make the work environment more festive for the holidays.

The petitioner subsequently filed a claim for workers' compensation benefits, which the respondent contested on the grounds that the petitioner was an independent contractor and not an employee under the New Jersey Workers' Compensation Act. N.J.S.A. 34:15-36 defines "employee" as: "[A]ll natural persons, including officers of corporations, who perform service for an employer for financial consideration, exclusive of . . . casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion of which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring[.]" The judge of compensation ruled in favor of the petitioner, finding that she was the respondent's employee at the time of the accident and entitled to workers' compensation benefits. The respondent appealed.

In affirming the judge of compensation's ruling, the Appellate Division relied on Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397 (App. Div. 1992), in which the Appellate Division developed two tests to determine if an individual is an "employee" within the meaning of the Act or an independent contractor-i.e., the "control test" and the "relative nature of the work test." Both tests are designed to draw a distinction between those occupations which are properly characterized as separate enterprises and those which are in fact an integral part of the employer's regular business.

The control test focuses on the degree of control exercised by the employer over the means of completing the work; the source of the worker's compensation; the source of the worker's equipment and resources; and the employer's termination rights. Under the relative nature of the work test, a petitioner must show a "substantial economic dependence" on the employer. This is demonstrated when there is a "functional integration" of the parties respective operations.

Here, the petitioner was not free to select her customers but, rather, depended entirely on the respondent to supply customers to her. The petitioner relied on the respondent for making the residents' appointments and had little control over the timing of her work. Although the petitioner provided some supplies, the respondent provided all of the essential hardware to run the salon. The petitioner's compensation was also based on a percentage of the fees paid by the customers. Finally, the respondent maintained the power to terminate the petitioner at will. Due to the interdependence of the petitioner's work with the operation of the respondent's business, the Appellate Division found an employer-employee relationship did exist. "In this context," the Appellate Division concluded, "decorating the salon for the holidays can be viewed as performing an incidental, though not required service for the employer."

The Appellate Division addresses an insanity-based challenge to the statute of limitations provision of the Workers' Compensation Act.
Zito v. AIC, Docket No. A-1070-10T2, 2011 N.J. Super. Unpub. LEXIS 2451 (App. Div., decided Sep. 26, 2011)

The petitioner was employed as a mechanic by the respondent. On June 18, 2004, the petitioner injured his back at work while lifting a manhole cover. He received a period of authorized medical treatment and was assessed at maximum medical improvement on September 14, 2004. He subsequently underwent an IME to assess his permanent disability. On February 22, 2005, the respondent sent a letter to the petitioner notifying him of its intent to make a voluntary offer and tender of workers' compensation permanency benefits based on its IME findings. The respondent issued payments to the petitioner with the last payment of benefits dated April 20, 2005.

In 2007, the petitioner consulted an attorney for his injuries. On March 5, 2008, the petitioner filed a claim with the Division of Workers' Compensation for injuries arising out of his June 18, 2004, work-related accident. The respondent raised a statute-of-limitations defense in its answer and then moved for dismissal based on this defense. The respondent relied on N.J.S.A. 34:15-51, which provides that an initial claim for workers' compensation benefits must be filed "within two years after the date on which the accident occurred, or in case a part of the compensation has been paid by the employer, within two years after the last payment of compensation."

In opposition to the respondent's motion, the petitioner argued that the statute of limitations should be tolled under the "insanity clause" of N.J.S.A. 34:15-27. The petitioner submitted an affidavit in which he certified that he had severe dyslexia since childhood and appended school records to his affidavit indicating that he had been classified as having a neurologic and perceptual impairment. The petitioner claimed that his dyslexia prevented him from pursuing any remedies he may have been able to exercise had he been able to read or comprehend the respondent's letter notifying him of the voluntary offer and tender, or had someone been able to explain to him its significance or the effect that a delay in action would have on his recovery of benefits. Without oral argument, the Judge of Compensation entered an order on October 13, 2010, granting the respondent's motion and dismissing the petitioner's claim. The petitioner appealed.

In affirming the Judge of Compensation's ruling, the Appellate Division relied on the plain language of N.J.S.A. 34:15-27. That section, which addresses not the initial filing of a workers' compensation claim, but the reopening of a previously filed claim, provides that: "[A]n order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment[.] If any party entitled to review under this section shall become insane within the aforesaid 2-year period, his insanity shall constitute grounds for tolling the unexpired balance of the 2-year period, which shall only begin to run again after his coming to or being of sane mind." The Appellate Division found that the plain language of N.J.S.A. 34:15-27 did not provide the petitioner with a safe harbor from the consequences of his failure to file a timely claim. The Appellate Division pointed to the fact that the petitioner's claim was an initial petition, not a petition to reopen a previously filed claim and, as such, the provisions of the statute did not apply.

The Appellate Division refrained from considering whether the petitioner's learning disability fell within the scope of the term "insane" found in N.J.S.A. 34:15-27. However, in quoting the Judge of Compensation, the Appellate Division did allude to its possible position: "[Dyslexia] has no bearing on one's intelligence or ability to understand one's legal rights. It is a learning disability. Petitioner's situation is no different from that of a person who does not speak English and who does not read English. Such a person would still be bound by the statutory time frame for filing a claim petition. If we carve out an exception to the statute of limitations for someone with a learning disability of dyslexia, it would open the door for an onslaught of other exceptions being carved out."

Goyden v. State Judiciary and the standard for compensable workplace stress.
Wildstein v. Middlesex County Department of Weights and Measures, Docket No. A-3389-09T1 , 2011 N.J. Super. Unpub. LEXIS 1570 (App. Div., decided Jun. 17, 2011)

The petitioner was employed as an inspector by the respondent. From 2003 through 2007, he was supervised by John Doe ("Doe") who, the record clearly established, managed the department in which the claimant worked in a very lax manner. Employees were not held to requirements of strict time reporting, were allowed to come and go without significant accountability, and their whereabouts were not closely monitored during the work day. The petitioner, like other employees, often left work early without accounting for his time. There was also testimony from a co-employee that the petitioner occasionally conducted his own side business manufacturing signs while he was on the clock with the employer.

Doe retired in February 2007 and was replaced by John Smith ("Smith"). Smith immediately informed his staff that he intended to strictly enforce the rules. He required strict time-keeping enforcement, requiring employees in the field to sign in and out during the day. Under Doe's administration, the petitioner was soon written up for a number of time-related infractions involving unexplained periods of absence from work. The petitioner did not deny the infractions but claimed he was being singled out for reprimand while other employees engaged in similar behavior. Additional infractions involved the petitioner's filing of incomplete or falsified inspection reports resulting from complaints originating outside the department. A final disciplinary charge involved the petitioner's violation of the Middlesex County residence policy. Although the petitioner did admit that he resided outside of Middlesex County during the entire period of his employ with the department, he claimed this information was at all times well known by his supervisors. Following a disciplinary hearing where the petitioner was found guilty of all infractions, his employment with the department was terminated.

The petitioner soon filed a claim with the Division of Workers' Compensation alleging that he suffered anxiety, depression and insomnia as a result of workplace stress due to unfair treatment, retaliation and harassment by his supervisor. Following trial, the Judge of Compensation held that any stress the petitioner suffered resulted from nothing more than merited criticism by his supervisor and did not satisfy the criteria for a compensable occupational disease within the meaning of N.J.S.A. 34:15-31 and N.J.S.A. 34:15-36, as interpreted by Goyden v. State Judiciary, 256 N.J. Super. 438 (App. Div. 1991). In Goyden, the Appellate Division held that the petitioner must demonstrate the existence of objective evidence of job stress peculiar to the particular workplace which, when viewed realistically, establishes working conditions sufficiently stressful to contribute to the development of psychiatric disability. As the Goyden Court stated, "Merited criticism cannot be considered to be a condition characteristic of or peculiar to a particular trade, occupation, or place of employment, as it is common to all employment."

In affirming the Judge of Compensation's dismissal of the petitioner's claim, the Appellate Division reasoned that "[t]he gist of the Goyden decision is that the exercise of managerial prerogative in cases where an employee refuses to conform to work rules" is not a compensable condition. As the Appellate Division concluded, "[t]he fact that Petitioner may have been criticized for the way he did his job by his boss and the fact that he wasn't happy with the tougher rules and tighter discipline under Mr. Smith is not sufficient to constitute grounds under Goyden that would qualify him to receive Workers' Compensation benefits."

A judge of compensation may exercise jurisdiction over an insurance coverage dispute if ancillary to a claim currently before the Division of Workers' Compensation.
Sentinel Insurance Co. v. Earthworks Landscape Construction, Docket No. A-0748-10T1, 2011 N.J. Super. LEXIS 161 (App. Div., decided Aug. 16, 2011)

The petitioner was a proprietor and employee of the defendant, a limited liability company. In early 2008, the petitioner, acting as a representative of the employer, submitted an application for workers' compensation coverage to the plaintiff insurance carrier. Contained in the employer's original application to the insurance carrier were express representations by the petitioner that all of the employer's employees performed their work "at ground level" and that all "tree work" was subcontracted out to other companies. Based on these representations, the insurance carrier issued a workers' compensation policy to the employer for the period from March 10, 2008, through March 10, 2009.

On June 27, 2008, the petitioner was injured when he fell while pruning tree branches for a client. At the time of the accident, the petitioner was situated approximately 35 feet above the ground in a bucket-truck. This fall resulted in significant bodily injury. On August 27, 2008, the petitioner filed a claim with the Division of Workers' Compensation seeking medical treatment and temporary disability benefits. In response, the insurance carrier informed the employer in writing that it disclaimed coverage "due to a material misrepresentation made by the claimant himself as a member of the insured entity."

On September 8, 2008, the insurance carrier filed a complaint in the Law Division for a declaratory judgment against the employer and the petitioner seeking rescission of its policy and a declaration that the policy was null and void as to the petitioner's claim. On June 12, 2009, the Law Division dismissed the insurance carrier's complaint without prejudice and transferred it to the Division of Workers' Compensation for findings as to the policy's validity.

On September 16, 2010, the Judge of Compensation declined jurisdiction to void the policy as sought by the insurance carrier but, instead, recommended that the parties seek appellate review in order to resolve the jurisdictional issue. The insurance carrier appealed.

The Appellate Division reversed the Judge of Compensation's order declining jurisdiction and remanded for a determination as to the rescission issue. In doing so, the Appellate Division relied on its prior holding in Frappier v. Eastern Logistics, Inc., 400 N.J. Super. 410 (App. Div. 2008) in which the court held that the Division of Workers' Compensation can resolve coverage disputes related to an underlying claim which is appropriately before the Division. The Appellate Division reasoned that, as the New Jersey Workers' Compensation Act bestows upon the Division of Workers' Compensation exclusive jurisdiction of all claims for workers' compensation benefits, it stands to reason that it also grants the authority necessary to decide issues of coverage as pertains to those claims. In quoting Larson's Workers' Compensation Law, the Appellate Division concluded, "[W]hen ancillary to the determination of the employee's rights, the [Division of Workers' Compensation] has authority to pass upon a question relating to the insurance policy, including fraud in procurement, mistake of the parties, reformation of the policy, cancellation, existence or validity of an insurance contract, coverage of the policy at the time of injury, and construction of extent of coverage."

Pennsylvania
By Francis X. Wickersham, Esq. (610.354.8263 or fxwickersham@mdwcg.com) and G. Jay Habas, Esq. (814.461.7802 or gjhabas@mdwcg.com)

An employer must pay 100% of charges billed for acute care provided from an accredited Level I Trauma center to a claimant for immediately life threatening or urgent injuries.
Roman Catholic Dioceses of Allentown v. Bureau of Workers' Compensation, Fee Review Hearing Office (Lehigh Valley Health Network); No. 2711 C.D. 2010; filed October 28, 2011; by Judge Simpson

An elderly claimant sustained work-related injuries after he fell on an icy sidewalk and remained outside for five minutes before he was found. An ambulance responded, and the claimant was immobilized. He was transported to the hospital by the EMS unit, where it was determined that he sustained two unstable spinal fractures. The claimant was admitted as a trauma patient and placed in the intensive care unit. Two days later, he underwent spinal surgery and remained a trauma patient until his discharge.

The employer accepted the claimant's injuries. The provider billed the employer $406,338.79 for their services. The employer issued an explanation of benefits (EOB) approving payment for $142,196. Three days after receipt of the EOB, the provider filed a fee review application. The Bureau determined that the provider was entitled to the full amount of the bill. The employer appealed and requested a fee review hearing. The hearing officer determined that the claimant's condition and assessment qualified for Level 1 Trauma transport and hospital admission/treatment and concluded that the employer must pay the provider 100% of its charges in that the trauma center exemption from the Act's medical fee caps applied.

On appeal to the Commonwealth Court, the employer primarily argued that the trauma center exemption did not apply. According to the employer, the claimant did not meet any of the criteria in steps 1 -3 of the ACS Triage Guidelines and the medical evidence produced at the hearing established only that the claimant's condition was potentially and not immediately life threatening or urgent.

The Commonwealth Court rejected the employer's arguments and affirmed the decision of the hearing officer. The court pointed out that the decision by the EMS personnel that an injury is immediately life threatening or urgent, absent a violation of ASC Guidelines, is presumptive of the reasonableness and necessity for transport to a trauma center.

A self-insured employer that is required to pay heart and lung benefits in addition to workers' compensation benefits is entitled to reimbursement from the Supersedeas Fund, and two-thirds of the amount paid automatically represents workers' compensation benefits.
Bureau of Workers' Compensation v. WCAB (Excalibur Insurance Management Service); No. 376 C.D. 2011; filed November 17, 2011; by Judge Butler

The claimant sustained a work-related injury in the course and scope of his employment as a police officer. The employer filed a termination petition. The employer's request for supersedeas was denied, but, ultimately, the workers' compensation judge granted the petition. The employer then filed a petition for Supersedeas Fund reimbursement, and that petition was granted. The Appeal Board affirmed the decision of the judge.

On appeal to the Commonwealth Court, the Bureau argued that the employer was not entitled to reimbursement from the Supersedeas Fund because the claimant's compensation was paid pursuant to the Heart and Lung Act. In addition, the Bureau argued that the evidence did not support the conclusion that two-thirds of the monies paid to the claimant represented workers' compensation benefits. According to the Bureau, the proof of payment clearly showed that the amounts paid to the claimant were entirely Heart and Lung benefits, which consisted of full wages.

The Commonwealth Court rejected the Bureau's arguments and dismissed their appeal. The court pointed out that neither the Appeal Board nor the workers' compensation judge attempted to adjudicate a Heart and Lung issue. Moreover, the employer did not request Supersedeas Fund reimbursement for Heart and Lung benefits paid. The Commonwealth Court further held that, unless there was evidence to the contrary, as a matter of law, when an employer is self-insured for workers' compensation purposes and is required to pay Heart and Lung benefits in addition to workers' compensation benefits, two-thirds of the amount paid automatically represents workers' compensation benefits.

A claimant, who lost an eye when a piece of a bowling ball he hit with a sledge hammer broke off and struck him, is held to have violated a positive work order when told to stop immediately before the incident.
Charles Habib v. WCAB (John Roth Paving Pavemasters); No. 2612 C.D. 2010 (Pa. Commw. August 12, 2011); opinion by Judge Jubelirer

The claimant in this case sought specific loss benefits for the total loss of use of his right eye after a piece of a bowling ball broke off and struck him in the eye as he tried to break it apart with a sledge hammer. The event occurred while a crew attempted to kill time while waiting for delivery of a truckload of asphalt. The claimant was challenged to see if he could break apart a bowling ball found in the parking lot with a sledge hammer, but before doing so, he was warned by his foreman to "knock it off, or stop."

The workers' compensation judge determined that the claimant sustained his burden of proof in a claim petition and specifically denied the employer's defense that the claimant violated a positive work order. Although the judge found that the claimant met the elements of the defense, the decision was based on the finding that the supervisor's order was given too late to be effective. The Appeal Board reversed, holding that the foreman's order was legally sufficient because it was given immediately before the claimant struck the bowling ball with the sledge hammer. In affirming the Appeal Board's decision, the Commonwealth Court ruled that the claimant was injured in violation of a positive work order where all of the elements of the defense were met.

The Commonwealth Court denies a claim for a work-related psychiatric injury sustained by a liquor store clerk who was robbed at gunpoint on the basis that it was the result of normal working conditions.
PA Liquor Control Board v. WCAB (Kochanowicz); 760 C.D., 2010; filed September 20, 2011; by Judge Pellegrini

Recently, the Commonwealth Court issued a decision in this psychic injury case that is causing a stir in the workers' compensation community on a national level. The court held that a liquor store clerk who was robbed at gunpoint, as well as tied to a chair with duct tape, was not entitled to benefits for a psychic injury. The reason? According to the court, given the frequency of liquor store robberies and the proximity of recent incidents, the claimant, a career retail liquor store clerk, was not exposed to abnormal working conditions by virtue of the armed robbery.

In concluding that this particular claimant was not subjected to abnormal working conditions and that he did not meet the burden of proof for his claim, the court was persuaded by evidence presented by the employer that the claimant received considerable training on workplace violence. The claimant was also provided with pamphlets and educational tools on how to handle a robbery. Moreover, the employer presented evidence that since 2002, there were approximately 15 robberies per year of retail liquor stores in southeastern Pennsylvania and that four robberies occurred in close proximity to the claimant's store within weeks of the incident involving the claimant. In light of this evidence, the court concluded that robberies of liquor stores are a normal condition in today's society.

It must be pointed out that a strong dissenting opinion was authored by Judge Cohn Jubelirer. In her view, the majority of the court went too far because they focused on evidence that was largely discredited by the workers' compensation judge and because she felt that the court exceeded their role by making their own factual findings in reaching their conclusion. Judge Cohn Jubelirer pointed out that, although the claimant was provided with training on handling a robbery, one of the employer's own pamphlets specifically stated that robberies occur very infrequently. The dissenting opinion also pointed out that the workers' compensation judge did not credit the statistical evidence presented by the employer regarding the frequency of liquor store robberies. In short, Judge Cohn Jubelirer and the judges that joined in the dissent (Judges McGinley and Butler) countered that the majority of the court appeared to be equating "forseeability" with "normalcy." In other words, nearly anything is foreseeable, and just because events like robberies occur, that does not make those events "normal."

The court's opinion is one that undoubtedly has the potential to shock the conscience of many in the workers' compensation community. Considering the profile of this case, and considering the disagreement of the judges on the panel, it is anticipated that the Supreme Court of Pennsylvania will be heard from on this groundbreaking and controversial decision.

An employer who refuses to pay bills for medical treatment causally related to the work injury, without explanation and without requesting utilization review, is subject to penalties to be imposed at the discretion of the workers' compensation judge.
CVA, Inc. and State Workers Insurance Fund v. WCAB (Riley); 2658 C.D. 2010; filed October 14, 2011; by Judge Leavitt

The claimant filed a penalty petition alleging the employer violated the Act by failing to pay for numerous Therapeutic Magnetic Resonance (TMR) treatments, from May 2008 through June 2009. The petition was assigned to a workers' compensation judge, who held one hearing and told the parties they had three months to submit their evidence and briefs. The claimant submitted HCFA billing statements sent to the employer, along with medical reports documenting his condition and response to the treatments. Also offered by the claimant were denial letters from the employer. The employer objected to the documents as hearsay, but the workers' compensation judge overruled the objection. The employer presented no evidence in defense of the penalty petition and did not submit a brief.

The workers' compensation judge granted the penalty petition, finding the employer had refused to pay some bills without explanation. The total outstanding balance of unpaid medical bills was $140,876, and the workers' compensation judge assessed a 50% penalty. The judge's decision was affirmed by the Appeal Board.

On appeal, the Commonwealth Court rejected the employer's argument that the penalty petition should have been denied because the claimant's documentary evidence was legally insufficient to prove a violation of the Act. The court cited numerous cases supporting the submission of medical bills and reports where litigation involves medical expenses, making medical reports admissible regardless of the length of disability. The court also rejected the employer's argument that the claimant failed to prove the TMR treatment was reasonable and necessary, or reasonable in cost, and that the claimant failed to prove that the treatment was related to the injury because the claimant did not present medical evidence that the treatment was "generally accepted in the medical community." The court pointed out that the injury was to the claimant's left knee and that the treatment was for the left knee injury. The court also pointed out that the employer did not submit the bills for utilization review. The court also rejected the employer's argument that they were denied due process rights by the workers' compensation judge and that the 50% penalty was excessive. The employer did not meet the deadline for presenting evidence given by the judge, and the judge was empowered to assess a penalty of up to 50% for violations involving "unreasonable or excessive delays."

An IRE that finds no objective evidence of an accepted work injury on the date of the examination may validly assign a zero impairment rating for that condition.
Westmoreland Regional Hospital v. WCAB (Pickford); No. 1188 C.D. 2009 (Pa. Cmwlth.); decided September 23, 2011; Judge Leavitt

The claimant sustained a work injury which included judicially determined conditions of reflex sympathetic dystrophy (RSD) and brachial plexus stretch. The employer obtained an IRE to determine the degree of whole body impairment under Section 306(a.2) of the Act. The IRE physician found no objective evidence of either the RSD or the brachial plexus injury, even though he acknowledged these to be work-related conditions. The AMA Guides to the Evaluation of Permanent Impairment require objective evidence of a condition and that the condition exhibit a sensory or motor impairment. The employer petitioned to modify benefits based upon the 22% IRE evaluation, which included 0% for the RSD and brachial plexus stretch. The workers' compensation judge denied the petition because it did not include a rating for the two acknowledged injuries and also because the treating physician found the claimant to exhibit objective evidence of RSD five months after the IRE.

After the Appeal Board affirmed, the Commonwealth Court reversed. The court first found that an IRE physician does not have to assign an impairment rating greater than 0% in the absence of objective evidence of the condition on the date of the IRE evaluation. In so holding, the court noted that both the Act and the AMA Guides require that the impairment must be based on the claimant's condition on the date of the IRE and that it is not a survey of the claimant's injuries over a period of time. Unlike a finding of full recovery, which may be challenged on the basis of medical evidence showing the claimant's disability from work over time, an IRE is limited to impairment on the date of the exam. In this case, the claimant's physician had examined the claimant the day before the IRE and confirmed there was no objective evidence of RSD, but stated that the condition waxes and wanes, and found such evidence months later.

The Supreme Court holds that a medical opinion based upon unsubstantiated assumptions or a proper factual foundation is insufficient to overcome the presumption of occupational disease causation.
City of Philadelphia v. WCAB (Kriebel); No. 49 EAP 2010 (Pa. Supreme Court); filed October 19, 2011; Madame Justice Orie Melvin

The claimant, a firefighter, died from liver disease caused by Hepatitis C. The decedent's widow filed a fatal claim petition alleging that he died from Hepatitis C contracted in the course of his employment, a result of exposure to the blood of victims whom he attended. The decedent's widow offered supporting medical evidence. The defense countered with a medical opinion that the decedent's hepatitis was acquired from intravenous drug use and relied upon a note in the decedent's military records of more than 30 years ago indicating he had Hepatitis B from drug usage. The employer's medical expert opined that Hepatitis B and C are transmitted commonly through needle-related drug use and concluded that the decedent contracted Hepatitis C in that manner. The workers' compensation judge accepted this evidence and ruled against the widow.

After the Appeal Board reversed and the Commonwealth Court upheld the workers' compensation judge, the Supreme Court addressed the issue of whether the employer's medical evidence was competent to overcome the rebuttable presumption under the Occupational Disease Act that the Hepatitis C was from the decedent's employment. The Court held the medical opinion was not competent because it was based upon a series of assumptions that lacked a factual basis, primarily the lone notation in the decedent's medical record indicating Hepatitis B from drug use, where there was no evidence in the subsequent 30 years of any intravenous drug use or the link to Hepatitis C.

The claimant failed to prove that the decedent died in the course and scope of his employment - he was found dead in his home office - since there was insufficient evidence as to how, when and what the decedent was doing at the time he sustained the injury that led to his death.
Donald Warner v. WCAB (Greenleaf Service Corp.), 25 C.D. 2011 (September 1, 2011), opinion by Judge Brobson

The decedent, an international sales manager who worked out of his house or at the employer's facility when not traveling, was found dead in his home office by his wife. The evidence established that the decedent had communicated work-related e-mails and phone calls that morning while working from home due to a non-work injury that prevented him from making a sales trip. The employer provided the decedent with a computer, phone and other home office equipment and reimbursed him for home office-related expenses. The evidence indicated that the decedent died from blunt force head trauma, and blood was found on the stairs outside the front door of the house and in a bathroom, but there was no evidence as to how, when and where the decedent was injured and, more particularly, what he was doing at the time.

The Commonwealth Court affirmed the decisions of the Workers' Compensation Judge and the Appeal Board denying the fatal claim petition on the basis that the claimant failed to establish through competent evidence that the decedent died in the course and scope of his employment. The claimant tried to establish a claim under the "personal comfort" doctrine, which provides that when an employee sustains an injury during an inconsequential or innocent departure from work during regular work hours, it is nonetheless considered to have been sustained in furtherance of the employer's business. The court rejected this argument because the record was unclear as to the circumstances of the decedent's death. While the claimant contended that the circumstances suggested the decedent slipped and hit his head while outside smoking a cigarette, the court held that this was speculative at best.

An employer can pursue termination, suspension or modification of benefits as of a date prior to the issuance of a Notice of Compensation Payable.
City of Philadelphia v. WCAB (Butler), 1245 C.D. 2009 (July 26, 2011), opinion by Judge Leavitt

The issue on appeal to the Commonwealth Court in this case was whether benefits can be terminated or suspended as of a date before a Notice of Compensation Payable is issued. The claimant was injured in a car accident on September 28, 1995, while working as a probation officer. He received treatment from a panel physician who determined that as of October 19, 1995, the claimant was fully recovered and capable of returning to his pre-injury job. However, because the claimant still complained of pain, the physician referred him for a second medical opinion. The second doctor agreed that the claimant was fully recovered. Thereafter, on November 7, 1995, the employer issued a Notice of Compensation Payable, noting the work injury and compensation rate, and stating that the claimant received salary in lieu of workers' compensation.

The employer then filed a petition asserting the claimant was fully recovered as of October 20, 1995, or alternatively, seeking suspension of benefits. The Workers' Compensation Judge granted the termination petition and dismissed the suspension petition as moot. After an appeal to the Appeal Board, a remand to the Workers' Compensation Judge and being affirmed by the Appeal Board, the Commonwealth Court first held that the employer was required to prove that the claimant's work-related disability had resolved sometime after the date the Notice of Compensation Payable was issued, based upon the decision in Beissel v. WCAB (John Wanamaker, Inc.), 465 A.2d 969 (Pa. 1983). The case was remanded to the Workers' Compensation Judge to rule on the suspension petition, but came back to the Commonwealth Court after the Judge suspended the claimant's benefits as of a date after the Notice of Compensation Payable. The court, on its second consideration of the issue, held that the employer's only burden in a termination petition is to prove that the claimant had fully recovered from the work injury described in the Notice of Compensation Payable, where the Notice did not state that the claimant remained disabled.

The claimant had argued that the statement from the decision in Beissel, that there must be a change in the claimant's condition "after the date of the ... notice of compensation payable," precluded the termination of benefits on a date before the Notice of Compensation Payable. The court in City of Philadelphia found that this statement was taken out of context and that the principle in Beissel is only that an employer is bound by the contents of its own Notice of Compensation Payable and cannot seek to repudiate it after accepting liability. In this case, the employer did not seek to disavow the Notice; it sought to prove that the claimant had fully recovered from the injury on the Notice.

A heart attack suffered at home after receipt of a letter terminating employment held not to be within the scope of employment.
Little v. WCAB (B&L Ford/Chevrolet); No. 1857 C.D. 2010 (July 28, 2011); opinion by Judge Brobson

The Commonwealth Court upheld the denial of a fatal claim petition, finding that the claimant failed to meet her burden of proving that her husband died in the course and scope of his employment or while furthering the employer's business when he suffered a fatal heart attack two days after receiving a letter terminating his employment.

The decedent in Little had sustained a work-related shoulder injury and was assigned to light-duty work for a time before being directed to return to his regular job. The decedent was later sent home from work after the employer received a letter from his attorney indicating that he could not perform any manual labor. The letter requested that the decedent provide a doctor's report advising what type of work he was capable of performing. The decedent obtained a note from his doctor, but before he could provide it to the employer, he was told he did not need bring it. The employer then issued a letter of termination. Upon receipt of the letter, the decedent became distraught and was unable to eat or sleep. With the letter of termination in his hand, he collapsed and died.

On appeal, the court identified that this case presented the question of whether the law intended employers to bear the risk of a compensable injury that may follow the termination of employment and is a consequence of that decision, even when it bears no relationship to employment responsibilities and occurs after the employment relationship ends. In finding that the claim was not compensable, the court in Little noted that when an injury occurs off-premises, the relationship to the employment must be clear. This case is distinguished from those where the claimant's on-the-job stress and exertion caused injury while still employed is compensable. In Little, there was an absence of any evidence that stress at the work place was a contributing factor in the decedent's heart attack.