Audrey L. Copeland

We convinced the Commonwealth Court to affirm the decision of the Workers’ Compensation Appeal Board in favor of our client, the employer, which upheld the workers’ compensation judge’s denial of a claim petition. By memorandum opinion, the court found that the judge’s credibility findings were neither contradictory nor arbitrary and capricious, and the decision was reasoned. The court agreed with the employer that the defense experts’ opinions constituted substantial evidence, also noting that the Social Security Administration’s findings of disability were irrelevant to the issue of work-relatedness. The court concluded that the claimant failed to sustain her burden of proving a work-related injury, and since the causal connection between her “lingering symptoms and her work duties” was not obvious, she was required to present unequivocal medical evidence establishing that connection, which she failed to do.

We successfully represented an insurance company before the Commonwealth Court of Pennsylvania. The court agreed with our argument that the claimant needed to provide notice of his work-related injury to the defendant insurance company within 120 days of the occurrence of the injury due to his combined status as sole proprietor/owner and also the employee in this matter. The judges distinguished the facts of the case due to the fact that the claimant was a sole proprietor, owner and the only employee of his own business. The court agreed that allowing the claimant to pursue a claim, by claiming that he provided notice to himself immediately when the accident occurred, but did not bother to report the injury to the insurance company for over a year thereafter, would result in an absurdity and put the insurance company at a disadvantage in the investigation of the claim. The court also noted that the definition of “employer” in certain portions of the Act includes not only the actual employer as a business itself, but also the employer’s duly authorized agent or its insurer, if such insurer has assumed the employer’s liability. Since the claimant failed to provide notice to the insurance company within 120 days of his injury, the court held that the Claim Petition was barred. The Claim Petition was dismissed, and the claimant was not entitled to any benefits at all.

In our successful appeal to the Commonwealth Court, the workers’ compensation judge had awarded a closed period of benefits and then terminated all benefits, despite the employer’s late answer. The judge found that the description of injury was not well-pled and, therefore, not deemed admitted. The Appeal Board reversed the judge on the full termination of benefits, saying that, since our IME physician did not acknowledge a work-related psychiatric injury, his testimony was in conflict with the admitted injury due to the late answer. They reversed the judge and ordered reinstatement of temporary total disability benefits. The Commonwealth Court found in our favor and reversed. The court held that the judge was correct that the injury was not well-pled and that we were not deemed to have admitted a psychiatric injury. Therefore, they reinstated the judge’s decision which terminated benefits.

The Pennsylvania Commonwealth Court ruled in favor of our employer client, holding that it was error to “erase” the 500-week employer credit provided by Act 111 for partial disability benefits paid beginning in 2008, and that the claimant’s 2019 reinstatement to total disability status did not retroactively convert those prior partial disability benefits into total disability benefits.  The claimant’s work injury, a contusion to the low back, occurred in 2006. Based on the results of a 2008 IRE that assigned a zero percent impairment rating, the claimant’s benefits were modified from total to partial. The employer filed a Notice of Change of Workers’ Compensation Disability Status, which was not challenged by the claimant. Following the Supreme Court’s decision in Protz, however, the claimant filed a modification petition in 2018, seeking reinstatement of his total disability benefits. The petition was granted, and it was noted at the time that the claimant had not exhausted his 500 weeks of partial disability.  The employer filed a petition for modification, based on the results of a December 2019 IRE performed on the claimant, that was granted by the Workers’ Compensation Judge. The IRE was performed pursuant to Act 111. The parties cross-appealed, and the claimant took the position that Act 111 cannot be applied retroactively to injuries sustained prior to Act 111’s October 24, 2018, effective date and that Act 111 constituted an unlawful delegation of legislative authority. The employer cross-appealed the judge’s failure to award a 500-week credit and to suspend the claimant’s benefits.  Citing prior cases that consistently held that Act 111 applies retroactively with respect to a calculation of a claimant’s weeks of partial disability paid prior to the effective date of the Act, the claimant’s appeal was dismissed.  The employer prevailed on its cross-appeal and the Appeal Board’s order was reversed to the extent that it denied a credit for the previously paid weeks of partial disability.   

We successfully appealed a summary judgment in favor of an insurance client that had been sued by another insurance carrier for more than $1.6 million in damages arising out of a fire loss to an insured auto repair facility. The opposing insurance company had paid $1.6 million in damages and intended to pursue a product liability claim against a vehicle manufacturer, alleging a defectively manufactured vehicle had caused the fire. Our client insured the vehicle that was allegedly defective. After the insurance companies conducted a preliminary expert evaluation, the vehicle was destroyed by a salvage yard in the normal course of business. A claim was made against our client for promissory estoppel where it was alleged the vehicle was destroyed despite a promise to preserve. The Pennsylvania Superior Court affirmed the Court of Common Pleas of Erie County’s rejection of the claims against our client and agreed with our contention that the promissory estoppel claim was a disguised claim for negligent spoliation, which the Supreme Court of Pennsylvania does not recognize. 

We convinced the Commonwealth Court to affirm a workers’ compensation judge’s decision. The judge had denied the claimant’s petition to review a Utilization Review (UR) determination and rejected the claimant’s argument that the judge was barred from ruling on UR petitions by the rules of collateral estoppel and issue preclusion.

We persuaded the Pennsylvania Supreme Court to deny a claimant’s petition for allowance of appeal. In this workers’ compensation matter, the claimant challenged the constitutionality of Act 111 and its Impairment Rating Evaluation (IRE) provisions.

Our attorneys prevailed on an appeal to the Third Circuit, which affirmed the district court’s rejection of the plaintiffs’ request for class certification in a product liability and warranty action. The named plaintiffs are several property owners and communities of common ownership who allege they have yellow-jacketed, corrugated stainless steel tubing (CSST) transporting natural gas through their structures. The flexible, yellow CSST is the modern heir to the black iron pipe formerly universal in the building industry. The flexible CSST offers advantages, including ease of installation, but the plaintiffs asserted there are latent product defects that risk failure in the event an electrical surge makes its way to the tubing, either from an in-house event or nearby lightning strike. The district court denied the plaintiffs’ request for nationwide and Pennsylvania-wide class certification of their disparate claims because of a failure of record proof on the elements of ascertainability of a sufficiently numerous class, predominance of typical and common claims, and an inability to demonstrate proof of liability and damages issues on a class-wide basis. The Third Circuit granted the plaintiffs’ request for interlocutory review of the class certification decision, but nevertheless affirmed the district court’s ruling on largely the same bases. Without passing on the merits of the product defect claims, the Third Circuit recognized that there was no basis to grant class-wide treatment given the differences in everything from notification to putative class members, liability and damages proofs, and the law governing claims. The denial of class certification was affirmed, and the case will proceed on an individual basis only.

The Pennsylvania Supreme Court denied a newspaper delivery person’s petition for allowance of appeal on March 30, 2021. The claimant filed a claim petition in 2018, alleging that he suffered serious injuries to his right leg after slipping and falling on ice when he was delivering newspapers. The newspaper asserted that the claimant was an independent contractor. The case was bifurcated to determine whether the claimant was an employee. After fully litigating the issue, the Workers’ Compensation Judge found in favor of the newspaper and found that the case was not so different than the seminal case of Johnson v. WCAB (DuBois Courier Express), 631 A.2d 693 (Pa. Cmwlth. 1993). The Johnson court held that a newspaper carrier was an independent contractor because the newspaper did not exercise substantial control over his activities. The claimant appealed to the Workers’ Compensation Appeal Board. After hearing argument and reviewing the parties’ briefs, the Board affirmed the judge’s decision and order. The claimant appealed to the Commonwealth Court, urging the court to consider the evolving nature of the newspaper delivery business in rendering its decision. The court refused to do so and highlighted the lack of control by the newspaper because there was no prohibition on delivering competing newspapers or enlisting a substitute without prior notice or permission. The Commonwealth Court’s decision, which was issued as a non-precedential opinion, is the latest in an unbroken line of similar cases holding that newspaper carriers are independent contractors.  The claimant’s suit ended when the Pennsylvania Supreme Court denied the petition for allowance of appeal.

We initially successfully defended a bifurcated claim petition filed by the claimant, an independent contractor. Opposing counsel appealed, and the Workers’ Compensation Appeal Board reversed and remanded the decision for evidence on the medical component of the claim. However, contrary to the defendant’s argument, on remand, the judge granted the claim petition, finding she was “constrained” to reaffirm the Board on the independent contractor issue. The defendant once again appealed, and the Board re-affirmed the claim petition. We took the case up on appeal, and the Commonwealth Court agreed that the record did not demonstrate a “high level of control” such that an employment relationship has been established. Accordingly, the court reversed the order affirming the claim petition.