Thought Leadership

This case involves multiple intertwined rounds of litigation. The claimant was a firefighter who sustained injuries in May 2004, when he fell in a stairwell while pulling down a ceiling in a burning building. The employer issued a Notice of Compensation Payable (NCP) for a left shoulder rotator cuff tear and aggravation of degenerative disc disease in the low back. 

In 2008, the employer filed a petition to suspend benefits as of September 16, 2008, alleging the claimant had retired and voluntarily removed himself from the workforce. The petition was granted by the workers’ compensation judge, but the Appeal Board reversed on appeal, concluding that evidence showed the employer had fired the claimant. 

The Commonwealth Court affirmed, and the employer filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. That court had just decided the case of City of Pittsburgh v. WCAB (Robinson II), 67 A.3d 1194 (Pa. 2013), which established a new framework for voluntary withdrawal from the workforce cases. Based on that decision, the case was ultimately remanded to the workers’ compensation judge to make findings regarding the claimant’s separation from the workforce. This time, the judge dismissed the suspension petition, and the Board affirmed, as did the Commonwealth Court.

Meanwhile, in 2010, the employer filed another suspension petition, alleging the claimant had been self-employed as a handyman since his injury. The claimant also filed a review petition, alleging an incorrect description of injury and seeking to add the neck from a 2009 motor vehicle accident that caused “increased” neck problems and increased back problems, leading to low back surgery. 

In litigation before the judge, the employer offered forms LIBC-750 and 760 completed by the claimant. LIBC forms from January 2011 reflected earnings from May to December 2009, but forms thereafter were inconsistent as to earnings during this period. Although the claimant testified that he did not work after December 2009, financial records introduced by the employer suggested otherwise, and the judge suspended the claimant’s benefits as of June 2009. According to the judge, a suspension of benefits was fully justified as the claimant was not credible as to providing information regarding his self-employment, as directed by the judge. The judge also dismissed the claimant’s review petition, finding the evidence insufficient and noting that a report from low back surgery performed in March of 2011 did not address causation. The decision was affirmed on appeal to the Appeal Board and the Commonwealth Court.

Then, in 2016, the claimant filed a reinstatement petition, alleging a worsening of his condition as of March 17, 2011, the date he underwent low back surgery. At a hearing before the judge in connection with this petition, the claimant gave employer’s counsel a completed LIBC-760 form dated June 22, 2018, indicating that he was not currently employed or self-employed and had been self-employed from May 1, 2009, to December 1, 2009. The judge denied claimant’s reinstatement petition on the basis that it had already been addressed by the judge in the prior decision and was, therefore, barred by res judicata and/or collateral estoppel. However, the judge also found that the claimant met the requirement of reporting information, via the LIBC-760 form presented to employer’s counsel at the hearing, as of November 20, 2018. The Board affirmed the decision on appeal. However, it remanded the case to the judge for findings as to whether benefits should be reinstated as of November 20, 2018, based on the claimant’s production of the LIBC-760 form on that date. On remand, the judge ordered the reinstatement. The Board affirmed on appeal. 

The Commonwealth Court affirmed the Board relative to the claimant’s request for reinstatement of benefits as of March 17, 2011, agreeing that res judicata barred his claim. According to the court, the claimant was well aware of the worsening of his low back injury during the prior proceeding and, therefore, should have litigated it during that time. However, the court reversed the Board’s decision reinstating the claimant’s benefits on the date that the LIBC-760 form was returned. The court noted that in the most recent round of litigation, the claimant never asserted that his benefits should be reinstated because he returned the LIBC form, and he never argued that the return of the form cured the suspension. According to the court, in the prior case, the judge found that a suspension of benefits was justified because he did not think the claimant was telling the truth about his earnings during the relevant period, and the return of the form nine years later, with the same information previously rejected by the judge, did not cure anything. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 8, August 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}