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It can be difficult to predict the outcome of appeals where the issue before the Judge of Compensation is credibility of witnesses as opposed to pure legal issues.  InFrank Hodson v. C. Abbonizio Contractors, Inc., A-2083-14T3 (App. Div. May 2, 2016), Mr. Hodson said that while working as a laborer on May 9 and May 10, 2013, he threw a traffic barrel and “felt a small click-like pop in his back.”  He finished his shift and did not notify his supervisor, Dan Trainer, of the injury because he was distracted when he was informed that a “crash truck” was hit by a vehicle, requiring him to respond immediately. 

Hodson said he was sore while driving home that night and was in a lot of pain.  But he continued to work the next week.  Not until May 26, 2013 did he admit to notifying his employer.  He said his co-worker, Ray Batot, saw him limping on May 26, 2013 and asked him what was wrong.  Hodson said that he injured his back.  Hodson also said that he spoke with Tom Abbonizio and Trainer on May 26, 2013, informing them of his back injury.  Hodson saw a personal physician who provided him with two epidural injections after the accident.  He also was taking 10 milligrams of Percocet.

When his doctor took him out of work, Hodson called Human Resources and was informed that he could not collect workers’ compensation benefits because no incident report was filed.  Hodson was told to seek unemployment benefits.  He filed for those benefits through his family doctor, who certified that his injury was not work related.  Later petitioner filed a claim petition against Abbonizio and against his previous employer for a 2012 injury to his back and legs.

There were some inconsistencies that were brought up in trial.  Hodson admitted having Trainer’s cell phone number but said he did not call him because of the crash truck incident that was more pressing.  He also said he did not know that there were two hospitals he was permitted to go to in the event of a work injury, but he admitted that his co-worker Batot had been taken to one of those two hospitals on May 10, 2013 for Batot’s own work injury involving the crash truck.

Perhaps the most glaring discrepancy concerned prescription medications.  On direct examination, petitioner denied taking any prescription medications before the date of the alleged injury.  On cross examination he conceded that he was taking Lyrica for pain as of May 10, 2013, and he was also taking Percocet before May 10, 2013.  He had had prior back injuries and prior workers’ compensation claims.  Hodson then maintained that heincreased his medications after May 10, 2013.

Petitioner contended that he told his family doctor, who treated him after the alleged incident on May 9 or May 10, 2013 that he injured his back throwing barrels.   However, Dr. Winfield put on the TDB application that his injury was not work related.  There is no indication in the record of this case that Dr. Winfield testified at trial.

Petitioner offered corroborating testimony from his co-worker, Batot, who said he was working with petitioner and saw him moving barrels on the day petitioner claimed to have hurt himself.  Batot also said he spoke with Tom Abbonizio about petitioner’s back issue.  Batot said he was injured on the same night as petitioner (Batot was driving the crash truck) but that earlier in the day he saw petitioner limping. 

Two other lay witnesses testified at trial.  Ms. Carmen Ferrillo, HR Manager, said that petitioner told her the injury took place on May 14, 2013 (not May 10^th).  She spoke with Trainer and was told petitioner never mentioned a work injury.  She denied telling petitioner to file for unemployment benefits.  For his part, Trainer said that he did not see petitioner move any barrels on May 10, 2013.  He said petitioner never informed him of a work injury. 

One medical witness testified, Dr. Joseph Zerbo.  He said he saw petitioner on July 23, 2014.  Dr. Zerbo compared prior MRI films from 2011 with those of June 2013.  He said that there was a “worsening of the disease process” which the doctor attributed to the alleged work injury. 

The Judge of Compensation, the Hon. Audrey Kernan, ruled for petitioner, requiring the payment of medical and temporary disability benefits, based primarily on her assessment of petitioner and Batot as being more credible than the other witnesses in this case.  She also credited the testimony of Dr. Zerbo. The Appellate Division affirmed on the basis that there was sufficient evidence to support the credibility findings of the Judge of Compensation.  While there was a potential dispute in this case between prior employers for previous back injuries and Abbonizio Contractors, the court left that issue for the future when the permanency issue should be reached. 

The case demonstrates the difficulty respondents have when there is really no legal or medical issue in the case and the dispute centers on conflicting testimony of various witnesses. Based on this record, a judge of compensation could have made a convincing argument that the claim was not work related and never happened at all.   There was a plethora of inconsistencies and perhaps outright misrepresentations (such as not using pain medications before the accident) which would have formed a solid basis for denial.  But there was also strong testimony from a co-worker supporting the petitioner.

The lesson in cases like this is that the Judge of Compensation controls on credibility findings.  Appellate courts will not reverse unless there is insufficient evidence to support the decision of the Judge.  That is a high standard for either party to overcome on appeal.   

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

                                                                     THE PA COMMONWEALTH COURT

DENIES COMPENSATION FOR PARKING LOT INJURY

By

Kevin L. Connors, Esquire

Inconceivable!

Interesting facts produce interesting law!

This was the case in Quality Bicycle Products, Inc. v. WCAB, decided by the Pennsylvania Commonwealth Court on April 25, 2016.

Quality Bicycle involved a course and scope of employment case, with Claimant originally being awarded workers’ compensation benefits by the Workers’ Compensation Judge, the award being affirmed by the Appeal Board, and the award then being overturned and reversed by the Commonwealth Court, which held that the Claimant’s injury, on the employer’s premises, did not occur within the course and scope of employment, as it was not caused by “a condition on the premises”.

Back to our interesting facts.

In Quality Bicycle, the Claimant was working in his employer’s warehouse when he was paged over the intercom that he had a telephone call from his fiancé, who was hysterical that their 9 year old daughter was missing from school.

The Claimant immediately told his manager that he had to leave work, for a family emergency.  Attempting to clock out, Claimant’s manager told him that he would clock out for him, and the Claimant immediately left the building.

As the Claimant was hurrying to his car, only about 10 or 12 feet into the parking lot, he felt a pop in his knee, and fell to the ground, unable to bear weight on his leg.

Ambulanced to the hospital, the Claimant eventually required surgery on his injured knee.

In support of his Claim Petition, Claimant testified that he was injured in the parking lot where he always parked for work, that all of his co-workers also parked in that parking lot, and that his employer had told him to park there for work.

However, the Claimant also testified, presumably on cross-examination, that there was no condition or abnormality of the parking lot that caused him to fall, as his knee simply gave out.

Awarding benefits to the Claimant, the Workers’ Compensation Judge accepted the Claimant’s testimony as being both credible and persuasive, including that the Claimant was injured on the employer’s premises in the course and scope of his employment.

Affirmed by the Appeal Board, probably through a statistical anomaly, the employer’s appeal to the Commonwealth Court argued that the Claimant’s injury was not in the course and scope of employment as the Claimant should have been required to prove, since he was not furthering the business or affairs of the employer when injured, each of the three following elements:

·         The injury must have occurred on the employer’s premises;

·         The employee’s presence on the employer’s premises was required by the nature of his employment; and,

·         The Claimant’s injury was caused by the condition of the premises, or by operation of the employer’s business, citing to Section 301(c)(1) of the Act and the Commonwealth Court’s 1991 Decision inMarkle v. WCAB, 785 A.2d 151, 153 (Pa. Cmwlth. 2001).

In reversing the Claimant’s award of compensation, the Commonwealth Court held that the Claimant was unable to prove that his knee injury was caused by a condition on the premises, such that the Claimant was not able to satisfy the requirements of Section 301(c)(1).

Reversing the Claimant’s award of compensation benefits, the Commonwealth Court reviewed several course and scope of employment decisions in which it had concluded that the Claimants’ injuries were not caused by conditions on the employer’s premises, to include:

·         Markle, involved the Claimant being injured while climbing over the center console in the front seat of her car, because the employer’s parking lot was snow-covered and the truck parked next to the Claimant was too close to allow her to open her driver’s side door, with the Court holding that the Claimant’s injury was caused by the Claimant’s act of climbing over the console, and not by any condition on the employer’s premises, to include either the accumulated snow, or the car parked next to the Claimant’s car;

·         Dana Corporation (548 A.2d 669), involving the Claimant being injured in the employer’s parking lot when a co-worker’s car moved backward as the Claimant was attempting to help push the car forward, with the Court determining that the Claimant’s injury was caused by the movement of the car, and not by the condition of the premises;

·         Anzese (385 A.2d 625), involving the Claimant being killed when he was struck by lightning in the employer’s parking lot, with the court holding that “death from lightning was in no way related to the condition of the premises …”

For argument sake, the Court also reviewed several decisions in which it had found that the Claimant’s injury, while not furthering the employer’s business or affairs, were caused by conditions on the premises, including:

·         WCAB v. United States Steel (376 A.2d 271), in which it was concluded that the employee’s injury was caused by a condition on the premises, when the employee, while driving to work in the employer’s parking lot, suffered a seizure and crashed into a concrete abutment, concluding that the abutment was a condition on the employer’s premises that contributed to the employee’s death;

·         Newhouse (530 A.2d 545), involving the employee being injured when thrown from the hood of a co-worker’s car on an access road on the employer’s premises, when the co-worker made an unexpected turn on the access road due to a closed exit gate, concluding that the closed exit gate and a bend in the road were conditions on the employer’s premises contributing to the employee’s injury.  

Since the Claimant did not allege, in Quality Bicycle, that the parking lot caused or contributed to his injuries, admitting that no physical condition of the parking lot caused his injury, the Commonwealth Court held that the Claimant had failed to prove any connection between his injury and any condition on the employer’s premises, resulting in the reversal of the Claimant’s compensation benefit award.

This appears to be a very straightforward decision predicated on the Claimant’s own testimony that his injury simply occurred, for no apparent reason, there being testimony from the Claimant himself that he was not injured because of somethingin or on the parking lot.

Keep in mind that this holding is also predicated on the Claimant’s injury occurring when the Claimant was not doing anything that could be construed to prove that the Claimant was furthering the business or affairs of the employer, as the Claimant was regrettably injured when responding to a family emergency.

Again, interesting facts make interesting law.

ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

 We are pleased to announce that our Blawg was named a Best Blog for 2016!  A complete list of the winners and the criteria used in the selection process can be found at http://www.workerscompensation.com/workers_comp_best_blogs.php.  We wish to thank the judges for their time and consideration as well as our readers who took time out of their day to submit nominations on our behalf. 

On April 29, 2016, the Alabama Court of Civil Appeals released its opinion in Leesburg Yarn Mills, Inc v. Thomas Hood.  In Hood, the trial judge found the claimed stenosing tenosynovitis (also known as “trigger finger”) to be compensable.  The employer had denied the claim presumably based on the opinion of the authorized treating physician.  The employee then proceeded to treat with his own physician, Dr. Glenn Wilson, and subsequently filed a Complaint for workers’ compensation benefits.  In finding in favor of the employee, the trial judge retained jurisdiction to later determine the extent of disability.  The employer appealed the decision. 

On appeal, the employer asserted that the employee failed to meet his burden of proving both legal and medical causation by clear and convincing evidence.  The employer argued that, in order for the employee to prove legal causation, it was necessary for him to establish that the repetitive nature of his job exposed him to his injury materially in excess of the risk to which people are exposed to in their everyday lives. 

In affirming the trial judge’s decision, the Court of Civil Appeals noted that the employee had worked for the employer for twenty-three years.  According to the employee, he was regularly exposed to repetitive pinching and grasping motions with his hands, multiple times per day.  He also testified that he regularly moved 306 lb cans, three or four times per day, on wheels that were in poor condition.

The Court also addressed medical causation.  At his deposition, Dr. Wilson testified that the employee’s exposure to job related overuse could be the cause of the trigger finger.  Although the employer offered the testimony of Dr. Howard Miller, who stated that the employee’s condition was age related, he was not able to rule out the possibility that the job activities were a contributing cause. 

Despite Dr. Wilson’s less than certain opinion as to medical causation, the Court of Civil Appeals affirmed the judgment because, considering the medical opinion along with the employee’s opinion and other evidence, the trial judge could reasonably have been clearly convinced that the employee met his burden of proof.

________________

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The CCH landscape is changing at a fairly rapid rate these days. The retirement of David Wagner
(Abilene), Carolyn Moore (Lubbock) and Cheryl Dean (Ft. Worth) ushers in a whole new crop of
judges. In Houston there are three new faces, Robin Burgess, Early Moye, and Francisca Okonkwo.
In Dallas/Fort Worth, DWC hired Amanda Barlow. Out West, Travis Dupree (Midland) and Teresa
Boone (Lubbock)joined the Hearings team. Finally, two traveling Hearing Officers, Mayson
Pearson and Dee Marlo Chico, will be filling in where needed. These changes should keep us on
our toes for several months to come.

The CCH landscape is changing at a fairly rapid rate these days. The retirement of David Wagner
(Abilene), Carolyn Moore (Lubbock) and Cheryl Dean (Ft. Worth) ushers in a whole new crop of
judges. In Houston there are three new faces, Robin Burgess, Early Moye, and Francisca Okonkwo.
In Dallas/Fort Worth, DWC hired Amanda Barlow. Out West, Travis Dupree (Midland) and Teresa
Boone (Lubbock)joined the Hearings team. Finally, two traveling Hearing Officers, Mayson
Pearson and Dee Marlo Chico, will be filling in where needed. These changes should keep us on
our toes for several months to come.

Three Appeals Panel cases of interest in the past couple of months include:
APD 160228 (decided 3/24/16) - the hearing officer erred in appointing a new designated doctor
after a CCH. The Appeals Panel noted the Rule 127.5(d) provision that a previously assigned
designated doctor is on the claim unless and until the DWC authorizes or requires the doctor to stop
providing services on a claim. The rules set out the reasons the DWC can authorize or require a
doctor to get off a claim, none of which applied in this case. The Appeals Panel looked at the DRIS
notes that the self-insured introduced during the CCH, and determined that those notes did not reveal
any exception to the requirement that the initially appointed designated doctor should remain on the
claim. The hearing officer appointed the second designated doctor because he exercised his
discretion in appointing a new designated doctor because he was concerned that the initial doctor
might “take umbrage in being instructed that his opinion of extent was rejected.” The Appeals panel
held that the hearing officer’s reason for appointing a new doctor was not one of those set out in the
rules and reversed the decision that the second designated doctor was properly appointed and held
that the doctor was not properly appointed.
APD 160074 (decided 3/21/16) - the hearing officer erred in admitting testimony of a doctor whose
identity was not timely exchanged and the decision on extent of injury, disability, MMI and IR was
reversed and remanded for the hearing officer to make a decision without consideration of that
doctor’s evidence. The Appeals Panel determined that the doctor’s name was received by the
claimant after the normal business hours (10:00 p.m.) on the 15th day following the BRC, it was not
timely exchanged (because it must be exchanged within 15 days of the BRC) and the hearing officer
did not discuss the reasons for the late exchange or make a determination of good cause to allow
the testimony despite the lack of timely exchange. The Appeals Panel excluded that doctor’s
testimony completely. The decision is silent on whether there was a report from that doctor in
evidence.
APD 160057 (decided 3/10/16) - Sure hope this is a trend ! The hearing officer erred in holding that
the claimant had not reached MMI per the treating doctor referral’s alternate certification, where that
doctor’s opinion was based on the fact that the claimant needed further treatment (injections) but
the compensable injury was limited to a lumbar sprain/strain (the other lumbar spine conditions
having been determined not to be compensable and not having been appealed). As the designated
doctor had rendered multiple certifications, one of which was for the lumbar sprain/strain only, the
Appeals Panel reversed and rendered an decision using the designated doctor’s certification that
claimant had reached MMI and assigned an impairment rating based on the DWC-determined
compensable injury. Of special significance to the Appeals Panel was the fact that there was no
evidence establishing that the recommended injections were treatment for the lumbar sprain/strain,
which was the only compensable condition.

On April 14, 2016, the DWC held its Quarterly Insurance Carrier Meeting. The Division reported
that the 484 pending air ambulance disputes have been abated pending resolution of litigation in
state and federal court regarding reimbursement for those services. The Division reported
approximately 30 new air ambulance cases are being filed each month, which will also be abated.
Martha Luevano, Director of Medical Fee Dispute Resolution (MFDR) at DWC, also reminded
Carriers of the requirement to respond timely to medical fee disputes. It was noted that 12% of the
time MFDR does not receive a response. Since a response is required by rule, failure to respond
may result in an administrative violation.

With the recent torrential rains, we expect a larger crop of mosquitos this spring and summer. The
US Centers for Disease Control (CDC) issued an alert about the spread of the Zika virus, and Texas
is included in the CDC’s estimate of the areas in the United States where the mosquitos more likely
to spread viruses like Zika, dengue, chikungunya and other viruses can be found. The National
Institute for Occupational Safety & Health (NIOSH) recommends employers protect workers and
workers protect themselves by using preventative measures including: protecting equipment in the
field, removing debris from ditches, filling in areas that collect standing water, removing tires,
buckets and items that collect standing water, and placing holes in containers that could collect
standing water where mosquitos may breed. The CDC and NIOSH have also provided a link for
insect repellant safety at
http://www.cdc.gov/niosh/topics/outdoor/mosquito-borne/default.html.
In Texas, insect bites and stings have been held not to be acts of God and are compensable when
causation is established. It is not enough to show that the injury occurred while in the course and
scope of employment. A claimant must also prove that the injury was of such kind and character as
had to do with and originated in the employer's work, trade, business or profession. Standard Fire
Ins. Co. v. Cuellar, 468 S.W.2d 880 (Tex. Civ. App.-San Antonio 1971, writ ref'd n.r.e.). To show
causation, the claimant must prove that the conditions and obligations of the employment placed him or her in harm's way. Texas Workers' Comp. Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.-San
Antonio 1998, no writ.) Employers whose workplace presents an increased risk for exposure to
mosquitos should be especially cautious (agricultural, outdoor maintenance, road construction) and
look into extra preventive measures.

Casey Sutterfield was a derrick hand who claimed a workers’ compensation injury while working
in North Dakota for a Texas Company, Teravita. He says that after his injury, his employer made
misrepresentations about the availability of workers’ compensation benefits and created a hostile
work environment. He was either fired or resigned, depending on whom you believe. He returned
home to Texas and filed a workers’ compensation claim.
The carrier denied the claim, which was the subject of a contested case hearing in which the DWC
ruled in favor of Mr. Sutterfield. Mr. Sutterfield then sued the employer, the carrier and two
adjusters individually for discriminatory conduct, negligent misrepresentation, and conspiracy. The
employer filed a motion to dismiss the suit asserting that it was based on the employer’s constitutional right to associate with the carrier and to petition the DWC, protected by the Texas
Citizens Participation Act (TCPA). The Dallas Court of Appeals agreed and, on April 1, 2016, the
Texas Supreme Court refused to review the Dallas Court’s ruling.
The TCPA was enacted to “encourage and safeguard the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government to the maximum extent
permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” The Dallas Court said that participation in a workers’ compensation hearing
at the DWC was an exercise of the employer’s right to petition and that testimony at that hearing
was “an absolutely privileged communication.” Mr. Sutterfield argued that his claims against the
employer were exempt under the TCPA because that act expressly exempts actions brought “under
the Insurance Code or arising out of an insurance contract” from its protection. The Dallas Court
disagreed, holding that his lawsuit was not brought under the Insurance Code, rather it was brought
under the Texas Labor Code and common law and he sought damages, not under the insurance
contract between the employer and carrier, but under the provisions of the Labor Code.
The Dallas Court dismissed Mr. Sutterfield’s conspiracy claim and his claim for employment
discrimination by presenting false testimony during the claim process because the TCPA protected
the employer during the hearing process at the administrative level. The court refused to dismiss
the employment discrimination claims regarding the hostile work environment, representations that
he was not entitled to pursue benefits under the Workers’ Compensation Act and wrongful discharge
as well as the negligent misrepresentation claims, as those were based on statements made outside
the DWC proceedings, and were not protected by the TCPA. The entire opinion can be found at
Tervita, LLC v. Sutterfield, 482 S.W.3d 280 (Dallas App. - 2015, pet. ref’d).