UNSEASONAL EMPLOYMENT IN PENNSYLVANIA

By

Jeffrey D. Snyder

A recent Pennsylvania Commonwealth Court Decision in Tojio Orchards, LLC v. WCAB (Gaffney), revolved around seasonal employment, as well as addressing an issue of the Claimant’s entitlement to a healing period, in connection with a specific loss claim.

The Claimant had sustained a specific loss of his left eye on October 8, 2013, as a result of his eye contacting a tree limb, while he was driving a tractor.

The employer then issued a Notice of Temporary Compensation Payable (NTCP), and filed a corrected Statement of Wages (SOW).  The SOW indicated an average weekly wage of only $35.10, resulting in the compensation rate of $31.59 per week being determined.

Subsequently, the TNCP was revoked, with the appropriate stoppage notice, and a “Medical Only” Notice of Compensation Payable being issued, immediately followed by the filing of a Claim Petition, seeking specific loss benefits for the loss of vision in the left eye.

Before the workers’ compensation judge, the petition proceedings were bifurcated, first addressing the issue of employment status and average weekly wage, to be followed by an adjudication of the medical issues.

The testimony presented to the workers’ compensation judge was that the Claimant was a friend of a principal of the employer.  The Claimant and principal had gone to school together, the Claimant had then worked for the employer as an apple picker 30 years before.  He was then hired for the apple harvesting season, driving a tractor, and moving bins for apple pickers as they lolligagged from tree to tree.

He was paid $9.00 per hour, with his normal working hours being between 7:00 a.m. and 5:00 p.m., 5 days a week, and he was never promised any extension of employment beyond the apple picking season, ending coincidentally when all the apples were picked.

Previously receiving Social Security Retirement Benefits, as the Claimant had retired about 6 years prior, the retirement benefits were stopped when he began working for the employer, although he then began to receive the retirement benefits after he was injured.

Interestingly enough, or maybe not, the employer had another employee who worked as a tractor driver for the employer year round.

The record then noted that the apple season lasts from September until November, and that the workers never work in the rain.  A year round tractor driver position, held by another employee, involved spraying, taking care of the farm, computer duties, and during the harvesting season, hauling apples out of the orchard.

Concluding that the Claimant was engaged in exclusively seasonal employment, the workers’ compensation judge granted the Claim Petition, awarding benefits for seasonal employment, and then awarding specific loss benefits for the loss of vision in the eye, with the specific loss benefits being awarded for 275 weeks, which at $31.59 per week, resulted in an award of $8,687.25.

The Claimant then asked the workers’ compensation judge to enter an Interlocutory Order, in order that the decision could be appealed.

The claim was then appealed to the Appeal Board, with the Claimant arguing that he was not a seasonal worker.  The Appeal Board believed that the workers’ compensation judge had imposed too narrow a construction on the Claimant’s employment, and that the judge should have focused on the nature of the work, not the period of time during which the Claimant was working for the employer, citing toFroehly v. TM Harten Company, 139 A.2d 727 (Pa. 1927) (post Andrew Jackson).

The Appeal Board characterized the Claimant’s employment as being that of “itinerant agricultural labor”, observing that employment, although short term, is not necessarily synonymous with seasonal occupation.

Another issue before the Appeal Board was the calculation of the Claimant’s average weekly wage, as the Claimant argued that he had worked less than 13 weeks, and did not have fixed weekly wages, with the Claimant alleging that he was working 50 hours a week, at $9.00 per hour, with the Claimant asserting that his average weekly wage should be $450.00.

The argument made by the Claimant over the calculation of his average weekly wage was rejected by the Appeal Board, determining that the Claimant’s gross earnings over the weeks worked, limited to 5 weeks, only totaled $1,755.00, yielding an average weekly wage of $351.00, and a compensation benefit rate of $315.90.

The Appeal Board also concluded that the Claimant was entitled to a 10 week healing period for a specific loss, modifying the judge’s specific loss award from 275 weeks to 285 weeks.

Shockingly, the employer appealed to the Pennsylvania Commonwealth Court.  In response, the Claimant filed a Designation of Additional Issues on Appeal, again challenging the calculation of his average weekly wage.

Citing to Section 309(e) of the Pennsylvania Workers’ Compensation Act, the Commonwealth Court noted that occupations that are exclusively seasonal, meaning they cannot be carried on throughout the year, should result in an average weekly wage that would be 1/50^th of the total wages which the Claimant or employee earned from all occupations during the 12 months immediately preceding the injury, and, if, for some reason, that calculation was deemed to be unfair, the calculation could be adjusted.

Noting that the Pennsylvania Workers’ Compensation Act does not specifically define what constitutes an “exclusively seasonal occupation”, the Court noted that the Pennsylvania Supreme Court had held inFroehly that “seasonal occupations logically are those vocations which cannot, from their very nature, be continuous or carried on throughout the year but only during fixed portions of it.”

As further noted by the Pennsylvania Supreme Court in Froehly, “a labor occupations possible of performance and being carried on at any time of the year, or through the entire 12 months, is certainly not seasonal.”

In Froehly, the Claimant had been working as a dishwasher for an amusement park that was only open during the summer, from June to September.  The amusement park argued that the Claimant was a seasonal employee, because the park was only open for a few months, with that argument being rejected by the Supreme Court, which found that dishwashing is not a seasonal occupation, even though the employer park was only open for a few months of the year.

An exception to the Froehly rule, involving amateur sports, occurred when the Claimant, while playing for the Arena Football League, inRoss v. WCAB, 702 A.2 1099 (Pa. Cmwlth. 1997), was injured while playing as a football player under a contract.  The AFL argued that the employee should be considered a seasonal employee, an argument that the Appeal Board endorsed.  The Claimant argued, however, that he was not a seasonal employee, because although the employer (AFL) had a set season, the Claimant could still play football for other teams in other leagues at other times, although the Commonwealth Court disagreed, holding that the Claimant’s employment contract, in Ross, prohibited the Claimant from engaging in off-season play.

In Gaffney, the case under discussion, the Commonwealth Court agreed with the Appeal Board that the Claimant was engaged in “itinerant agricultural labor”, when he was injured, but that his position as a temporary tractor driver for the apple harvest was not seasonal employment under Section 309(e) of the Act.

This holding was supported, in the Commonwealth Court’s opinion, by the fact that the Claimant did not have a contract precluding him from performing services throughout the year for another employer.

As for the Claimant’s average weekly wage, the Court held that the Claimant’s average weekly wage of $351.00, resulting from $1,755.00 being divided by 5 weeks, and further resulting in a disability rate of $315.90 representing “economic reality” with that finding being upheld before the Commonwealth Court.

Lastly, the healing period issue was addressed, with the Commonwealth Court holding that a specific loss award entitles a Claimant to a rebuttal presumption that the specific loss entitles the injured worker to a healing period.

Decided by the Commonwealth Court on March 13, 2017, the Gaffney holding is seasonally appropriate, given that the harvest season is only a few months away.

Take Aways

The obvious take away is that seasonal employment is an extremely limited holding, which will, underFroehly, be limited to occupations that by their very nature are fixed to certain seasons, and are not carried on throughout the year.  Conversely, any job that can be performed at any time of the year, will likely not be deemed to be seasonal under the Froehly holding.

ConnorsO’Dell LLP

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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 the addition of a new member to the firm.  John Zuercher (pronounced “Zer-ker”) will join Stone Loughlin & Swanson as an associate attorney effective May 1.  John, a native of Kansas, is a 2013 graduate of Kansas State and a 2016 graduate of Texas Tech Law School. While in law school, John participated in two study abroad programs, one in Lithuania and the other in Australia, but we are glad John decided to make Austin his home. It will be a while before he is up and running, but John is eager to serve our clients’ needs. Join us in welcoming him! E-mail John at jzuercher@slsaustin.com. 

The 85^th Texas Legislature is in full-swing. Through 53 filed bills, the legislators have shown significant interest in tweaking the workers’ compensation system. The following is a summary of the most-relevant provisions.

Attempting to Bring Bad Faith Claims Back to Texas Comp.  In Tex. Mutual Ins. Co. v. Ruttiger, the Texas Supreme Court held that claims for unfair settlement practices (bad faith claims) against workers’ comp carriers under Tex. Ins. Code §541.060 are precluded by the dispute resolution procedures and administrative remedies provided by the Workers’ Compensation Act.  HB 499 would amend Tex. Ins. Code §541.060 to expressly grant workers’ comp insureds and beneficiaries a bad faith claim. –Dan Price, SLS, LLP.
 
No More Payment of Administrative Fine Prior to Judicial Review of TDI Violation? If DWC-TDI assesses an administrative fine for an administrative violation against a system participant, Tex. Lab. Code §415.035 requires the penalized party to pay the administrative fine (by escrow or bond) as a prerequisite to filing a petition for judicial review to challenge the finding of a violation. Failure to first pay the fine currently results in waiver of the penalized party’s legal rights to contest the violation. HB 1456 would eliminate the requirement that the fine be paid prior to challenging the alleged violation on judicial review. –Dan Price, SLS, LLP.
 
All Texas Contractors and Sub-Contractors May Be Required to Provide Workers’ Comp. Tex. Lab. Code § 406.096 currently applies to governmental entities and requires that contractors and sub-contractors who perform work for the entity provide workers’ comp coverage to their respective employees.HB 1477 would amend Section 406.096 to require all contractors and sub-contractors to carry workers’ comp insurance for their employees irrespective of whether the work is provided for a governmental entity.  –Dan Price, SLS, LLP.
 
Proposed Annual Cost of Living Increases to Texas Death Benefits. HB 2054 would amend Tex. Lab. Code §408.181 (relating to Death Benefits) to provide annual adjustments to death benefits to account for inflation as calculated based on the consumer price index published by the U.S. Department of Labor and the cost of living adjustments used by the Social Security Administration. –Dan Price, SLS, LLP.
 
Perpetual Death Benefits to Texas Spouses Who Remarry? Yes, According to this Bill.  Section 183(b) of the Texas Labor Code provides death benefits to an eligible spouse for life unless the spouse remarries. HB 2055 would amend this section to require payment of death benefits to the eligible spouse for life, “regardless of whether the spouse remarries.” –Dan Price, SLS, LLP.
 
Administrative Overreach? Bill Seeks to Provide Administrative Oversight to Texas Court’s Review of Division’s Decisions.In this separation of powers headscratcher, HB 2061 would expand the notice requirements contained in Section 410.253 of the Texas Labor Code to require service on the Division of petition for judicial review (the current version requires only notice that suit is filed) as well as any proposed agreed judgment. In addition, the statute would require disclosure to the Division of all terms of settlement and payment agreed to by the parties as part of the proposed agreed judgment. –Dan Price, SLS, LLP.
 
Texas Bill Requires Carriers to Pay for Injured Workers’ Causation Opinions.If the carrier disputes the extent of injury, HB 2226 would require the carrier to pay a treating doctor (or doctor on referral from the treating doctor) for the preparation or a causation report in support of the claimant’s position on extent of injury. Importantly, the bill allows the doctor to create and bill for such report even in the absence of a request to do so by the injured worker, his representative, or the insurance carrier. –Dan Price, SLS, LLP.
 
A Call for Less Experienced System Participants in Texas: Lowering the Bar for Ombudsmen.The current statutory requirements to serve as an ombudsman in the Office of Injured Employee Counsel include at least one year of experience in workers’ comp.See Tex. Lab. Code § 404.152(b)(4). HB 2060 would eliminate this requirement, meaning a person may become an ombudsman and, with no experience, assist an injured worker through the complexities of the Workers’ Comp Act.  –Dan Price, SLS, LLP.
 
Compound Drugs Excluded from Texas’ Closed Formulary. HB 2830 would allow the Commissioner to exclude by rule from the closed formulary compounded pharmaceutical medications. –Dan Price, SLS, LLP.
 
All Work-Hardening/Conditioning Subject to Preauthorization in Texas, Unless Changed by Rule.Work-hardening and work-conditioning currently requires preauthorization only if the facility providing the work-hardening/conditioning is not a credentialed facility.See Tex. Lab. Code §413.014(2). HB 2058 would require preauthorization for all work-hardening/conditioning irrespective of whether the facility is credentialed or not. There is a catch, however. The bill would authorize the Commissioner to exempt by rule credentialed facilities from the preauthorization requirement. – Dan Price, SLS, LLP.

The general rule in the Texas system is that if a hearing officer determines a Claimant is not at MMI as of a specific date, then the Claimant cannot, as a matter of law, later be placed at MMI on or prior to that date.See Decision Nos. 131674, 140982, and 131655. However, in Decision No. 162510, filed on February 10, 2017, the Appeals Panel held that such certification must still be timely disputed invalid for purposes of determining whether the certification became final.

In this decision, the Appeals Panel acknowledged that in a prior, final decision and order dated January 16, 2016, a hearing officer had determined that Claimant did not reach MMI on November 18, 2015. Claimant was subsequently sent to a designated doctor who certified on April 1, 2016, that Claimant reached MMI on May 22, 2015 – a dateprior to the date the hearing officer determined Claimant had not reached MMI. The April 1, 2016 certification was the first certification of MMI after the prior first certification was overturned by the DWC.

Claimant failed to timely dispute within 90 days the April 1, 2016 certification, which was now, the first valid certification of MMI.The Appeals Panel rejected Claimant’s argument that the April 1, 2016 could not be adopted as a matter of law.

“The fact that the certified date of MMI of May 22, 2015, is prior to the previous decision holding the claimant had not reached MMI as of November 18, 2015, has no bearing upon whether or not the certification became final.”

The parties must always dispute the first certification of MMI/IR if the certification is, as a matter of law, not adoptable. –Dan Price, SLS, LLP.

The Third Court of Appeals in Austin recently upheld the criminal conviction of Howard Douglas, formerly a licensed medical doctor in Texas. Douglas owned and operated North Texas Medical Evaluators (NTME), which served as a scheduling company for designated doctors. The conviction was based on Texas Mutual’s complaint alleging Douglas and NTME referred claimants for FCEs when the claimants were not referred by the designated doctors themselves, and then billed the maximum amount of units (16) possible for an FCE under the workers’ comp fee guidelines when, in fact, the billable FCE time was limited to 30-40 minutes (2-3 units). The Third Court of Appeals affirmed the conviction and Douglas’ sentence to five years in prison.Douglas v. State, Case No. 03-14-00605-CR, in the Third Court of Appeals of Texas, Austin (Apr. 14, 2017). –Dan Price, SLS, LLP.

We are sad to report that the Hon. David Mattax, Commissioner of Insurance, State of Texas, passed away on April 13, 2017, following an extended illness. Commissioner Mattax was 60.  Gov. Greg Abbott released the following statement in tribute to the Commissioner:

“Today Cecilia and I mourn the loss of a friend, colleague, and distinguished public servant. Commissioner David Mattax truly dedicated his life and career to the State of Texas. A brilliant lawyer whose loyalty to Texas never wavered, David was a doting son and brother who took great pride in mentoring young lawyers who would become the leaders of tomorrow.

David’s brilliance, wit, and wisdom will be dearly missed by all who knew him. Cecilia and I extend our deepest sympathies and prayers to the Mattax family.”

SLS likewise extends its condolences to Commissioner Mattax’s family, friends, and colleagues.

By: Bruce Hamilton

On April 6, 2017, the North Carolina Workers’ Compensation Opioid Task Force held its first organizational meeting to study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in Worker’s Compensation claims. The Task Force has not yet issued a report or timeline for when a report is expected.

On April 24, 2017, Gov. Cooper appointed Judge John Arrowood to the North Carolina Court of Appeals to fill the vacancy created by the resignation of Judge Douglas McCullough. The appointment of Judge Arrowood took place following Gov. Cooper’s veto of a bill to reduce the size of the Court of Appeals from 15 judges to 12 judges. The legislation reduced the number of judges on the Court of Appeals by not replacing incumbent judges whose seats became vacant prior to the expiration of the judge’s term due to death, resignation, retirement, impeachment, or removal.

Gov. Cooper nominated Deputy Commissioner Philip Baddour to a six-year term as the next Commissioner of the North Carolina Industrial Commission.  Commissioner Bernadine Ballance’s term ended on April 30, 2017. The Baddour nomination is subject to confirmation by the North Carolina General Assembly and, as of April 26, 2017, the General Assembly had not yet approved Deputy Commissioner Baddour’s appointment.

The North Carolina Workers’ Compensation Educational Conference is scheduled for Wednesday, October 4 through Friday, October 6, 2017. The Industrial Commission announced a Twitter account that will provide updates on breaking news and important announcements from the Commission. Twitter @IC_NC_GOV.

By: Rebecca Thornton

Last winter we examined the Court of Appeals decision in Wilkes v. City of Greenville and its seemingly a radical extension of the Parsons presumption to injuries not initially accepted as part of the claim.  The decision Wilkes was appealed to the North Carolina Supreme Court and is set for oral argument in mid-February 2017.  However, the show must go on, and, in its recent holding in Patillo, the Court of Appeals once again examines the Parsons presumption and its application in North Carolina workers’ compensation cases, as well as the reasonableness of a job search.

Patillo suffered a low back injury on February 16, 2011 while working as a press operator for Defendant-Employer.  He was evaluated at the on-site medical clinic and was restricted to “off-standard” work, which meant that he could not perform all his job functions without assistance.  Patillo remained on off-standard work until April 4, 2011.  The following day he returned to on-standard work.  Then, on May 13, 2011, Patillo was restricted to two weeks of sit-down work only, which was not available, so he went out of work on May 13, 2011.

Patillo later filed a Form 33 Request for Hearing.  No Form 60, 61, or 63 was ever filed. The parties later entered a consent order that Patillo suffered “some level of contusion to the lower back as a result of [the] accident.”  Following a hearing, the Deputy Commissioner issued an Opinion and Award finding the low back injury compensable. The decision also awarded temporary total disability benefits between March 6, 2012 and the time of the hearing, but denied Patillo’s request for prior temporary total disability benefits between May 13, 2011 and March 6, 2012.

Defendants appealed to the Full Commission.  It concluded that that the parties’ consent order created a rebuttable presumption that Patillo’s current low back condition was related to his compensable accident and that Defendants failed to rebut the presumption. Even without the presumption, the Commission concluded that Patillo had proven that his at-work injury caused ongoing non-mechanical back pain and awarded him ongoing medical treatment.  The Commission also concluded that Patillo failed to prove that he was disabled after March 6, 2012 because he had not shown that he made a reasonable effort to return to work or that a job search would have been futile.  Both parties appealed to the Court of Appeals.

The Court affirmed the Commission’s application of the Parsons presumption and conclusion that Defendants had not rebutted the presumption that Patillo’s medical treatment was related to the at-work injury.  The Court cited the Parsons and Perez cases, noting that a presumption of compensability for medical treatment applies to future symptoms allegedly related to the original injury, not just for the original injury itself.  The Court rejected Defendants’ argument that no presumption applied because they had only admitted the compensability of a low back contusion.  The Court further concluded that Defendants had not rebutted the presumption of compensability because they were unable to show, through the medical testimony, that Plaintiff’s current low back pain was separate and distinct from his original work injury.

The decision again highlights the burden shift in accepted claims where Defendants must rebut the presumption that an injured worker’s medical treatment is related to the compensable injury.  Unlike Wilkes, this decision does not radically extend the application of the Parsons presumption to injuries that are not “the very injury” accepted as part of the claim.  Instead, it highlights the importance of investigating new injuries or conditions soon after they are discovered to determine whether evidence exists to rebut the presumption, and also to establish that there is evidence that new injuries and conditions are “separate and distinct” from the original accepted injury.

The Court also examined the issue of futility and reasonableness of the job search performed by Patillo.  It reversed the Commission’s decision and stated that the determination that Patillo had not conducted a reasonable job search was not supported by competent evidence.  The Court acknowledged that there is no set rule for determining the reasonableness of a job search and stated that, although the determination of reasonable is discretionary, the Commission must make findings of fact to support its determination of reasonableness.  Therefore, the case was remanded to the Commission for further findings.

The holding in Patillo does not constitute as drastic a shift from the application of the Parsonspresumption as the Court’s holding in Wilkes.  However, both cases are an important reminder to be prepared to produce evidence that additional claimed injuries are not causally related to accepted conditions. Also, stay tuned for further developments in the application and interpretation of the Parsons presumption by North Carolina courts.