State News : Pennsylvania

                                                                     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.

PARENTAL NIGHTMARE, OR A VIOLENT COURSE AND SCOPE OF EMPLOYMENT PENNSYLVANIA CASE

By

 Kevin L. Connors, Esquire

Does being brutally stabbed by your son at home in the middle of the night while you sleep warrant an award of workers’ compensation benefits?

This is not a trick question. 

It was the critical factual/legal issue in O’Rourke v. WCAB, a decision issued by the Pennsylvania Supreme Court on October 27, 2015.

Not surprisingly, the critical issue was whether the undisputed injury occurred within the course and scope of employment, a necessary prerequisite for any award of workers’ compensation benefits in Pennsylvania.

In reversing the Pennsylvania Commonwealth Court, which had found that the Claimant had sustained her burden of proving that her injury occurred within the course and scope of employment, the Pennsylvania Supreme Court, in a Decision authored by Justice Stevens, ruled that the Claimant was not engaged in the furtherance of the employer’s business interests, when sleeping in her bedroom as she was brutally attacked by her son, such that the Court held that the Claimant’s injuries did not occur within the course and scope of her employment, and were not, therefore, compensable under the Pennsylvania Workers’ Compensation Act.

A ruling clearly predicated on statutory logic, defying deference to tragic circumstances.

In O’Rourke, the Claimant worked for accessAbilities, a state-funded program run by the Pennsylvania Department of Public Welfare. 

Employed by accessAbilities, she was paid hourly to provide attendant care for her 33 year old son, who suffered from a variety of complicated health issues caused by long-term drug use.

Begging the necessary question of how an employer-employee relationship existed, the Supreme Court considered that the employment arrangement was designed as a consumer model of service delivery, with the individual requiring care being the employer, necessitating that workers’ compensation insurance coverage be secured, with the employer, herein, the son in need of care, being responsible for hiring, training, disciplining, and terminating employees.

The state-funded program then acted as a payroll agent for any employees, as well as to meet employer needs if necessary.

In O’Rourke, the employer arrangement initiated when the Claimant’s son had his leg amputated in 2007.  Subsequent to the Claimant’s son undergoing in-patient rehabilitation, arrangements were made for the son to move in with the Claimant, to live more independently, in 2008.

Several weeks later, the Claimant and her son enrolled in accessAbilities, and the Claimant was trained to assist her son with dressing, bathing, wound care, taking medications, preparing meals, and transportation.

The son received funding through the state for 64 hours of care each week, although he never qualified to receive nighttime or 24-hour care.

Since the son was living with the Claimant, he requested that she provide him with care in the evening, if she was awake.  If the Claimant provided any nighttime care, she would log those hours against the next day that she would work.

Typically, she worked 40 hours per week, Monday through Friday, and then 12 hours per day on both Saturday and Sunday.  Her hours were recorded on timesheets through Halo, an online computerized system that allowed her to clock in and out each day.

On April 10, 2009, the Claimant returned home around 10:00 p.m., after a night of BINGO.  

When she came home, her son asked her to make him something to eat, although the Claimant asked if she could first change her clothes.

An argument then ensued between the two, although the Claimant did change her clothes, fed her son, and then went to sleep around 11:30 p.m.

In the early morning hours of April 11, 2009, the Claimant’s son came into the Claimant’s room, jumped on top of her, slashed her throat, and then stabbed her several times with a butcher knife, screaming, less than endearingly, “I’ll kill you, you fucking bitch”.

Anyone recall Oedipus Rex by Sophocles?

Surviving the violent attack, the Claimant then filed a Claim Petition against her son’s insurer, State Workers Insurance Fund (SWIF), alleging that she had sustained a work-related injury, resulting in the specific loss of her left arm, further claiming that she was also suffering from psychological injuries, unrelated to simply being a parent.

She then also filed a Review Petition, seeking medical treatment, as well as claiming that she was suffering from post-traumatic stress disorder (PTSD).

The WCJ bifurcated the litigation, in order to initially determine the course and scope of employment issue.

In support of her petitions, the Claimant testified to the employment arrangement, as well as the gruesome details of the attack causing her injuries.

A coordination specialist witness testified for accessAbilities. 

That testimony clarified that the Claimant’s son, as employer, never qualified for overnight care, as that level of care required a traumatic brain injury.

The accessAbilities witness also testified that the Claimant’s timesheets indicated that she never recorded working late night or early morning hours when caring for her son.

Initially determining that the Claimant’s injuries were compensable, finding that the injuries occurred within the course and scope of employment, the WCJ nevertheless concluded that the Claimant was not actually engaged in the furtherance of the employer’s (her son) business or affairs at the time of her injury, as she was sleeping when attacked, further finding that the Claimant did not routinely provide care to her son, who the WCJ found did not qualify for overnight care, with the WCJ concluding, however, that the Claimant was on the “employer’s premises” when injured, thereby entitling her to workers’ compensation benefits under the Interlocutory Order issued by the WCJ.

In determining that the Claimant’s injuries occurred within the course and scope of her employment, the WCJ also rejected SWIF’s argument that the Claimant’s injuries resulted from “personal animosity”, a defense that negates the compensability of alleged work-related injuries when the injuries occur as a result of reasons personal to the attacker and Claimant under Section 301(c)(1) of the Act.

Subsequent to the initial determination by the WCJ that the Claimant’s injuries occurred within the course and scope of employment, the medical issues were then litigated with the WCJ issuing a Decision awarding compensation benefits to the Claimant for both temporary total disability and specific loss benefits, with the specific loss benefits obviously only being recoverable after exhaustion of the temporary total disability benefits.

Both parties then appealed, with the Claimant contesting some of the Findings of Fact made by the WCJ, and with SWIF appealing the determination that the Claimant’s injuries occurred within the course and scope of her employment.

The Appeal Board then reversed the WCJ’s Decision, holding that the Claimant’s injuries did not occur within the course and scope of her employment as she was neither furthering the employer’s interests, nor did her employment require her to be “on the premises”, at the time of her injury, in reliance upon Slaugenhaupt v. US Steel, 376 A.2d 271 (Pa. Cmwlth. 1977); the seminal “on the premises” course and scope of employment workers’ compensation decision in Pennsylvania.

Effectively, the Appeal Board held that the Claimant was not “required” to “remain on the premises” once she finished her work duties and went to bed, further finding that the Claimant’s “employee status” ended, as she simply became a resident of the house, when she “embarked on a course of ‘recreation separate and distinct from the duties of her employment’.”, when she went to bed.

Appealed to the  Commonwealth Court, the Court reversed the Appeal Board’s Decision, reinstating the WCJ’s award of compensation to the Claimant, in the course of finding that the Claimant was entitled to compensation as she was “practically required” to live on the premises because of her employment.

Ever hear of the “bunkhouse rule”, cited in Malkay v. Kaskminetas Valley Coal Company, 123 A. 505 (Pa. 1924); a Decision in which coal miners were awarded workers’ compensation benefits for injuries that occurred while the coal miners were required to live on the employer’s premises?

Talk about working at home.

Concluding that the Claimant was required to live on the “work premises”, in order to provide care to the Claimant, the Commonwealth Court held that “when an employee is injured on the work premises by the act of another employee, there is a rebuttable presumption that the employee is covered by the Act.”  Citing to General Electric v. WCAB, 412 A.2d 196 (Pa. Cmwlth. 1980).

In reliance upon General Electric, the Commonwealth Court transferred the burden of proof from the Claimant to the employer (SWIF), to establish that the Claimant’s injuries were the result of an attack caused by personal animus, with the Court agreeing with the WCJ’s decision that SWIF failed to sustain its burden of proving that the attack resulting in the Claimant’s injuries was motivated by personal animus, instead of being related to the employment arrangement between the Claimant’s son and the Claimant.

Affirming the WCJ’s findings of fact, the Commonwealth Court held that the reason for the Claimant’s son assaulting the Claimant remained unknown, there being no evidence in the record from which a conclusion as to cause could be inferred.

Granting SWIF’s Petition for Allowance of Appeal, the Pennsylvania Supreme Court held that the Claimant had “clearly departed from her work duties and was engaged in a purely personal activity when she was attacked while sleeping in her bedroom”, it being clear that the Claimant was not engaged in the furtherance of the employer’s business when injured, such that the only scenario under which the Claimant would be allowed to recover workers’ compensation benefits is if it was proven that the Claimant was injured while on “premises occupied or under the control of the employer”.

This burden of proof would also require an analysis as to whether the Claimant’s presence, in her bedroom, at the time of the attack was “required by the nature of her employment”.

Reversing the Commonwealth Court’s finding that the Claimant was required to be “on the premises” when injured, the Supreme Court held that the Claimant’s employment contract and job description never required the Claimant to work late-night shifts, or to provide 24-hour care, or to be on call for son’s needs, as her son never qualified to receive funding for an overnight caretaker, given that his medical condition did not warrant such care.

So holding, the Pennsylvania Supreme Court ruled that the Claimant’s “presence in her bedroom in the middle of the night was not required by the nature of Claimant’s employment”, such that the Claimant should not have been entitled to an award of workers’ compensation benefits.

The Supreme Court also held that the Commonwealth Court’s reliance upon the Supreme Court’s earlier decision inMalky, was misplaced, as the “bunkhouse rule covered situations in which an employee’s living arrangements in the work presence is reasonably necessary to perform the tasks required by the employer.”

In Malky, the employees were required to be on the employer’s premises 24 hours a day, withMalky involving union coal mine workers being killed in an explosion when striking workers threw a bomb into the mine bunkhouse in the middle of the night, with the WCJ initially denying compensation, finding that the mine workers were not required to be on the employer’s premises at the time of the explosion, with the Supreme Court holding that the mine workers were required to be on the employer’s premises 24 hours a day, and that the employer occupied and controlled the premises where the mine workers were killed.

The Supreme Court also held that the Commonwealth Court in O’Rourke failed to recognize that the bunkhouse rule should only result in an employee being compensated for work-related injuries that result from normal activity during the employee’s leisure time, if the employee is required to live on the employer’s premises and the premises are controlled and used by the employer in its business.  SeeMalky, 123 A. at 506.

In short, the bunkhouse rule imposes workers’ compensation liability on an employer requiring its workers to live in employer-furnished premises, when the employer controls, maintains, and uses the premises for its own benefit.

The rationale underlying the bunkhouse rule is that “an employee’s reasonable use of the employer’s premises constitutes a portion of the employee’s compensation.” Pierre v. Seaside Farms, Inc., 689 S.E. 2d, 615 S.C. (2010).

Consistently acknowledging the remedial nature of the Workers’ Compensation Act, intending that the benefits inure to injured workers, the Supreme Court nevertheless held that it was “mindful that the Act was not intended to make the employer an insurer of its employees’ lives and health.”  Kmart Corporation v. WCAB, 748 A.2d 660 (Pa. 2000).

Holding that the Claimant was not engaged in furtherance of her son’s business when she was attacked while sleeping in her bedroom, nor did the nature of her employment require her to be in the bedroom at the time of the attack, the Pennsylvania Supreme Court concluded that her injuries were not sustained in the course and scope of her employment, and were not, therefore, compensable under the Workers’ Compensation Act.

A dissenting opinion was submitted by Justice Todd, in the course of which Justice Todd would have held that the nature of the Claimant’s employment did require her to live with the employer, her son, and that her home was, therefore, the “work premises”.

TAKE AWAY

Clearly, this is a highly unusual case, involving unique circumstances.

All kinds of factors were at play in this case, with our analysis being that the Supreme Court correctly decided that the Claimant’s injuries were not sustained within the course and scope of her employment, and that the nature of her employment relationship did not require the Claimant’s presence “on premises” controlled or occupied by the employer, her son.

Given the highly unusual facts involved with this case, course and scope of employment issues need to be carefully scrutinized for factual inconsistencies defying statutory logic.

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.

TO BE EMPLOYED OR INDEPENDENT IN PENNSYLVANIA

By

Jeffrey D. Snyder, Esquire

In the Commonwealth Court’s Opinion in Agatha Edwards v. WCAB (Epicure Home Care),1106 C.D. 2015, filed March 10, 2016, the Court re-visited the issue of employee versus independent contractor. 

The Claimant was a personal caretaker who received her assignments through Epicure.  The case was bifurcated before the WCJ below to address the employee versus independent contractor issue. 

The Workers’ Compensation Judge (WCJ) concluded that the Claimant was an Employee.  On the Employer’s appeal to the Workers’ Compensation Appeal Board (WCAB), that Decision was reversed.  That reversal was affirmed by the Commonwealth Court (Court).

The WCJ considered that Epicure, referred to as the “Company” in this Court Opinion, registered and screened caretakers and then matched caretakers to clients in need of in-home care.  The Claimant worked for the Company for some six years before the date of injury.  The Company controlled work assignments and set wages. 

The Company advised the Claimant of the client’s condition, set work hours, and required the Claimant to check in and out when working on assignments.  The Company set guidelines for care and provided a related manual to the caretaker.  A caretaker could be removed from an assignment by the Company.

The Claimant was injured when she fell down a flight of steps in a client’s home.

A classic OOPS!

The WCJ noted that the Claimant worked as a caretaker for over 19 years, never working independently but always associated with an agency.  The Company billed the clients at a suggested rate for services and the clients then sent separate checks to the Company and to the Claimant. 

The Claimant deducted her own taxes - and her tax returns identified her as self-employed.  The Company did not inform the Claimant that it would not provide workers’ compensation insurance coverage.  Eventually, and before her accident, the Claimant signed an Employment/Independent Contractor Agreement with the Company.

The WCAB, in reversing the WCJ, relied on an unpublished Opinion in Fletcher v. WCAB (Saia d/b/a Visiting Angels), Pa. Cmwlth. Ct. 1664 C.D. 2009,filed March 26, 2010;  unpublished Opinions may be cited as persuasive, but not as controlling precedent, per the Operating Rules of the Court. 

Fletcher was said to involve similar facts as here, and in that case, the Court had concluded that the home health caregiver was an independent contractor.

The Claimant argued on appeal to the Court that the WCAB was re-weighing the evidence and substituting its own fact-finding for that of the WCJ.  The Court determined that it was not dealing with issues of credibility as much as issues of law relative to the employee versus independent contractor status of the Claimant. 

The Court noted that the Claimant had the burden of proof on this Claim Petition, and that: “The existence of an Employer-Employee relationship is a question of law based on the facts presented in each case”.  The Court cited to the case ofHammermill Paper Company v. Rust Engineering Company, 243 A.2d 389 (Pa., 1968), for factors indicative of employee versus independent contractor status.  These factors include ten items for consideration:

            (1) Control of manner in which the work is done;

            (2) Responsibility for result only;

            (3) Terms of agreement between the parties;

            (4) Nature of the work/occupation;

            (5) Skill required for performance;

            (6) Whether one is engaged in a distinct occupation or business;

            (7) Which party supplies the tools/equipment;

            (8) Whether payment is by time or by the job;

            (9) Whether work is part of the regular business of the ‘Employer’; and,

            (10) The right of the ‘Employer’ to terminate employment. 

The Court observed that one factor is not dispositive, with control over the work to be completed and the manner in which it is to be performed being the primary factors in determining employee status.  Payment is not determinative, citing toAmam. Rd. Lines v. WCAB (Royal), 39 A.3rd 603 (Pa. Cmwlth., 2012), nor is a declaration of self-employment on a tax filing dispositive, citing toGuthrie v. WCAB (The Travelers Club, Inc.), 854 A.2d 653 (Pa. Cmwlth., 2004).

The Court agreed with the WCAB that the facts in Fletcher were nearly identical to those presented in this case.  The Court nonetheless observed that the WCJ made findings supporting status as an independent contractor.  Although the Company billed clients and set a suggested rate of pay, the clients paid Claimant directly and determined the rate of pay.  The Claimant deducted her own taxes.  The Claimant identified herself as self-employed on her tax returns.  The Company did not provide its caretakers with any sick time, vacation or holiday pay.  The Claimant signed an Employment Agreement, which provided that caretakers are not employees of the Company.  The Claimant was free to work for other agencies.

In the view of the Court, the WCAB did not re-weigh the evidence or substitute its findings for that of the WCJ.  The Court considered this case similar to that inFletcher, but nevertheless held that ultimately the findings of the WCJ did not support the legal conclusion that Claimant was a Company Employee.  The Court did not specifically distinguish the facts inFletcher, but noted that as an unreported Opinion, it could be cited as persuasive authority, although not as a controlling precedent. 

The Court made no mention whatsoever of Pennsylvania’s adoption of the Construction Workplace Misclassification Act, a statute specifically designed to provide parameters for independent contractor versus employee status in the construction industry, in this Opinion.

The take away from this case is that the determination of Employee versus independent contractor status resides in the details, and that the structuring of the relationship is the key to determining the issue and surviving appellate review.

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.

PENNSYLVANIA MEDICAL ONLY WORKERS’ COMPENSATION CLAIMS

By

Kevin L. Connors, Esquire

Recently, the Pennsylvania Commonwealth Court issued two decisions in October of 2015, addressing the procedural issues that arise in the context of what is the appropriate petition to file, when a Claimant whose workers’ compensation claim has been accepted as a “medical only” claim, with the issuance of a Medical Only Notice of  Compensation Payable, thereafter alleges that the workers’ compensation claim has resulted in allegedly compensable wage loss, with the procedural debate being whether the Claimant must file a Claim Petition, or, alternatively, should file a Reinstatement Petition.

The two Commonwealth Court decisions are Sandra Sloane v. WCAB (Children’s Hospital of Philadelphia), decided on October 1, 2015, andAlex Ingrassia v. WCAB (Universal Health Services), decided on October 26, 2015.

In Sloane, the Commonwealth Court determined that the Claimant’s medical treatment was compensable, but that the Claimant was not entitled to an award of temporary total disability benefits, for reasons that we will explain.

In Ingrassia, the Commonwealth Court vacated the decisions of the Workers’ Compensation Appeal Board and WCJ, denying the Claimant’s claim for disability benefits, with the case remanded back to the Appeal Board and WCJ, to render additional findings of fact and conclusions of law on the issue of the alleged Sloane wage loss disability.

Sloane

Turning first to Sloane, Sloane was injured while working for the Children’s Hospital of Philadelphia on April 20, 2004.  Her injury was an injury to her right elbow, in the course of moving cervical traction weights for a patient.

Her claim was then accepted under a Notice of Compensation Payable, with the claim being accepted both for the description of injury as well as for associated wage loss disability.

The described injury was lateral epicondylitis of the right elbow.

Subsequent to the acceptance of the claim, the Claimant began receiving partial disability benefits, under a series of Supplemental Agreements, reflecting that the Claimant was working in a light-duty position with reduced wages.

She then suffered a second work injury, on December 3, 2006, while she was attempting to restrain a patient.  That injury involved the Claimant injuring her right elbow and right knee.

The 2006 claim was accepted as compensable under a Medical Only Notice of Compensation Payable, with the NCP not recognizing any compensation for alleged wage loss.

The 2006 injury was described as an “exacerbation of right elbow epicondylitis and flare up of pre-existing (degenerative joint disease) in her right knee”.

Following that injury, the Claimant did return to light duty work, and continued receiving temporary partial disability benefits for her 2004 injury, until November 16, 2007, when she stopped working in anticipation of a right knee replacement surgery for the 2006 injuries.

Following the right knee replacement surgery, the Claimant did not return to work.

She then filed a Reinstatement Petition on May 31, 2011, seeking temporary total disability benefits as of November 1, 2007 for her right knee injury.

In a Decision issued by the WCJ on May 15, 2012, the WCJ granted the Claimant’s Reinstatement Petition, finding that the Claimant was totally disabled as of November 17, 2007, predicating the disability on her two injuries from 2004 and 2006.

The WCJ further required the employer to pay medical bills for treatment of the Claimant’s 2004 and 2006 work injuries, as well as to pay for the 2007 right knee replacement and subsequent post-surgical treatment.

The Judge’s Decision was then appealed to the Appeal Board by the employer, with the Appeal Board reversing the Judge’s Decision granting total disability benefits based upon the 2006 work injury, concluding that the Claimant had been required to comply with the three year statute of limitations period under Section 413(a) of the Act, as opposed to the 500 week period for reinstatement of suspended partial disability benefits under Section 302(b).

Since the Claimant did not file her petition within three years of the issuance of the 2006 NCP, the Appeal Board held that the Claimant was time-barred from receiving temporary total disability benefits for the 2006 injury.

However, the Appeal Board did conclude that the Claimant’s petition was timely filed with respect for her 2004 injury, as she was continuing to receive partial disability benefits for that injury through the date that she filed her Reinstatement Petition.

In concluding that the Claimant was still entitled to receive temporary partial disability benefits for the 2004 injury, the Board nevertheless determined that the Claimant had failed to prove, through credible and substantial medical evidence, that she was totally disabled as a result of the 2004 injury, such that the Appeal Board denied her claim for temporary total disability benefits for that injury.

Not surprisingly, both parties then appealed to the Commonwealth Court.

Before the Commonwealth Court, the Claimant argued that the Board had erred in barring her wage loss and medical benefits for her 2006 injury, in reliance upon a three year statute of limitations, as she claimed the issuance of the Medical Only NCP for her 2006 injury resulted in her “disability” being placed in a suspended status, which should have allowed her to seek reinstatement of compensation within 500 weeks of the issuance of the 2006 NCP. 

She also claimed that she was totally disabled from her 2004 work injury as of 2007.

Opposing Claimant’s appeal, the employer argued that it was not liable for the Claimant’s 2007 right knee replacement surgery, nor for medical expenses related to the 2006 injury, based on the Claimant having presented insufficient medical evidence to sustain her burden of proving either fact.

Addressing the timeliness of the Claimant’s petition, the Commonwealth Court, in an Opinion authored by Sr. Judge Colins, held that while Section 413(a) of the Act empowers a WCJ with broad discretion to amend an award of benefits, to include amending an NCP or an agreement of the parties, this Section of the Act also requires that the petition seeking to review, modify, or reinstatement benefits must be filed “within 3 years after the date of the most recent payment of compensation made prior to the filing of such a petition.”, in reliance upon Fitzgibbons v. WCAB (City of Philadelphia), 999 A.2d 659 (Pa. Cmwlth. 2010). 

Citing to the Pennsylvania Supreme Court’s ruling in Cozzone v. WCAB, 73 A.3d 526 (Pa. 2013), theSloane Court held that Section 413(a) of the Act is intended to act as a statute of repose, cutting off any entitlement to the reinstatement of disability benefits that have been partially or totally suspended at the expiration of the 500 weeks under which partial disability benefits are payable pursuant to Section 306(b)(1) of the Act.

Holding that the 500 week and 3 year statute of limitations periods under Section 413(a) of the Act must be construed together, with both being given affect to allow a Claimant whose benefits were suspended or reduced prior to the expiration of the 500 week period, to seek a reinstatement of total disability benefits within 3 years of the last payment of benefits, or the maximum 500 weeks allowed for partial disability, whichever occurs later.

As the Commonwealth Court explained, citing to City of Philadelphia v. WCAB, 24 A.3d 1120 (Pa. Cmwlth. 2011); Forbes Road CTC v. WCAB, 999 A.2d 627 (Pa. Cmwlth. 2010), the medical-only option for an NCP was created to allow an employer to accept liability for an injury, allowing for the payment of medical expenses, without being construed as an admission of liability with respect to the claim of loss of earning power.

Since the employer had never recognized or accepted the Claimant’s claim of alleged wage loss disability inSloane, disability wage loss benefits were never suspended when the 2006 NCP was issued, and the Claimant could not, therefore seek to have her disability benefits reinstated, as the 500 week period for reinstatement of benefits did not apply in Sloane absent an acceptance of liability as to wage loss.

Concluding that the 500 week period was inapplicable to the filing of the Claimant’s petition, the Commonwealth Court then sought to determine whether the Appeal Board had correctly determined that the Claimant’s petition was untimely, in terms of a 3 year statute of limitations, to the extent that it sought disability benefits for her 2006 injuries, noting that the issue was apparently one offirst impression.

Holding that the fact that no disability compensation had ever been paid for the Claimant’s 2006 injuries, theSloane Court held that the Claimant was required to establish entitlement to the disability benefits that she was seeking by filing a petition within 3 years of the date of her alleged injuries; although, inSloane, the Claimant’s petition was filed on December 31, 2011, and sought wage loss benefits for alleged injuries that had occurred on December 3, 2006, more than 5 years prior.

As for the Claimant’s attempt to reinstate total disability benefits for her 2004 injury, the Sloane Court held that the Claimant’s petition only sought benefits for her 2006 injury, not for the 2004 injury, with the parties having agreed, during the petition litigation, that the parties expressly stipulated that the 2004 injury would not be part of the current proceeding, such that neither party presented medical evidence on the issue of whether the 2004 injury totally disabled the Claimant from being able to work.

The take away from Sloane, in the context of what is the proper petition to file in the course of seeking temporary total disability benefits for injuries that the employer/insurer has accepted as “medical only”, is that a Claim Petition must be filed within 3 years of the injury, pursuant to Section 315 of the Act, to preserve any claim for wage loss benefits related to a “medical only” injury claim.

Ingrassia

In Ingrassia, the WCJ’s denial of disability benefits, affirmed by the Appeal Board, was vacated by the Commonwealth Court, with the case being remanded back to the Board and WCJ, to render findings of fact and conclusions of law on the issue of whether the Claimant was entitled to wage loss disability compensation benefits.

Ingrassia worked for Universal Health Services as a full-time transportation van driver, shuttling children to and from appointments.

While sitting at a red light, the Claimant’s van was rear-ended on June 16, 2011.

The Claimant immediately sought medical treatment with the employer’s panel doctor, with the Claimant being released to return to work.

A medical only NCP was then issued, describing the injury as a strain/sprain of the Claimant’s cervical and lumbar spine, with the Claimant’s medical treatment and expenses being accepted as compensable.

The day after the Claimant’s accident, the Claimant came into work, but left early, claiming that he had a headache and was dizzy.

The Claimant never returned to work for Universal Health.

Two months later, the Claimant filed a Claim Petition, alleging that he had suffered injuries to his neck and back, as well as to his head and left arm, with the Claimant alleging that he became totally disabled by his work injuries the day after the June 16, 2011 accident.

In the course of litigating the Claim Petition, both parties presented evidence, with the Claimant also amending his Claim Petition to a Reinstatement Petition, based upon the employer having already recognized that a work injury had occurred.

In 2012, the Claimant testified before the WCJ that he had started a new job, driving a customer shuttle van for a different employer, in June of 2012. 

Questioned whether the Claimant would have been able to return to his pre-injury job with the employer, the Claimant testified that he had resumed driving in December of 2011, and that “I would say I could, sure,”, but that the Claimant found his new job simply easier to perform.

Accepting the Claimant’s testimony as being credible, except for any testimony that the Claimant had offered that his pre-injury job was too difficult to perform as of July of 2012, when the Claimant had begun working for the other employer, the WCJ concluded that the Claimant had failed to offer credible medical evidence that his work injury disabled him from being able to perform his pre-injury job.

Appealing the WCJ’s Decision, the Claimant was unsuccessful in convincing the Appeal Board to vacate, with the Appeal Board concluding that the Claimant’s expert medical witness, Dr. Yang, had offered testimony that was speculative as to the Claimant’s alleged disability, because the doctor lacked a factual basis for that opinion.

Appealing to the Commonwealth Court, the Claimant argued that the WCJ and Board had applied the wrong burden of proof, claiming that the issuance of the medical only NCP should have characterized his compensation benefits as being in a suspended status, such that the Claimant would have then carried the burden of proof that would be applicable to a Reinstatement Petition, a burden very different than that carried by a Claimant litigating a Claim Petition.

Under a Reinstatement Petition, the Claimant need not present medical evidence, as the Claimant’s testimony alone can support a reinstatement of compensation, that the originally-accepted disability, being the incapacity to perform the pre-injury job, has recurred, such that the Claimant again has a loss of compensable earnings.

Under a Reinstatement Petition, the burden of proof would then shift to the employer, requiring the employer to prove that the alleged disability is unrelated to the accepted work injury.

Holding that a Claimant, whose injuries have been accepted under a medical only NCP, who is seeking wage loss benefits for the accepted work injuries,Ingrassia held that the Claimant must file a Claim Petition, under which the Claimant would then carry the burden of proving that the work injury is causing a loss of earning power underOrenich v. WCAB, 863 A.2 165 (Pa. Cmwlth. 2004).

Under a medical only NCP, the Ingrassia Court held that there are no disability benefits to suspend or reinstate, since there had never been an acceptance or establishment of a loss of earning power resulting from the work injury.  Since the Claimant in Ingrassia had properly filed a Claim Petition, the Claimant continued to carry the burden of proving, through competent medical evidence, that the work injury resulted in wage loss disability.

In this context, the Ingrassia Court held that the WCJ and Board had correctly applied the burden of proof applicable to a Claim Petition, as opposed to the lesser burden of proof that would otherwise arise in the context of a Reinstatement Petition.

The take away from Ingrassia, no different than Sloane, is that the employer’s issuance of a medical only NCP does not result in a suspension of the entitlement to wage loss compensation benefits, as the medical only NCP only constitutes an acceptance of liability with respect to medical compensation benefits, such that it does not toll any timeline for seeking wage loss compensation benefits under either Section 413(a) or Section 315 of the Act, requiring a Claimant seeking wage loss compensation benefits for injuries that have been accepted under a medical only NCP to file a Claim Petition within 3 years of the date of injury, in order to preserve the alleged entitlement to wage loss compensation benefits under Section 306 of the Act.

Clear as a bell!

Well, the issue was one of first impression, in both cases, such that procedural clarification was necessary, in order that all parties understand not simply which petition is relevant, be it claim or reinstatement to the attempt to secure wage loss compensation benefits for injuries accepted under a medical only NCP, but that the characterization of the petitionalso determines the appropriate burden of proof, which, as we all know, is completely different under Claim and Reinstatement Petitions, as the Claimant carries almost no burden of proof under a Reinstatement Petition, a petition that seemingly can be granted by a WCJ with breathless testimony from a Claimant that the originally-accepted disability has recurred, and that the Claimant cannot, therefore, work, as opposed to the burden under a Claim Petition, requiring proof of several elements, to include employment, notice, causation, and disability, burdens which are continuing for a Claimant underInglis House v. WCAB, 634 A.2d 592 (Pa. 1993).

Conclusion

To close, the correct petition to litigate following issuance of a medical only NCP is a Claim Petition, and not a Reinstatement Petition, as wage loss disability has never been accepted by the employer/insurer, under a medical only NCP, and any claim for wage loss compensation benefits related to injuries accepted under a medical only NCP now clearly carries a 3 year burden of proof for the filing of a Claim Petition for wage loss compensation.

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.

“have fun stormin da castle”; SALADWORKS VERSUS SIX L’S

By

Kevin L. Connors, Esquire

Channeling Miracle Max from the infamous Princess Bride Movie, Circa. 1987, inSaladworks v. WCAB, decided on October 6, 2015, the Commonwealth Court has, in effect, stormed the liability-deflecting fortress that the Uninsured Employers Guaranty Fund has erected around the Pennsylvania Supreme Court’s milestone decision in Six L’s v. WCAB, 44 A.3d 1148 (Pa. 2012) in which decision the Supreme Court broadly expanded the scope of “statutory employer” liability, from its traditional matrix, as defined by the Supreme Court’s 1930 decision inMcDonald v. Levinson Steel Company, 153 A. 424, under which “statutory employer” liability for workers’ compensation coverage traditionally attached to a nexus of vertical privity between a construction site owner and the employee of an uninsured subcontractor performing work entrusted to the general contractor by the construction site owner.

In Saladworks, the Claimant, Frank Gaudioso, an employee at a Saladworks franchise restaurant, was injured in 2011, while walking out of the back of the Saladworks restaurant to throw away a box, with the Claimant falling and sustaining work-related injuries.

Filing a Claim Petition against the Saladworks franchise, corporately registered as G-21, which, coincidentally, was uninsured for workers’ compensation claims.

For that reason, the Claimant filed a second Claim Petition against the UEGF, alleging that UEGF was secondarily liable for the Claimant’s workers’ compensation benefits by virtue of the Claimant’s employer, the Saladworks franchise, being uninsured for workers’ compensation benefits.

Always seeking a tertiary target, the UEGF filed a Joinder Petition against the main Saladworks corporation, which was a franchising operation, selling and marketing franchises to franchisees; UEGF alleged, however, that Saladworks should be jointly and severally liable for any workers’ compensation benefits awarded by the WCJ to the Claimant, claiming that Saladworks was, in effect, a “statutory employer” for the Claimant.

To clear up the elusive fiction being painted by this tale of woe and weave, it is best exposed in the light of the exchange between Princess Buttercup and the Man in Black in the Princess Bride, when Princess Buttercup, in flawless diction, insisted: “You mock my pain”; to which the Man in Black reposted: “Life is pain, My Highness.  Anyone who says differently is selling something.”

What are we selling in this repository, beyond that, correct or incorrect, Six L’s continues to be an invaluable weapon in the UEGF’s arsenal, in the course of deflecting secondary liability against it to tertiary parties, either with direct or indirect involvement in the underlying employment status of the Claimant seeking workers’ compensation benefits, with Six L’s now being an established lexicon in the legal nexus that we refer to as the topography of our workers’ compensation universe in Pennsylvania.

Turning back to the UEGF’s Joinder Petition, Saladworks, in response, argued that the Joinder Petition should be dismissed and stricken, as Saladworks had no direct relationship with the Claimant, was simply a franchisor, granting certain rights to G21 to use as registered trademarks and system pursuant to the terms and conditions of its Franchise Agreement, which was introduced into evidence.

Seeking the dismissal of the Joinder Petition, Saladworks presented testimony from its Director of Franchise Administration, with that testimony setting forth the following:

·         “We only sell franchises to prospective franchisees to open up their businesses with Saladworks’ concept”;

·         “Franchises are sold under Franchise Agreements”;

·         “Saladworks, as the corporate franchisor, has no information regarding the identity of employees at franchise locations”;

·         “Saladworks, again as the corporate franchisor, does not do any of the hiring or firing of the employees at franchise locations”;

·         “Saladworks, as the corporate franchisor, does not dictate how many hours an employee might work at a franchise location, nor does it provide any training for the day to day operational employees of a franchise”.

Cross-examination of the Saladworks administrator revealed that Saladworks does train the owner of the franchise, and that its Marketing Department assists the franchisees with marketing, and it also provides assistance to the franchisee prior to the opening of the location, thereafter conducting operational performance reviews of franchisees, while retaining the authority to terminate a franchise if a franchisee fails to comply with the Franchise Agreement and a Confidential Business Manual, instructing franchises in the operational details of running the business.

The Franchise Agreement also requires the franchisee to maintain certain types of insurances, to include insurance for workers’ compensation benefits.

After hearing the testimony of Saladworks’ administrator, the WCJ granted Saladworks’ Motion to Dismiss/Strike the Joinder Petition, as the WCJ found the administrator’s testimony to be credible, further finding that Saladworks, as the corporate franchisor had no direction or control over individual franchisee’s employees, as direction and control was reserved for the franchisee location.

Not surprisingly, the UEGF appealed the denial of its Joinder Petition, arguing that Saladworks should have been considered to be the Claimant’s statutory employer, an argument that the Workers’ Compensation Appeal Board agreed with, reversing the Judge’s denial of the Joinder Petition, with the Appeal Board finding that the Pennsylvania Supreme Court’s Decision inSix L’s applied to the case at hand, and that notwithstanding that Saladworks did not own or occupy the premises where the Claimant was injured, Saladworks could nevertheless be held liable as the Claimant’s statutory employer, based upon the franchisee, G21, being uninsured for workers’ compensation benefits.

So holding, the Appeal Board held that Saladworks’ Franchise Agreement imposed upon it the contractual obligation to insure that G21 carried the appropriate workers’ compensation insurance coverage, to protect Saladworks from liability, and to insure coverage for work-related injuries to franchisee employees.

Concluding that Saladworks had not fulfilled its contractual obligation under its Franchise Agreement, the Appeal Board held that “the purpose of the statutory employer doctrine is to place responsibility for payment on the first entity in a contractor chain when an injured employee’s direct employer, subcontractor, fails to secure workers’ compensation insurance … our determination that Saladworks is a statutory employer supports that purpose as well as the humanitarian purposes of the Act.”

Time for another epistle from the Princess Bride, with Princess Buttercup, again confronting dire circumstances, as she did throughout the movie, blurted out: “We will never survive”; to which the Man in Black, ultimately cool no matter how desperate things looked, rebutted quietly with “Nonsense, you are only saying that because no one ever has before.”

As indicated earlier, Six L’s was a landmark ruling by the Pennsylvania Supreme Court in 2012, as it significantly expanded the previously-held scope of what a “statutory employer” might be under the Pennsylvania Workers’ Compensation Act.

Prior to Six L’s, the status of being a “statutory employer” under the Pennsylvania Workers’ Compensation Act was seemingly controlled by the Pennsylvania Supreme Court’s Decision inMcDonald v. Levinson Steel Company, 153 A.424 (Pa. 1930), setting forth the following conditions necessary to establish “statutory employment”, including:

·         That a contractor had a contract with a property or premises owner;

·         That the contractor under contract with the property owner was occupied and was in control of the premises where the work injury took place;

·         That the contractor entered into a subcontract with a subcontractor;

·         That the contractor entrusted a part of his regular business to the subcontractor; and,

·         That the injured employee was an employee of the subcontractor, whether insured or uninsured.

In Six L’s, the employee seeking workers’ compensation benefits was an injured truck driver, employed by an independent contractor, with the Claimant’s injury occurring on a public highway, not on premises owned or controlled by the contractor that had contracted with the subcontractor, the Claimant’s employer, with the WCJ, finding that theMcDonald “statutory employer” test had been satisfied, such that the contractor hiring the subcontractor was the Claimant’s statutory employer under Section 302(a) of the Act, as that provision provides:

“Any employer permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employee or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employee or contractor, if primarily liable for the payment of such compensation, secured the payment thereof, as provided for in this act.”

Notwithstanding the WCJ’s Decision in Six L’s being overturned and reversed by the Appeal Board, the Judge’s Decision was then affirmed by both the Commonwealth Court, and by the Pennsylvania Supreme Court, which held that theMcDonald test did not apply to Section 302(a) of the Act.

Turning back to Saladworks, the Commonwealth Court determined that UEGF’s appeal was predicated upon whether the work performed by G21, the franchisee, under the Franchise Agreement was a regular or a recurrent part of the business, occupation, profession, or trade of Saladworks, the franchisor.

However, the Commonwealth Court ruled in Saladworks, that Saladworks’ main business was the sale of franchises to franchisees, in the course of which its corporate trademark and systems, as well as marketing expertise, were utilized by the franchisees.  Although Saladworks provided certain services to independent franchisees like G21, it was not in the restaurant business, nor was it in the business of selling salads, as its business was limited to selling franchises to franchisees.

For those reasons, the Commonwealth Court held that Six L’s was inapplicable to the facts inSaladworks, and that the Claimant was not, therefore, an employee of Saladworks, such that the Judge’s denial and dismissal of the UEGF’s Joinder Petition was correctly decided based upon the evidence presented by Saladworks as to its business operations as a franchisor licensing franchises to franchisees.

Illustrative, yes.

Important for what reason?

Well, first, it represents a rare instance in which the UEGF was turned away from deflecting liability against it, utilizing tangential evidence that another party should be held liable as a statutory employer of a Claimant seeking workers’ compensation benefits for a work-related injury while working for an uninsured employer.

This Decision also represents an appellate wall, potentially unscalable in affirming the separation of the contractual rights and responsibilities between a franchisor and a franchisee, in terms of secondary liability for workers’ compensation coverage and claims.

No less true, it provided an opportunity to link in unrelated and quixotic quotes from one of our favorite movies,The Princess Bride (1987).

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.

 TRUCK DRIVER’S GUIDE TO PENNSYLVANIA  EXTRA-TERRITORIALISM FOR WORKERS’ COMPENSATION

By Kevin L. Connors, Esquire

“We demand rigidly defined areas of doubt and uncertainty!”  Hitchhiker’s Guide to the Galaxy.

A recent decision by the Pennsylvania Commonwealth Court addresses the issue of extra-territorial jurisdiction when employment is not principally localized in Pennsylvania. 

The case was decided by the Pennsylvania Commonwealth Court on September 15, 2015.

The case is William Watt v. WCAB (Boyd Brothers Transportation).

The Claimant appealed decisions by the Workers’ Compensation Judge and the Appeal Board, denying and dismissing the Claimant’s Claim Petition for lack of jurisdiction under the Pennsylvania Workers’ Compensation Act, as the Claimant challenged the WCJ’s findings that his employment was not principally localized in Pennsylvania. 

The Claimant also argued that his employment contract, which stated that his employment was principally localized in Alabama (Go Crimson Tide!), was unenforceable and against public policy, further arguing that Section 305.2(d)(5) of the Workers’ Compensation Act, which is the Section dealing with extra-territorial jurisdiction for worker’s compensation claims, was unconstitutional.

“Don’t panic, and always carry a towel,”  Hitchhiker’s Guide to the Galaxy.

The Commonwealth Court affirmed the decisions of both the Appeal Board and WCJ, denying the Claimant’s Claim Petition on jurisdictional grounds.

By way of background, the Claimant was an interstate truck driver, employed by Boyd Brothers Transportation, and he alleged that he sustained a work injury in New Jersey.

Filing a Claim Petition seeking workers’ compensation benefits under the Pennsylvania Workers’ Compensation Act, the Employer’s Answer to the Claim Petition denied jurisdiction for the claim in Pennsylvania, and it was further denied that the Claimant was either injured or hired in Pennsylvania, averring that the Claimant was already receiving workers’ compensation benefits under Alabama’s workers’ compensation laws, pursuant to the terms of the Claimant’s employment contract with Boyd Brothers.

In support of his Petition, the Claimant testified that he was employed as a truck driver for Boyd Brothers in 2010 and 2011, sustaining a work injury while untarping a cargo load on April 12, 2011.

The Claimant then began receiving workers’ compensation benefits through Alabama’s workers’ compensation system for injuries to the Claimant’s right shoulder, right arm, and right hand.

Testifying that he was a Pennsylvania resident, the Claimant testified that he had completed an online application for employment with Boyd Brothers, while using his personal computer in Pennsylvania.   He then passed a driver’s test, obtaining a CDL license, with the Claimant being contacted by telephone by an Employer representative, scheduling the Claimant for orientation in Ohio.

The Employer representative advised the Claimant that he would be paid $400.00 per week during orientation and training, with the Claimant then receiving an e-mail confirming that he was accepted into the orientation program for Boyd Brothers.

Attending driver orientation in Ohio, the Claimant was put through training and various tests, with the Claimant also being presented with a document titled “Workers’ Compensation Agreement” which the Claimant gleefully signed. 

After completing his orientation, the Claimant returned to Pennsylvania, after which he began working as a long haul truck driver for Boyd Brothers.

Testifying that over the course of his employment with Boyd Brothers, the Claimant had kept daily logs of his trips, as required by DOT regulations, the Claimant testified that he only drove in the state of Alabama on four occasions, with the Claimant calculating that he had driven a total of 35,124 miles while employed by Boyd Brothers, with the Claimant testifying to the following state-specific mileage:

·         6,196 miles in Pennsylvania;

·         5,031 miles in Virginia;

·         4,689 miles in Ohio;

·         2,346 miles in Tennessee; and,

·         Lesser amounts in 22 other states.

The Claimant testified that he accumulated a total of 678.25 hours driving truck for Boyd Brothers, calculating that his state-specific driving hours were:

128 hours driving in Pennsylvania;

80.75 hours driving in Ohio;

64.75 hours driving in Virginia;

42 hours driving in Tennessee;

37 hours driving in Maryland;

34.75 hours driving in West Virginia;

33.5 hours driving in Indiana;

31.25 hours driving in Texas; and,

Lesser amounts of hours driving in 18 other states.

Opposing the Claimant’s Petition, the Employer presented extensive documentary evidence, including the signed WC Agreement, which stated that all workers’ compensation claims would be administered from Boyd Brothers administrative offices in Clayton, AL, and that workers’ compensation claims would be subject to the laws of the State of Alabama.

Before the workers’ compensation Judge, the Claimant and Boyd Brothers oddly enough stipulated that all workers’ compensation claims would be governed by the workers’ compensation laws of the State of Alabama, and that the Claimant’s employment was principally localized within the state of Alabama, as the company’s principal place of business was in Alabama.

Opposing Claimant’s Petition, testimony was presented by an Employer representative, a student recruiter, and from the director of recruiting, with all testifying that a prospective driver would not be officially hired until they had cleared orientation.  Orientation required a prospective driver to pass a road test, a physical agility test, a drug test, and other written tests, over a period of five days of orientation.

Evidence was then presented that the Claimant’s employment began with Boyd Brothers when the Claimant completed orientation, and that his date of hire was recorded as November 24, 2010.

Testimony was also presented from an Employer representative, responsible for managing the Claimant’s orientation, that the Claimant had been read and explained the terms of the WC Agreement during the orientation process, for purposes of establishing that worker’s compensation claims would be administered through the laws of the State of Alabama.

An Employer representative was also present to testify as to the Claimant’s mileage, for the period that he was employed, from November 29, 2010 through April 9, 2011, with it being calculated that the Claimant had driven 34,581 miles for Boyd Brothers, with the state-specific mileage being broken down as follows:

·         50.35.9 miles in Virginia;

·         4,721.4 miles in Ohio;

·         4,010.6 miles in Pennsylvania;

·         2,301.1 miles in Tennessee;

·         2,032.8 miles in Maryland; and,

·         Lesser amounts in 21 other states in the District of Columbia.

In denying the Claimant’s Claim Petition, the WCJ found the testimony of the Employer witnesses to be “competent, credible, and worthy of belief,” with their testimony being accepted as to the Employer’s policies and procedures in recruiting, testing, and hiring drivers for employment.

Reviewing the evidence of record, the WCJ, found that the Claimant had sustained a work injury in the course of his employment in New Jersey, although the Claimant was working under a contract of hire entered into in Ohio, and that the Claimant and Boyd Brothers had agreed, under the WC Agreement, that the Claimant was provisionally hired in Alabama, and that his employment was principally localized in Alabama, with the WCJ holding that he was “constrained to find as fact that Claimant’s employment was principally localized in the State of Alabama,” for purposes of determining the Claimant’s eligibility for worker’s compensation benefits under the Pennsylvania Workers’ Compensation Act.

So holding, the WCJ concluded that he lacked jurisdiction over the Claimant’s Claim Petition, denying and dismissing the Claim Petition on jurisdictional grounds. 

The WCJ’s decision was affirmed by the Appeal Board, with the Claimant appealing to the, Commonwealth Court, in the course of which the Claimant argued that his employment was principally localized in Pennsylvania, because he lived in Pennsylvania, and because he worked in Pennsylvania more than in any other state. 

He also argued that the WC Agreement’s choice of law provision was unenforceable, with the Claimant alleging that it violated public policy.

Not to be outdone with speechless arguments, the Claimant also argued that Section 305.2(d)(5)(d) the Act, dealing with extraterritorial jurisdiction over workers’ compensation claims, was unconstitutional, and that the provision violated the Full Faith and Credit Clause of Article IV of the U.S. Constitution.

Addressing the appellate arguments raised by the Claimant, the Commonwealth Court, in an opinion authored by Judge Simpson, noted that the issue of whether employment is “principally localized,” in this or another state, is dependent on:

“(i)  if it was his employer’s place of business in this or such other state and he regularly works at or from such place of business, or (ii) having worked at or from such place of business, his duties have required him to go outside of the State not over one year, or (iii) If clauses (1) and (2) foregoing are not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.”

Section 305.2(d)(4).

Seeking benefits under this Section of the Act, a Claimant must show that he worked from Pennsylvania “as a rule, not as the exception,” in order to establish that employment is principally localized in Pennsylvania. Atkins v. WCAP, 651 A.2d 694 (Pa. Cmwlth. 1994).

Arguing that his employment was principally localized in Pennsylvania under clause (iii) of Section 305.2(d)(4), the Claimant argued that he spent a substantial part of his working time for Boyd Brothers in Pennsylvania.

In support of that argument, he argued that he maintained his trusty truck in Pennsylvania, and that he was occasionally dispatched by Boyd Brothers from his home in Pennsylvania. 

“Would it save you a lot of time if I just gave up and went mad now?” Hitchhiker’s Guide to the Galaxy.

Contrary to Claimant’s arguments, the Commonwealth Court held that the Claimant’s evidence did not support findings that the Claimant spent “a substantial part of his working time” in Pennsylvania, as the Commonwealth Court drew a pie chart, based on the WCJ’s findings with regard to the Claimant’s state-specific mileage, evidencing that the Claimant only spent a fraction of his total time in miles in Pennsylvania, as his mileage in time of Pennsylvania only represented 17% of his total time driving as a long haul truck driver for Boyd Brothers. 

While the 17% was greater than any other single state, in terms of time and mileage, the Commonwealth Court did not conclude that the Claimant spent a “substantial part of his working time” in Pennsylvania, holding that the Claimant, comparatively speaking, only spent a relatively small percentage of his time in Pennsylvania compared to some of the other high totaling states, such as Virginia and Ohio.

Stating otherwise, the Commonwealth Court held that the Claimant did not work from Pennsylvania “as a rule”, such that the WCJ did not err in concluding that Claimant’s employment was not “principally localized” in Pennsylvania.

Further arguing that the WC Agreement constituted a waiver of his statutory rights under the Pennsylvania Workers’ Compensation Act, which will not permit an agreement between an employer and an employee to diminish the applicability of the act, or to limit a Claimant’s entitlement to workers’ compensation benefits, the Claimant argued that the WC Agreement violated public policy, being the humanitarian objectives of the Act, and that it was unenforceable as a matter of law.

Eviscerating the Claimant’s public policy argument, the Commonwealth Court held that when an injury occurs outside the territorial limits of Pennsylvania, as was the case inWatt, such an agreement between an employee and employer is enforceable, provided the parties agree that the employment is, as the Claimant and Boyd Brothers had agreed, was principally localized in a state other than Pennsylvania in the course of entering into such an agreement as to jurisdiction.

As for the enforceability and constitutionality of the WC Agreement, the Commonwealth Court held that there is a distinct difference between claims involving injuries that occur in Pennsylvania, and claims that involve injuries occurring in other states, as Pennsylvania typically does not allow the parties to “overcome the Act’s coverage pertaining to a subsequent, in-state injury,” through the use of a choice-of-law agreement, when an employee’s job duties require interstate travel. McIlvaine Trucking Company v. WCAB, 810 A.2d 1280 (Pa. 2002); Neff, Inc. v. WCAP, 624 A2d 727 (Pa. Cmwlth. 1993).

Holding that the WC Agreement did not abridge the Claimant’s rights under the Pennsylvania Workers’ Compensation Act, or otherwise violate public policy, the Court held that the WC Agreement must be given full force and effect, and that the WCJ had not erred in relying upon the WC Agreement, in finding that the Claimant’s employment was, in fact, principally localized in Alabama.

With the Claimant arguing that Section 305.2(d)(5) of the Act was unconstitutional, claiming that it violated the Full Faith and Credit Clause of the U.S. Constitution, the Commonwealth Court dismissed the Claimant’s constitutional argument, finding that the Employer’s corporate headquarters and principal place of business in Alabama constituted sufficiently significant contacts that application of Alabama law to the Claimant’s workers’ compensation claim was neither unfair nor unexpected, particularly when the  Claimant’s employment was not principally localized in Pennsylvania, and the Claimant’s injury had not occurred in Pennsylvania.

For those reasons, the Commonwealth Court found that there was no constitutional problem with the parties haven chosen that the workers’ compensation laws of Alabama would govern the Claimant’s workers’ compensation claim, as opposed to Pennsylvania law.

Dismissing Claimant’s appeal, the Commonwealth Court held the Claimant was not entitled to benefits in Pennsylvania for an extraterritorial injury, as the Claimant had been unable to prove that his employment was principally localized in Pennsylvania. 

His appeal was also denied on grounds that the WC Agreement determined that the Claimant’s employment was principally localized in Alabama, and that the WC Agreement was in full conformity and compliance with Section 305.2(d)(5) of the Act, and was not violative of public policy.

Moreover, the constitutional argument advanced by the Claimant was rejected by the Commonwealth Court, finding that the WCJ had given the WC Agreement full force and effect, in determining that Pennsylvania lacked jurisdiction over the Claimant’s workers’ compensation claim.

“Time is an illusion.  Lunchtime doubly so.”  Hitchhiker’s Guide to the Galaxy;highly recommended for existential orientation by the undersigned.

What are our takeaways from this case?

First, given the mobility of the trucking and logistics industries, routinely crossing state lines, agreements between employers and employees, as to where the employment is “principally localized,” can be enforceable, under Pennsylvania law, so long as the employee is not injured in Pennsylvania, as, in that instance, Pennsylvania will assert jurisdiction over a workers’ compensation claim.

Another takeaway is that such jurisdictional agreements will survive challenges as to enforceability and constitutionality, absent a different ruling by the Pennsylvania Supreme Court, with it being anticipated that the Supreme Court will affirm the Commonwealth Court, in the course of denying any appeal that might be taken by the Claimant in this matter.

“For a moment, nothing happened.  Then, after a second or so, nothing continued to happen,” our final citation from Hitchhiker’s Guide.

ConnorsO’Dell, LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

PENNSYLVANIA EDITS IMPAIRMENT RATING EVALUATIONS

By Kevin L. Connors, Esquire

“We cannot solve our problems with the same thinking we used when we created them”, citing Albert Einstein.

On September 18, 2015, the Pennsylvania Commonwealth Court invalidated an Impairment Rating Evaluation that had been conducted under Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, concluding that the Impairment Rating Evaluation at issue was invalid, as the IRE had been conducted under the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment, when the IRE was not conducted in reliance upon the “most recent edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment’’, when the “most recent edition” of the AMA Guides, when Section 306(a.2) of the Act was enacted, in 1996, was the Fourth Edition, not the Sixth Edition, which is the most current, or, if using English literally, is the “most recent” edition of the AMA Guides.

WTH?

The case decided by the Commonwealth Court was Protz v. WCAB, decided on September 18, 2015.

The Opinion was written by the President Judge, Pellegrini.

The undisputed facts were that the Claimant was injured in 2007, that her injury involved an injury to her right knee, that she initially received temporary compensation benefits, followed by a suspension of compensation benefits when she returned to work, and a subsequent reinstatement of her workers’ compensation benefits, due to a recurrence of her work injury.

Consistent with Section 306(a.2), the Employer requested that an IRE physician be designated, with the designated IRE physician then finding that the Claimant’s Impairment Rating was 10%, in reliance upon the Sixth Edition of the AMA’s Guides to the Evaluation of Permanent Impairment.

A prior IRE of the Claimant, performed in 2009, resulted in the determination that the Claimant had not reached maximum medical improvement, with the Employer filing a Notice of Change after the Claimant’s second IRE in 2011.

In response to the Notice of Change, the Claimant filed a Petition to Review, claiming that her injury had been incorrectly described, as well as challenging the unilateral conversion of her temporary total disability benefits.

The Claimant’s Review Petition was ultimately granted, with the Workers’ Compensation Judge finding that the Employer was not entitled to automatically convert the Claimant’s total disability benefits to partial disability benefits, resulting in the Notice of Change being set aside.

The Employer then filed a Modification Petition, seeking to convert the Claimant’s temporary total disability benefits to temporary partial disability benefits.

The Employer’s Petition was ultimately granted by the Workers’ Compensation Judge, finding the Claimant’s Impairment Rating was less than 50%, resulting in the Claimant’s compensation benefits being converted from temporary total to temporary partial disability benefits.

The Claimant appealed that Decision to the Appeal Board, with the Appeal Board affirming the Judge’s Decision, finding that constitutionality challenges to Section 306(a.2) had been addressed by the Commonwealth Court inJohnston v. WCAB, 982 A.2d 1253 (Pa. Cmwlth. 2009), in which it had been determined that the Claimant’s constitutional rights to due process were not violated by IRE procedures.

The Claimant next appealed to the Commonwealth Court, challenging the constitutionality of Section 306(a.2) of the Act, arguing that it was an unconstitutional delegation of legislative authority.

In support of Claimant’s constitutional challenge, the Claimant argued that the “most recent” edition of the AMA Guides was the Fourth Edition when the Act was amended to allow IREs, and that the AMA Guides had undergone two revisions since the Fourth Edition, with each subsequent edition providing substantially different standards than those set forth in the Fourth Edition, potentially resulting in Claimants, who would have been considered more than 50% impaired under the Fourth Edition, to be less than 50% impaired under the Sixth Edition.

Arguing in support of the validity of the IRE, the Employer argued that the constitutional challenge argument had already been previously addressed by prior Court Decisions, which had decided that Section 306(a.2) did not constitute an unlawful delegation of legislative authority under Stanish v. WCAB, 11 A.3d 569 (Pa. Cmwlth. 2010), as well as underWingrove v. WCAB, 83 A.3d 270 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 (Pa. 2014).

Determining that the Legislature had failed to prescribe any intelligible standards to guide the AMA’s determination regarding the methodology being used in grading impairment under Section 306(a.2), with the Commonwealth Court finding that Section 306(a.2) was “wholly devoid of any articulations of public policy governing the AMA in this regard and of adequate standards to guide and restrain the AMA’s exercise of this delegated determination by which physicians and WCJs are bound”, the Commonwealth Court held that Section 306(a.2) only requires IREs to be conducted under the “most recent version of the AMA Guides”, in the course of determining a Claimant’s Impairment Rating, and the Court found, in reliance upon that basis alone, that Section 306(a.2) of the Act was unconstitutional, resulting in the IRE in Protz being invalidated.

Determining that Section 306(a.2) lacked a mechanism requiring governmental review of the Guides with the promulgation of supporting regulations, the Commonwealth Court determined that the delegation of Legislative/regulatory authority, in terms of which Impairment Rating Standards should be utilized, was being referred to a private party, the AMA, and not to a governmental agency, in violation of constitutional requirements.

So holding, the Commonwealth Court has issued the following ORDER:

                        “AND NOW, this 18^th day of September, 2015, upon finding Section 306(a.2) of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736,as amended, 77 P.S. §511.2, added by the Act of June 24, 1996, P.L 350, an unconstitutional delegation of legislative authority insofar as it purports to adopt a new version of the American Medical Association’sGuides to the Evaluation of Permanent Impairment (Guides), the order of the Workers’ Compensation Appeal Board dated May 22, 2014, in the above-captioned case is vacated.  This matter is remanded to the Workers’ Compensation Appeal Board with instruction to remand further to the Workers’ Compensation Judge to apply the Fourth Edition of theGuides in effect when the provision was enacted in adjudicating Derry Area School District’s petition to modify benefits.

                        Jurisdiction relinquished.”

Yes, there was a Dissent, authored by Judge Simpson.  The Dissent argues that the General Assembly delegated initial Impairment Ratings to independent, Pennsylvania-licensed, board-certified, and clinically-active physicians, with the ultimate resolution of the impairment rating issues being determined by impartial Workers’ Compensation Judges after a full adjudicative process.

That is not the complete picture, but certainly one that we would be happy to continue living under.

Judge Simpson’s Dissent begins with the premise that “legislative enactments enjoy a strong presumption that they do not violate the Constitution”, underWingrove.

In reliance thereupon, Judge Simpson argues that the General Assembly delegated the initial determination of Impairment Ratings to impartial, Pennsylvania-licensed, board-certified, clinically-active physicians, and that the AMA itself does not participate in conducting Impairment Ratings under the Act.

Moreover, the General Assembly had provided numerous standards to guide Impairment Rating decisions made by physicians, of which one standard was the most recent edition of the AMA Guides.

For that reason, Judge Simpson did not believe that the legislative deference to the AMA’s professional expertise in periodically updating complex medical standards in the AMA’s Guides amounted to an unconstitutional delegation of legislative power, such that the updated editions should have been legally sufficient to support determinations made by impartial physicians conducting Impairment Rating Evaluations.

No less true, when the Employer must litigate a Modification Petition to support converting the Claimant’s disability benefit status from temporary total to temporary partial disability benefits, the Impairment Rating is simply evidence, in a proceeding ultimately determined by an impartial Workers’ Compensation Judge, concerning impairment issues.

As such, the issue of impairment is a disputed issue, subject to controverting evidence.

A second Dissenting Opinion is authored by Justice Covey, who also did not believe that the Majority had correctly invalidated the IRE inProtz, as Covey argued that the Majority’s Decision directly contradicted and effectively overruled anen banc Decision by the Pennsylvania Commonwealth Court in Pennsylvania Builders Association v. Department of Labor and Industry, 4 A.3d 215 (Pa. Cmwlth. 2010), wherein it was held that the General Assembly would not be expected to enact laws that would keep abreast of every advance in science and invention, as that is an unreasonable burden to impose upon the General Assembly.

So, what do you do now?

Well, in all likelihood, any IREs that are in the pipeline, are ones that were conducted under the Sixth Edition of the AMA’s Guides, because that is what everyone has been doing, as more recent Editions of the AMA’s Guides have come out, the “more recent” Guides have been the ones that have been used by the IRE-designated physicians to conduct IREs.

Who knew?

Well, with kudos to Claimant’s Counsel for a clever procedural argument in Protz, the presumption is that the Protz Decision will be appealed to the Pennsylvania Supreme Court, with it being expected that the Commonwealth Court will be overturned, with the Supreme Court holding that the “most recent edition” is actually what it sounds like, the last in time.

If that is the case, then invalidated IREs under Protz become validated IREs.

In the interim, the Protz Decision would at least support the argument that any IREs to be conducted prior to the Pennsylvania Supreme Court overturningProtz should be done in reliance upon the Fourth Edition, not the Sixth Edition, of the AMA’s Guides, but who actually knows?

At least for the immediate future, until this issue is resolved by the Pennsylvania Supreme Court, theProtz Decision clearly seems to mandate that the validity of an IRE is dependent upon it being conducted in reliance upon the Fourth Edition, and not the Sixth Edition, of the AMA’s Guides.

Who knows if the Fourth Edition is still even available to IRE physicians?

“Those are my principals, if you don’t like them… well, I have others”, citing Groucho Marx.

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.

PENNSYLVANIA’S VALIDATION OF AN IMPAIRMENT

RATING EVALUATION (IRE)

By

Kevin L. Connors, Esquire

            “Facts are meaningless.  You could use facts to prove anything that’s even remotely true.”  Homer Simpson.

            A recent Decision by the Pennsylvania Commonwealth Court in Duffey v. WCAB (6/26/15), recently resulted in the Court, in an Opinion authored by Judge Cohn Jubelirer, validating an Employer Impairment Rating Evaluation that was the Claimant sought to invalidate by alleging that the IRE had not considered all of the Claimant’s work-related injuries, as the Claimant argued, thankfully unsuccessfully, that the IRE, which had considered the Claimant’s accepted work-related injuries in the course of determining the Claimant’s impairment rating under the AMA’s Guides, resulting in a conversion of the Claimant’s temporary total disability benefits (lifetime absent death, or change in medical condition effectuating full recovery or ability to return to available work), to temporary partial disability benefits (capped at 500 weeks), had not taken into account the medical opinion of treating physicians who testified that the Claimant was suffering from post-traumatic stress disorder as a result of the work injury.

            With the above sentence seemingly setting a syntactical record for inconsequentially-related phrases, it would be simple enough to leap to the end point, being that the Commonwealth Court affirmed the underlying Decision of the Appeal Board (charged with the first level of appeals of comp claims in Pennsylvania), reversing the underlying Decision of the Workers’ Compensation Judge, who had invalidated the Employer’s IRE, which preceded the employer filing a Notice of Change, converting the Claimant’s temporary total disability benefits to temporary partial disability benefits, in reliance upon the testimony of the Claimant’s treating physicians, that the Notice of Compensation Payable, describing the Claimant’s originally-accepted work-related injury, should be amended to include the newly-adjudicated injury of post-traumatic stress disorder.

            No doubt, another run for your money piecing together the above paragraph.

            In any event, this is an important Decision since it fixes the effective timeline for validating an IRE used by an Employer to mitigate the potential lifetime exposure for temporary total disability benefits into the more limited exposure of 500 weeks for temporary partial disability benefits, still representing a significant chunk of time in both the life of the Claimant and the workers’ compensation claim, as it represents 9.6 years during which an injured Claimant might still be entitled to receive indemnity workers’ compensation benefits for wage loss.

            Like Homer, ready for a few facts?

            It begins with the March 6, 2009 injury of the Claimant, who injured his hands, when picking up hot wires while working for Trola-Dyne, Inc.  This occurred while the Claimant was repairing a machine for his employer.

            In the course of accepting the Claimant’s injuries as being work-related, the employer issued a Notice of Compensation Payable (NCP), under which the Claimant’s injuries were described as “bilateral hands, electrical burn, stripping some electric wires”.

            The same description always tugs at the inherent conflict between exclusion versus inclusion, as descriptions that focus on body parts as opposed to medical diagnoses are almost always vulnerable to future enlargement and expansion, with the practical tip being to avoid use of describing injuries in terms of body parts, as opposed to describing the work injuries in terms of reasonable medical diagnoses.

            With the issuance of the NCP, the Claimant began receiving his temporary total disability benefits for wage loss, with the employer requesting an IRE under Section 306(a.2)(1) of the Act after the Claimant had received 104 weeks of wage loss benefits.

            Requesting an IRE, the employer described the Claimant’s work injuries as “bilateral hands-nerve and joint pain”, which, technically, was already expanding the description of injury under review by the IRE, with the IRE resulting in a determination that the Claimant had a 6% impairment rating, in terms of the work injuries, resulting in his compensation benefits being converted from the lifetime temporary total disability benefits to the partial disability benefits subject to the 500 week cap under Section 306(b).

            Challenging the conversion of his compensation benefits, the Claimant filed a Review Petition, alleging that the IRE was invalid, as it had not included a complete description of injury, since the Claimant alleged that the IRE should have also considered the Claimant’s post-traumatic stress disorder, although that injury had never formally been accepted as compensable and work-related by the employer, nor had there been any litigation adjudicating a determination that the Claimant’s PTSD was related to his 2009 work injury.

            Conflicting medical testimony was then presented by the parties, in support of and in opposition to the Claimant’s Review Petition, with the Claimant’s physicians testifying that the PTSD was related, and the employer’s medical expert testified that the PTSD was not related, as well as that the Claimant was fully recovered from that diagnosis.

            Finding in favor of the Claimant, the WCJ granted the Claimant’s Review Petition, amending the description of injury to include the PTSD diagnosis, as well as invalidating the IRE, on grounds that the IRE had not considered the Claimant’s PTSD.

            Appealing the WCJ’s Decision, the employer was successful in convincing the Appeal Board to reverse the WCJ’s Decision, with the Board finding the IRE to be valid as the Claimant had never formally sought to amend the NCP to include the diagnosis of PTSD and depressed mood, and the WCJ had accepted the testimony of the IRE physician that the Claimant was at MMI as of the IRE, requiring the IRE to be valid when performed.

            Petitioning for review before the Commonwealth Court, the Claimant again argued, as he had before the WCJ, that the IRE failed to consider all of his work-related injuries, as the PTSD had not been considered, with the employer countering that acceptance of the Claimant’s argument would essentially eviscerate the IRE provisions of the Act, as Claimants could always challenge IRE determinations on grounds that the IRE failed to consider injuries never formally accepted or adjudicated as being work-related, although they might be injuries of an overlay nature, as was the case in Duffey.

            In the course of affirming the Appeal Board’s determination that the IRE had been valid, based upon the Claimant never challenging the accepted description of injury prior to the IRE and the Claimant being at MMI in terms of work injuries as of the IRE being performed, the Court determined that both the statutory language and IRE legal precedents required the validity of an IRE to be dependent upon two factors, one being the Claimant’s medical state, whether at MMI or not, when the IRE is performed, as well as, secondarily, the IRE focusing in on the injuries that were determined to be work-related, whether described on an NCP, or determined in a Decision issued by a WCJ.

            Relying upon Westmoreland Regional Hospital v. WCAB, 29 A.3d 120 (Pa. Cmwlth. 2011), the Court held that “the IRE produces a snapshot of the Claimant’s condition at the time of the IRE, not a survey of the Claimant’s work-related injuries over a period of time”.

            For that reason, the Duffey Court held that the validity of the IRE is determined by “the Claimant’s physical condition at the time of the IRE”.

            The Court also ruled that it interpreted Section 306(a.2) of the WCA to not infer that the General Assembly intended to nullify performed and otherwise valid IREs, being challenged with claims of new or additional injuries not considered by the IRE physicians.

            This ruling does not necessarily foreclose Claimant’s from challenging the conversion of their compensation benefit status from total disability to partial disability, if Claimants obtain impairment ratings of at least 50% under the AMA Guides.

            Holding that an IRE that considers a Claimant’s work injury as defined and existing at the time the IRE is performed, to be valid notwithstanding an after-the-fact expansion of the scope of a Claimant’s work-related injury, the Court held that to find otherwise would be inconsistent with the WCA, and the Court’s own prior precedents.

            As Shakespeare might have said in Richard III, “My Kingdom, My Kingdom for an IRE!”

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.

TO NOTICE OR NOT TO NOTICE  UNDER THE PENNSYLVANIA WORKERS’ COMPENSATION ACT

By Kevin L. Connors, Esquire

“Just because I don’t care, doesn’t mean I don’t understand”, brilliantly drooled by Homer Simpson.

In the School District of Philadelphia v. the WCAB, in a Decision issued by the Pennsylvania Supreme Court on May 26, 2015, authored by Justice Baer, the Supreme Court was asked to decide whether Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act requires an Employer to provide an injured Employee with a written “Notice of Ability to Return to Work”, utilizing the State Form, identified as LIBC-757, before offering alternative employment where the injured Employee has yet to file a Claim Petition, and, therefore, has never formally proven entitlement to workers’ compensation.

Collectively holding our compensable breaths, the Supreme Court has unanimously held that the Notice provisions of Section 306(b)(3) requiring an Employer seeking to modify the workers’ compensation benefits of a Claimant based on medical evidence establishing that the injured Employee is able to return to work in some capacity, does not require the Employer to provide an injured Employee with Notice of their ability to work when offering alternative employment, when the compensability of the claim has not been established, either through acceptance of the claim, or through the Claimant filing a Claim Petition in the course of seeking workers’ compensation benefits.

This issue arose when the Claimant, Shirley Hilton, employed by the School District of Philadelphia, working as a second grade Teacher, in a School where the Claimant was routinely exposed to misbehavior, which included profanity and physical violence, forcing the Claimant to attempt to teach effectively by speaking louder than the classroom noise that she was attempting to talk over.

Completing an assignment on March 3, 2009, the children in the Claimant’s classroom became unruly, vandalized the room by knocking over desks and chairs, tore down educational charts, and ripped down a window shade.

These events were disturbing to the Claimant, who felt dizzy, could not eat, developed tension headaches, heart palpitations, and nausea.

Concluding school that day, the Claimant then went to a regularly-scheduled appointment with her primary care physician, Dr. Baugh, with the Claimant telling Dr. Baugh of the symptoms she experienced at School that day, also indicating that the anxiety that she was experiencing when working was more than she could bear (no relation to Justice Baer).

Dr. Baugh’s office then called the School District and advised that the Claimant would not be returning to work, due to her overly stressful environment.

Shortly thereafter, the Claimant was evaluated by the Employer’s work physician, Dr. Burke, who concluded that the Claimant could return to work at a regular job, at the School where she was working.  The Claimant did attempt to return to work, but only lasted four days, claiming that she could not continue to work under the stress that she experienced.

A Notice of Compensation Denial was then issued by the School District, denying the Claimant’s injury as being work-related, with the denial issued on May 29, 2009.

In June of 2009, the Claimant was then assigned to teach at a different School in the next Fall Semester.  The Claimant met with the Principal of that School, toured the facility, and found that the new School would be much less stressful, as the Students were quieter, and the Teachers were apparently able to teach the children effectively.

When the job was offered to the Claimant for the Fall Semester of 2009, the Claimant had not filed a Claim Petition, challenging the claim denial by the School District.

When School was ready to begin in September of 2009, the Claimant indicated that she could not begin employment at the new School, as she maintained that she was unable to return to teaching, because she was still under treatment for the symptoms that had arisen while she was working at the more-stressful School in March of 2009.

One month later, the Claimant filed her Claim Petition, alleging that she had developed stress from an abnormal working condition, and that she had sustained work-related injuries on March 3, 2009, to include a vocal cord injury, as well as aggravation of pre-existing lupus, and a heart murmur.  She claimed that her injuries rendered her totally disabled.

In response to the Claim Petition, the School District filed a timely Answer, denying all of the allegations in her Petition.

During the course of hearings before the Workers’ Compensation Judge, the Claimant testified to the events that caused her anxiety and stress, and she presented the testimony of her treating physician, Dr. Baugh.  The Employer presented the testimony of a medical Expert, Dr. Lamprakos.

Considering the evidence presented in support of and in opposition to the Claimant’s Claim Petition, the Workers’ Compensation Judge accepted the Claimant’s testimony regarding the conditions of her work environment at her old School, with there being no evidence presented to contradict the Claimant’s testimony regarding the behavioral problems of the Second Graders at that School. 

The WCJ also credited the Claimant’s testimony that the stressful work environment caused her physical symptoms, to include the heart palpitations, headaches, dizziness, and nausea, as well as reducing her voice to a whisper.

The WCJ also accepted the testimony of her treating physician, Dr. Baugh, that the Claimant was exposed to a stressful work environment, and that she had developed an exacerbation of her pre-existing lupus, as well as developing oral ulcers, nasal ulcers, and increased hyperpigmentation of her face.

However, the Workers’ Compensation Judge accepted the Employer’s Expert’s testimony that the Claimant’s stressful work conditions did not cause an exacerbation of her fibromyalgia.

In reliance upon the testimony of Dr. Baugh, the Claimant’s treating primary care physician, the WCJ concluded that the stress that the Claimant had been exposed to when teaching the misbehaving Second Graders resulted in the Claimant sustaining physical injuries, to include the exacerbated lupus, the vocal cord injury, and that those injuries rendered the Claimant totally disabled as of March 3, 2009.

So concluding, the Workers’ Compensation Judge awarded her benefits, although the WCJ found that Dr. Baugh’s testimony did not establish that the Claimant was generally disabled from working as a Teacher, but only that she was disabled from working in a classroom with children with significant behavioral problems, like those in the class that she had been teaching on March 3, 2009.

The WCJ then accepted the testimony of the Claimant, that she had been offered a position at a less-stressful School, suspending the Claimant’s compensation benefits as of when the Claimant could have begun working there under the School District’s job offer.

The Claimant then appealed the WCJ’s Decision to the Appeal Board, which affirmed in part, and reversed in part.  The Appeal Board reversed that portion of the WCJ’s Decision, which suspended the Claimant’s compensation benefits as of September 30, 2009, the date on which the Employer had provided the Claimant with a Notice of Ability to Return to Work, LIBC-757, pursuant to Section 306(b)(3) of the Act.

Section 306(b)(3) sets forth:

If the insurer receives medical evidence that the Claimant is able to return to work in any capacity, then the insurer must provide prompt written Notice, on a form prescribed by the Department, to the Claimant, which states all the following:

(i)                 The nature of the Employee’s physical condition or change of condition.

(ii)               That the Employee has an obligation to look for available employment.

(iii)             That proof of available employment opportunities may jeopardize the Employee’s right to receipt of ongoing benefits.

(iv)             That the Employee has the right to consult with an Attorney in order to obtain evidence to challenge the insurer’s contentions.

In reliance upon Section 306(b)(3) of the Act, the Appeal Board held that the Employer’s obligation to issue the Notice of Ability to Return to Work Form was mandatory, and that the School District’s failure to comply with the Notice provisions of Section 306(b)(3) during the pendency of the litigation of the Claimant’s Claim Petition precluded the WCJ from suspending the Claimant’s compensation benefits.

In essence, the Appeal Board concluded that there was insufficient evidence to establish that the Employer had provided the Claimant with the requisite Notice to meet the Employer’s threshold burden to modify the Claimant’s compensation benefits, in the form of suspending her benefits based upon available alternative work.

No surprise, the School District appealed the Appeal Board’s Decision to the Commonwealth Court, which, like the Appeal Board, affirmed in part, and reversed in part.

The Commonwealth Court affirmed the Appeal Board’s affirmation of the Claimant being awarded workers’ compensation benefits, although the Commonwealth Court held that the WCJ had properly suspended the Claimant’s compensation benefits because:  (1) Claimant established disability only until September 30, 2009, when the job at the new School was made available to her; and (2) The School District had no duty to issue a Section 306(b)(3) Notice to the Claimant under the facts presented.

Examining Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act, to determine whether an Employer is required to provide a Claimant with a Notice of Ability to Return to Work prior to offering alternative work, when the Claimant was not receiving workers’ compensation benefits at the time that the job was offered, the Supreme Court held that the plain language of Section 306(b)(3) reveals that the focus of the provision is upon the Employer’s receipt of medical evidence of a change in the nature of the Claimant’s physical condition and the Employer’s duty to apprise the Claimant of such evidence, but that this Notice prerequisite presumes that the work-related injury has caused a disability, and that the Claimant is receiving ongoing benefits for that compensable injury, in the course of which the Employer seeks to utilize medical evidence that it has obtained of a change in the Claimant’s physical condition enabling the Claimant to work in an order to reduce its existing liability by decreasing the amount of benefits that it might have to pay, absent work being available.

Concluding that it would be illogical to require an Employer to issue a Section 306(b)(3) Notice before an Employer has conceded the occurrence of a compensable injury, or a Claimant has proven his/her entitlement to workers’ compensation benefits, the Supreme Court held that “we agree with Employer that it does not have an obligation to disclose evidence of a change in Claimant’s physical condition at a time when her physical condition had yet to be determined.”

Moreover, the Court held that “to require Section 306(b)(3) Notice of the facts presented would place an unreasonable burden on Employers in cases where disability is contested and a Claimant has not yet established his/her entitlement to benefits.”

Characterizing its analysis of the legislative history behind Section 306(b)(3) as having been intended to speak to an Employer’s burden in a suspension proceeding, where the Employer seeks to suspend a Claimant’s compensation benefits based upon the Claimant having the ability to return to work, at work within the Claimant’s physical capabilities being available, the Supreme Court held that the Section 306(b)(3) Notice provision is not meant to impose a requirement upon Employers in all circumstances where alternative employment is being offered to an injured Employee. 

Distinguishing the Commonwealth Court’s Decision in Hoover v. WCAB, 783 A.2d 886 (Pa. Cmwlth. 2001), the Supreme Court held that theHoover Decision was not relevant to the issues before the Court, asHoover involved the Employer denying liability for the alleged work-related injury, but then offering the Claimant a light-duty position after the Claimant filed a Claim Petition, but prior to the Claim Petition being adjudicated, with the Commonwealth Court in Hoover having found that the Employer had failed to satisfy the Notice requirements under Section 306(b)(3), as the Commonwealth Court held that a Notice of Ability to Return to Work was required to have been issued prior to a suspension of compensation benefits, although the Hoover Court provided no analysis as to why it drew that conclusion, with the Supreme Court declining to adopt theHoover Court’s application of Section 306(b)(3) where an Employer has not accepted liability for the claim, and the Claimant has yet to prove entitlement to benefits.

Is this a distinction with a difference?

Absolutely yes!

It is relevant because the Supreme Court has now held in School District of Philadelphia v. WCAB that the Notice requirements of Section 306(b)(3), requiring an Employer to notify an injured Employee that their physical condition will allow them to return to work in some capacity, only comes into play when there has been a determination that the Claimant’s alleged disability is, in fact, work-related, which would require either an acceptance of the claim by the Employer, and/or an adjudication of the claim by a WCJ, establishing compensability of injury, and related disability.

Since neither had been established in the factual record presented to the Supreme Court inSchool District of Philadelphia v. WCAB, the Supreme Court held that the School District had no responsibility to issue the Section 306(b)(3) Notice of Ability to Return to Work, and that the evidence before the WCJ supported a suspension of the Claimant’s workers’ compensation benefits as of the date that the Claimant had been offered alternative work by the School District, being September 30, 2009.

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.

WHEN LATE IS NOT TOO LATE

By Kevin L. Connors, Esquire

“If you are going to do something tonight that you’d be sorry for tomorrow morning, sleep late”, sayeth Henny Youngman.

This is the story of the “Late Answer” to a Claim Petition that was not, just that, late.

In Patrick Washington v. WCAB (National Freight Industries, Inc.), the Commonwealth Court affirmed the Decisions of the Appeal Board and Workers’ Compensation Judge, denying the Claimant’s Claim Petition, in the course of which both the WCJ and Appeal Board dismissed Arguments by the Claimant that the Employer/Insurer’s Answer to a Claim Petition had been filed late, such that the Claimant, through counsel, sought to enforce a “Yellow Freight” Motion, under Section 416 of the Act.

Section 416 of the Act, sets forth:

“Within twenty days after a copy of any Claim Petition or other Petition has been served upon an adverse party, he may file with the department or its Workers’ Compensation Judge an Answer in the form prescribed by the department.

Every fact alleged in a Claim Petition not specifically denied by an Answer so filed by any adverse party shall be deemed to be admitted by him.  But the failure of any party or of all of them to deny a fact alleged in any other Petition shall not preclude the Workers’ Compensation Judge before whom the Petition is heard from requiring, of his own motion, proof of such fact.  If a party fails to file an Answer and/or fails to appear in person or by counsel at the hearing without adequate excuse, the Workers’ Compensation Judge hearing the Petition shall decide the matter on the basis of the Petition and evidence presented.”

Under a legion of Decisions involving Late Answers, and what to do with them, the controlling rule for Late Answers has always been, underYellow Freight v. WCAB (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981), that an Employer’s failure to file a timely responsive Answer to a Claim Petition, precludes the Employer from raising affirmative defenses to the Claim Petition, effectively resulting in a default being taken against the Employer, with all allegations in the Claim Petition being deemed admitted before the WCJ, although an unexcused Late Answer only admits “facts”, and does not admit any conclusions contained within the Claim Petition, with the fact admissions only being imposed as of the last date that the Answer could have been filed, underBensing v. WCAB (James D. Morrissey), 830 A.2d 1075 (Pa. Cmwlth. 2003).

The caveat to the above rule, is that when a Claim Petition alleges ongoing disability, a rebuttable presumption exists that the disability continued beyond the last day that the Answer could have been filed, requiring the Employer, in that scenario, to present rebutting evidence, in order to overcome the presumption of ongoing disability. Chik-Fil-A v. WCAB (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002).

So what is the big deal about the Washington ruling by the Commonwealth Court, a ruling that the Court issued on March 4, 2015.

Washington involved a Claimant employed by NFI, our client, who had worked as a Tractor Trailer Driver from 2007 through February of 2011.

In February 2009, the Claimant had been involved in an automobile accident unrelated to his employment with NFI, with the Claimant then pursuing a personal injury lawsuit against the driver of the vehicle that rear-ended the Claimant’s vehicle.

After missing a few days of work after the 2009 accident, the Claimant actually returned to work in a full-duty capacity with NFI, again returning to work as a Tractor Trailer Driver.

In 2011, the Claimant then stopped working for NFI, contending that he was no longer able to do his job because of pain in his shoulders, arms and hands, the same injuries, bizarrely, that the Claimant had alleged occurred as a result of the 2009 motor vehicle accident.

Undeterred by that coincidence, the Claimant filed a Claim Petition against NFI, alleging that he was entitled to recover workers’ compensation benefits as of the date that he stopped working for NFI, with the Claimant seeking both indemnity and medical compensation benefits.

The theory behind the Claimant’s Claim Petition against NFI was a repetitive trauma/aggravation theory, that the Claimant’s repetitive use of his neck, shoulders, arms, and hands, resulted in the Claimant developing an aggravation of his pre-existing accident-related injuries, with the Claimant alleging that he was now disabled by the alleged aggravation, such that he claimed entitlement to workers’ compensation benefits.

However, the Claim Petition filed by the Claimant contained an incorrect address for the Employer, as the Claimant’s Petition alleged an address of 72 West Park Avenue, in Vineland, New Jersey, although the Employer’s correct address was 71 West Park Avenue, Vineland, New Jersey.

After the Claimant’s Claim Petition was assigned to a WCJ, the Employer, yes through our firm, filed an Answer to the Petition, although it was forty-three (43) days after the Bureau had issued a Notice of Assignment, assigning the Claimant’s Claim Petition to a Workers’ Compensation Judge.

Over the course of Evidentiary Hearings held before the WCJ, the Honorable Joseph Stokes, the Claimant continued to argue that the Employer’s Answer was late, and that the factual allegations in the Claim Petition should be deemed admitted underYellow Freight, with the Claimant seeking an Order admitting the factual allegations set forth in the Claim Petition.

Although the Claimant referred to having made several Motions to impose the Draconian burden ofYellow Freight, the record contained no specific reference to a formal Motion being filed by the Claimant, nor did the issue appear to have been raised on the record at several hearings, at least until the final hearing before the Workers’ Compensation Judge, with the WCJ directing the parties to Brief the issue of whether the Employer’s Answer was, or was not, untimely, absent the parties agreeing to the issue.

Although there is no indication that the Claimant ever Briefed that issue for the WCJ, there was a Stipulation placed on the record that the Employer’s address was not the address on the Claim Petition, with the WCJ ultimately issuing a Decision denying the Claimant’s Claim Petition, finding that the Claimant’s testimony, as well as that of his Medical Expert, Dr. Scott Jaeger, was credible in terms of establishing that the Claimant had symptoms and injuries from his non-work-related accident, with the WCJ rejecting the Claimant’s testimony, and that of his Medical Expert, as to whether the Claimant’s work duties for the Employer, from 2009 through 2011, resulted in the Claimant having an aggravation of his non-work-related conditions.

So holding, the WCJ concluded that the Claimant had failed to establish his burden of proving that he was suffering from a work-related disability, with the WCJ never formally ruling on the Claimant’s Late Answer contention.

Appealing to the Appeal Board, the Claimant argued that the WCJ’s Decision contained a legal error, in failing to rule on whether the Employer’s Answer was late, with the Appeal Board affirming the WCJ’s denial of the Claim Petition, in the course of which it held that the Claimant had failed to show that the Employer’s Answer was late, as the Claim Petition had not been mailed to the Employer’s correct address, with the Appeal Board denying the Claimant’s request to remand the case back to the WCJ, to submit additional evidence concerning the address to which the Bureau had mailed the Claim Petition.

Addressing the Claimant’s Late Answer Appeal, the Commonwealth Court held that the Claimant had failed to prove that the Employer’s Answer was untimely, as it was undisputed before the WCJ, that the address used by the Bureau when mailing the Petition to the Employer was not the Employer’s correct address.

Applying the common law “mailbox rule”, akin to “the check is in the mail”, as well as the mandates of the Act, both of which dictate that a proof of mailing raises a presumption that the mailed item was received only if it is shown that the item was mailed to the parties’ correct address, the Appeal Board affirmed the WCJ’s Decision.  Section 406 of the Act:  In Re:  Rural Route Neighbors, 960 A.2d 856 (Pa. Cmwlth. 2008).

Sweetly stated, the “common law ‘mailbox rule’ raises a natural presumption that a letter will reach its destination through due course of mail when it is deposited in the Post Office with a properly-addressed letter with pre-paid postage”,  underStorer v. WCAB (ABB), 784 A.2d 829 (Pa. Cmwlth. 2001), in which the Commonwealth Court had held that a Claimant’s testimony that he mailed a letter, did not establish that notice was given where his testimony did not show,inter alia, “whether the letter was properly addressed”.

In Washington, the Commonwealth Court held that “under the Act, only a mailing to the parties’ correct address constitutes service on the date of mailing.”  Conversely, where a Claim Petition is mailed to an incorrect address, an Answer is not untimely simply because it was filed more than twenty days after that mailing, and Section 416 of the Act does not bar the Employer from denying and fully contesting all allegations of the Claim Petition, absent other evidence or proof that the Claim Petition was received more than twenty days before the Answer.

In Washington, the Bureau’s mailing to an incorrect address did not constitute service as to the date of mailing, and, therefore, there was no evidence submitted to the WCJ that the Employer had received the Claim Petition more than twenty days before filing its Answer, thereby allowing the WCJ to decide the Claim Petition on its merits, without deeming that any facts alleged in the Claim Petition had been admitted by the Employer.

An alternative Argument advanced by the Claimant was further rejected by the Commonwealth Court, in as much as the Claimant contended that the error in the mailing address of the Claim Petition should have been disregarded, as the Claimant alleged that the address to which the Claim Petition was addressed was a property allegedly owned by an Affiliate of the Employer, with the Commonwealth Court rejecting Claimant’s Argument for two big reasons, one being that no evidence was presented to the WCJ to prove the Argument being made by the Claimant, further rejecting the Argument on grounds that the service of a document on an address owned by an Affiliate of a Corporation, does not, in and of itself, constitute service on the Corporation itself underDelaware Valley Surgical Supply Company v. Geriatric & Medical Centers, 299 A.2d 237 (Pa. 1973).

The mere fact that one piece of mail sent to an erroneous address successfully reached a party after it knew that its mail was being sent to that address does not, again, in and of itself, support an inference that all mail sent to the erroneous address was promptly received by that party.

What are the takeaways from the Washington ruling?

First, and most obvious, is the takeaway of how well this case was defended by our firm.

No less true, without question, counsel defending workers’ compensation claims are never fans of the “Late Answer” Claim Petition, as the slippery slope of defending workers’ compensation claims only becomes that much steeper, when the issue of a potential Late Answer also becomes yet another element that needs to be defended in the course of seeking to prevent a claim from being accepted.

This becomes even more problematic in cases where the Employer has real defenses to the Claim Petition, with the most dramatic defenses being:

·                     Statute of Limitations;

·                     Notice Issues;

·                     The Claimant was not employed by the alleged Employer;

·                     The Employer is not insured by the Insurer listed on the Notice of Assignment;

·                     The Claimant is not disabled;

·                     The Claimant has no evidence to support any element of his claim;

·                     The alleged injury did not occur within the course and scope of employment;

·  &nnbsp;                  The alleged injury was caused by non-work-related conditions; and/or,

·                     The Employer/Insurer have been incorrectly designated.

An obvious takeaway is that an address is either correct, or incorrect, and that there is no presumption of receipt of an item that is improperly addressed, even if the mailed item is not returned to the Bureau, or is sent to an address physically close to the Employer’s actual location.

Obviously, this is an important Decision for Employers and Insurers, and we certainly encourage its utilization in the course of defending Late Answers to Claim Petitions.

A link to the Commonwealth Court’s Decision is included here http://www.pacourts.us/assets/opinions/Commonwealth/out/1070CD14_3-4-15.pdf?cb=1

Credit for winning this case for our client goes to Jeffrey Snyder, a Partner in our Workers’ Compensation Practice Group. 

Jeff, cheers!

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.