Case Law Summaries May 2012

June 17, 2012

Case Law Summaries May 2012 

Reinstatement of Benefits

 

Sladisky v. WCAB (Allegheny Ludlum Corp.), __ A.3d __ (Pa. Cwmlth. 67 C.D. 2011, filed May 15, 2012).

 

The claimant was working in a light duty position while receiving partial disability benefits. After receiving 500 weeks of benefits, the employer eliminated the light duty position.

 

In such a situation, the claimant is not entitled to an automatic reinstatement of TTD based on the elimination of light duty work. Instead, the claimant bears the burden of proving that his physical condition worsened to the point where he was incapable of performing light duty work.

 

Because the claimant testified that he could have continued to work light duty, the reinstatement petition failed to meet his burden of proof.

 

Claim: Specific Loss

 

Miller v. WCAB (Wal-Mart), __ A.3d __ (Pa. Cmwlth. 1741 C.D. 2011, filed May 25, 2012)

 

The claimant sustained an accepted injury to her left arm and a fracture of her left clavicle. She underwent two operations and was never cleared to return to her full duty work. She filed a claim petition, alleging the specific loss of her left arm.

 

In denying the Claim Petition, the WCJ misapplied the law by stating that claimant was required to prove the loss of a hand and forearm to prove the specific loss of an arm. Although he misapplied the legal standard for establishing a specific loss of an arm, the Commonwealth Court upheld the denial.

 

The Commonwealth Court first noted that a claimant may prove a specific loss even where she retains some use of the injured body party. The legal determination of whether there has been a loss of use is fact specific, and includes findings regarding credibility, the degree of injury, and the degree of the claimant’s ability to continue to use the injured part.

 

The Court was able to affirm a denial of the specific loss claim based on the WCJ’s competent findings of fact and credibility determinations, which were supported by substantial competent evidence of record.

 

Because the claimant retained meaningful use of her left arm, the Commonwealth Court could not conclude that, as a matter of law, she had suffered a specific loss.

 

Termination for Misconduct

 

BJ’s Wholesale Club v. WCAB (Pearson), __ A.3d __ (Pa. Cmwlth. 2010 C.D. 2011, filed March 9, 2012)

 

The claimant was fired after she reported to work with a blood alcohol level of .108, while working light duty. The claimant then filed a claim petition. On the termination issue, the WCJ accepted the claimant’s testimony that she had consumed a significant amount of alcohol the night prior to her termination. He also accepted the claimant’s testimony that she did not show outward signs of intoxication. Although the WCJ went on to accept medical evidence proving that the claimant was technically under the influence, he ordered the employer to pay ongoing disability benefits from the date of the termination. The Board affirmed.

 

The Commonwealth Court reversed the award of ongoing disability benefits from the date of termination.

 

The Court instructed that where an employer has provided work within a claimant’s physical limitations, at no loss of pay, and where the employer shows that a claimant was terminated for conduct evidencing bad faith or lack of good faith, disability benefits must be denied even if the claimant has a physical disability caused by the work-related injury. The Court noted that a violation of a substance abuse policy constitutes conduct that amounts to lack of good faith on the part of the claimant and that a claimant terminated for such conduct is not entitled to disability benefits for that loss.

 

Here, claimant was terminated for being drunk at work, in violation of the employer’s substance abuse policy. The WCJ’s findings proved that claimant drank heavily the night prior and her blood alcohol level confirmed that she was under the influence.

 

Accordingly, the award of ongoing disability benefits as of the date of termination was reversed because claimant’s loss of earnings was caused by her termination due to her own conduct, which amounted to a lack of good faith, and not because of the work injury.

 

Disfigurement Benefits: Unsightliness

 

Walker v. WCAB (Health Consultants), __ A.3d __ (Pa. Cmwlth. No. 492 C.D. 2011, filed May 3, 2012)

 

The WCJ had awarded 45 weeks of compensation for disfigurement to the claimant’s nose, based on a review of before and after photographs. The Board reversed finding that although the claimant’s nose had a slight crookedness to the left, the crookedness was not noticeably disfiguring and therefore not compensable.

 

The Commonwealth Court upheld the denial of disfigurement benefits because the claimant failed to prove that her disfigurement was unsightly.

 

Notably, the WCJ had requested photographs because she did not see an unsightly appearance in the claimant. The Supreme Court has cautioned against using photographs to gauge unsightliness, since photos can be manipulated. Unlike the WCJ, the Board personally viewed the claimant and found that the slight-crookedness was not disfiguring. Said another way, the crooked nose did not create an unsightly appearance. The Board’s finding that claimant was not entitled to disfigurement benefits was therefore affirmed.

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