Case Law Update

December 20, 2013

McCafferty v WCAB (Trial Technologies, Inc.) __ A.3d __ (Pa. Cmwlth No. 208 C.D. 2013, filed November 21, 2013)

 

The claimant received an “Employee Verification of Employment, Self-Employment or Change in Physical Condition” form (“LIBC-760 Form), during litigation on a claim petition. The form was faxed back to the adjuster and rejected on the basis that it was not an original and not dated. A claim petition was later granted and the employer sent the claimant a notification of suspension, based on his failure to complete and return the LIBC-760 form. The claimant later mailed a second LIBC-760 form, which was dated, and benefits were reinstated. The claimant then filed a penalty and reinstatement petition, concerning the period of time during which his benefits were suspended. The WCJ denied both petitions and the WCAB affirmed.

 

The Commonwealth upheld the denial of the penalty and reinstatement petitions. The Court reasoned that while it was permissible to return the LIBC-760 Form by fax, a date was essential. Because the LIBC-760 Form submitted by the claimant did not verify his status at the time it was completed, the Court held that it was not completed accurately and that the suspension of benefits was authorized.

 

Battles v. WCAB (Pittsburgh Steelers Sports, Inc.), __ A.3d __ (Pa. Cmwlth No. 225 C.D. 2013, filed August 29, 2013) Publication Ordered November 21, 2013

 

The claimant signed a one-year contract with the Steelers, but injured his leg during the first game of the season. He was placed on the injured reserve list and paid the contractual amount owed to him for the football season. He underwent a rehab program and the team decided did not re-sign the claimant. Instead, the team allowed him to continue rehab and gave him a severance payment. He was later cleared to play, but was not offered a position by any team. He elected to retire. He filed a claim petition for the football injury.

 

In upholding the denial of the claim petition, the Commonwealth Court observed that although claimant had missed the entire football season because of his injury, and was not cleared to play football while undergoing rehab, he had no loss of earnings during this period of time because the employer had paid claimant what was he was contractually entitled to receive for the season, in the context of a non-renewable contract. Accordingly, the claimant had failed to prove that his work injury resulted in disability.

 

James Reichert v. WCAB (Dollar Tree Stores), __ A.3d __ (Pa. Cmwlth, No. 42 C.D. 2013, filed November 8, 2013)

 

In Reichert, the claimant appealed the granting of a modification petition based on a labor market survey (LMS). Specifically, the claimant argued that the employer failed to establish the absence of an open and available position within its retail stores and that the vocational expert had failed to contact the employer to determine whether there were any open and available positions prior to conducting the LMS. The claimant argued that the failure to contact the employer rendered the LMS void.

 

The Commonwealth Court observed that the employer does not have the burden to prove the non-existence of available work at its own facility as a necessary element of a modification petition. Instead, a claimant may present evidence of a specific job vacancy that the employer had intended to fill, which the claimant was capable of performing, which had existed during the period of time that the employer had a duty to offer a specific job. The burden then shifts to the employer to rebut claimant’s evidence.

 

After reviewing the evidentiary record, the Commonwealth Court observed that there was sufficient evidence that the employer did not have any available positions within its retail stores within the claimant’s capabilities. The Court noted that the claimant failed to rebut this evidence by presenting evidence that the employer was actively recruiting for a specific job vacancy or had posted the existence of a specific job vacancy within his capabilities.

 

The Court also rejected the claimant’s argument that the vocational expert was required to contact the employer about open and available positions before conducting the LMS, noting the claimant’s failure to cite to any legal authority to support his position. Based on its own review of relevant decisional law, the Act, and the regulations, the Court failed to find support for that proposition.

 

The modification of benefits was upheld.

 

Commonwealth of PA v. WCAB (Noll); Noll v. WCAB (Commonwealth of PA), __ A.3d __ (Pa. Cmwlth No. 819 C.D. 2013, No. 907 C.D. 2013, filed November 6, 2013).

 

Through a 2002 judicial decision, a WCJ ordered the employer to pay the claimant TTD benefits at the rate of $509 per week. He also directed the employer to deduct 20% of the claimant’s benefits and pay them directly to claimant’s counsel, pursuant to Section 442 of the Act. The WCJ then ordered the employer to pay quantum meruit fees of 20% “of all past due and owing benefits directly to claimant’s counsel not [to be deducted] from Claimant’s proceeds.”

 

In 2010, the employer filed a review petition, asserting that it had overpaid claimant and seeking to recover the overpayment by taking a weekly credit from the claimant’s benefits. The employer argued that it had paid claimant $509 per week, without deducting 20% for a counsel fee, because it misunderstood the WCJ’s orders. The WCJ denied the petition, based on his prior orders, which required the claimant to be paid $509 a week. He also found that the employer could not recoup payment from claimant since there had not been a mathematical miscalculation or mistake in the agreement by which the claimant received his compensation.

 

The Commonwealth Court found that the WCJ had erred in awarding an ongoing quantum meruit fee, in addition to the full amount of benefits awarded to the claimant, in the 2002 order. The Court determined that an indefinite award of 20% of all future benefits did not constitute a reasonable sum under § 440 (b) of the Act, and that it was an improper punitive award. Having concluded that there was an overpayment, the Court next looked to whether the employer was entitled to recoup from claimant’s future workers’ compensation benefits, to prevent unjust enrichment.

 

The Court found that the employer was entitled to a credit against the claimant’s future workers’ compensation benefits because it proved that it had made the overpayment, under the mistaken belief that it was to pay benefits undiminished by counsel fees.

 

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