Case Law Update | Bauman v. WCAB (Pa. Cmwlth. September 17, 2016) | PA Work Injury

September 17, 2016

Below please find a Case Law Update summarizing the Commonwealth Court of Pennsylvania’s September 17th decision in David Bauman v. Workers’ Compensation Appeal WCAB (Kellogg Company). Here, the court affirmed the WCJ decision (previously affirmed by WCAB) granting both the employer’s Petition to Terminate Claimant’s WC benefits (2010 Termination Petition) and the claimant’s Petition for Penalties; despite awarding a 0% penalty.  

 

Issue #1 for Review: Whether the Board erred by affirming the WCJ’s decision granting Employer’s 2010 Termination Petition.

 

By way of background, employer filed the 2010 Termination Petition in reliance on Dr. Bennett’s conclusion from a second IME in May 2010, finding claimant had fully recovered from his May 2007 work injury and could return to full-duty work without restriction.

 

The court reiterated WCJ’s evidentiary findings that employer had proven a change in claimant’s condition since the adjudication of the 2009 Termination Petition. Specifically, the court cited WCJ’s findings that claimant’s testimony of ongoing shoulder pain was not credible because he had not treated for it since December 2009, his activities included playing guitar and video games, and he had traveled to Los Angeles where he got a tattoo on his right arm. Additionally, WCJ found Dr. Bennett’s testimony of claimant’s full recovery credible because he examined claimant on two occasions, and because Dr. Bennett’s opinion was consistent with the opinions of claimant’s other doctors, his diagnostic studies and his activity level. The court ultimately held that the doctor’s credited diagnosis and opinion of work ability, coupled with the claimant’s activities and WCJ’s personal observation of claimant (which suggested that his subjective complaints were either not accurate, not as severe as described, or had improved since the last proceeding), were sufficient in establishing a change in claimant’s condition.

 

Issue #2 for Review: Whether the Board erred by affirming the WCJ’s decision granting Claimant’s Penalty Petition, but awarding a 0% penalty

 

The court declared that under the facts of the case, employer’s failure to pay for claimant’s shoulder surgery was not sufficiently significant to warrant more than a 0% penalty.

 

The court agreed with WCJ’s belief that the employer’s violation of the Act was significant enough to warrant the imposition of a penalty. The court, however, in holding WCAB did not err in affirming WCJ’s decision to assess 0% penalties against employer, reiterated the WCJ’s findings. Specifically, that the WCJ did not accept as credible claimant’s complaints of pain, noting again that he travelled to Los Angeles, getting a tattoo on his injured arm, the same arm on which the surgery would have been performed and the same body part which claimant alleged was causing him to experience excruciating pain despite not receiving any active medical treatment since December 2009.

 

The court ultimately held that WCJ adequately explained, on remand, why she chose not to award penalties and sated that upon review of this explanation, they could not say WCJ abused her discretion by declining to award penalties in this case.

 

Link: http://www.pacourts.us/assets/opinions/Commonwealth/out/2603CD15_9-23-16.pdf?cb=1

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