Case Law Update I Neff v WCAB I Work Injury

January 26, 2015

melissa chandyThe latest case law updates were written by our resident expert, associate Pennsylvania workers' compensation lawyer, Melissa Chandy.

 

Neff v WCAB (Pennsylvania Game Commission), __ A.3d __ (Pa. Cmwlth., No. 130 C.D. 2014, filed January 8, 2015)

 

The claimant argued that an IRE was premature and invalid because she was not an MMI. Specifically, the claimant argued that there was reasonable potential for her to undergo future surgery, which could cause a change in her condition.  

 

The Court held that a determination as to whether a claimant has reached MMI is a medical determination, which inherently must be the subject of medical testimony. As long as a medical expert considers the appropriate factors required by the Guides, when determining if a claimant has reached MMI, a WCJ may rely on that expert’s determination. In such circumstances, the determination of MMI by the WCJ will not be disturbed on appeal. Here, the IRE physician’s testimony was compatible with the Guides description of MMI, as found by the WCJ. Thus, the claimant’s MMI argument was rejected. 

 

 

Mayo v WCAB (Goodman Distribution, Inc.), __ A.3d __ (Pa. Cmwlth., No. 683 C.D. 2014, filed January 8, 2015).

 

Here, former counsel received his attorney fee from the date of injury up through a C&R hearing, which amounted to $14,952.34.  He continued to receive his fee, even though he was discharged by the claimant, two to four months before the C&R hearing. The entire fee from the C&R was awarded to the claimant’s current counsel, who had secured the settlement offer.  Former counsel admitted at the C&R hearing that his firm never secured a settlement offer from the employer, prior to being discharged.

 

In affirming the WCJ’s decision, the Court cited to an unreported memorandum opinion, Thomas v WCAB (Gunton Corp.), (Pa. Cmwlth., No. 1489 C.D. 2012, filed April 9, 2013), 2013 WL 3973805, in which the Court recognized that an attorney discharged prior to the time of settlement is not entitled to an additional proportionate share of the contingent fee from the settlement proceeds, based on the relative contributions of the attorneys. Accordingly, the Commonwealth Court affirmed the WCJ’s determination severing former counsel’s fee as of the date of the C&R hearing and awarding the entire C&R counsel fee to current counsel.

 

 

Frog, Switch & Mfg. v WCAB (Johnson), __ A.3d __ (Pa. Cmwlth, No. 149 C.D. 2014, filed December 4, 2014).

 

In Johnson, the claimant testified about inappropriate hostile gender-based racial remarks and incidents in her workplace, which were not disputed by the employer. The WCJ credited her testimony in its entirety and granted her claim petition through which she alleged atypical depression related to abnormal working conditions. The Board agreed with the WCJ that the events taken together, constituted an abnormal working condition, and that the cumulative effect of these events resulted in a diagnosis of atypical depression.

 

The Commonwealth Court reversed almost going out of its way to knit-pick claimant’s testimony and her medical evidence to find that the WCJ’s findings were not supported by substantial evidence and that claimant did not meet her burden of proving that the work conditions caused her injury. Specifically, the Court found that the claimant had failed to establish that the injury was more than a subjective reaction to normal working condition and that her evidence failed to delineate the injury’s occurrence and cause. 

 

In his Dissent, Justice McGinley criticized the Majority for failing to apply the correct standard when determining whether the WCJ’s findings were supported by substantial evidence, for not viewing the evidence in a light most favorable to the claimant and for not drawing all reasonable inferences therefrom. 

 

 

Zwick v WCAB (Popchocoj), __ A.3d __ (Pa. Cmwlth. No. 428 C.D. 2014 & No. 429 C.D. 2014, filed December 11, 2014). 

 

In Zwick, the claimant filed a claim petition for benefits for an injury sustained while doing construction work. A claim was also filed against the Fund, who joined Zwick, as an additional defendant. In granting the claim petition, the WCJ found that Zwick was not the claimant’s statutory employer at the time of his injury because the work performed was not a regular part of Zwick’s business. The Board affirmed the award of benefits, but found that Zwick was a “contractor’ under Section 302(a) of the Act. As a result, Zwick was found secondarily liable as a statutory employer. 

 

Zwick filed an appeal to the Commonwealth Court, arguing that the Board should have applied Section 302(b) of the Act instead of Section 302(a). The Court disagreed noting that in order to designated a statutory employer under the Act, an employer must meet the criteria in either Section 302(a) or 302(b).  The Court also observed that the Supreme Court has held that Section 302(a) is not limited to cases involving the cutting or removal of timbers from lands, and that it also applies to contractual delegations of aspects of an employer’s regular or recurrent business activities, via the Six L’s case. 

 

Accordingly, the Board’s determination that Zwick was a statutory employer under Section 302(a) of the Act was upheld. 

 

 

 

Keller v WCAB (UPMC Presbyterian Shadyside), __ A.3d __ (Pa. Cmwlth., No. 370 C.D. 2014, filed December 15, 2014).

 

In Keller, the claimant notified her concurrent employer that she would be voluntarily resigning from her position before her work-related injury. As a result, the claimant’s personal reasons for leaving the position were unrelated to the work injury and her wages with the concurrent employer should not be included in the calculation of her AWW. 

 

 

PA Liquor Control Board v WCAB (Kochanowicz), __ A.3d __ (Pa. Cmwlth., No. 760 C.D. 2010, filed December 30, 2014). 

 

This matter was remanded to the Commonwealth Court to determine whether the WCJ’s findings of fact were supported by substantial competent evidence and supported the WCJ’s legal conclusion that an armed robbery was an abnormal working condition. 

 

Here, a liquor store employee was working when his store was robbed at gunpoint. The gunman demanded money and directed the claimant to unlock the store’s back emergency exit, while pointing a gun to the back of the claimant’s head. The gunman prodded the claimant’s head with his gun and threatened him, before tying the claimant to a chair. Before leaving, the gunman warned the claimant that he might return. 

 

The WCJ granted the claim petition finding that robbery by gunpoint to the back of the head was not a normal working condition. Thus, like in the Payes case, the award was based on the actual specific events of the case and not a blanket finding that all robberies were abnormal. 

 

Although the employer had a workplace violence training and presented evidence of robberies at other store locations, much of the training was focused on workplace violence in general, rather than on armed robberies specifically. Moreover, the training materials provided by the employer referenced armed robberies as being “infrequent occurrences.” Accordingly, the Court found that such training was not entirely relevant, and not dispositive, of whether the armed robbery that claimant experience was a normal working condition. Further confirming that this was not a normal working condition for the claimant was the fact that the claimant had never experienced a robbery in over 30 years of employment for the employer. 

 

The  WCJ’s legal conclusion that the claimant had established that a specific armed robbery was not a normal working condition was upheld. 

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