Case Law Updates

October 3, 2011

Fatal Claim Petition
Little v. WCAB (B&L Ford/Chevrolet), 23 A.3d 637 (Pa. Cmwlth. 2011)


A fatal claim petition was denied where the injured worked suffered a heart attack and died after receiving a letter from his employer that he was being terminated – 11 days after his last day of work. Prior to being terminated, the injured worker has suffered a work injury and had made the transition from light to full duty. The injured worker was terminated after the employer received a letter from his attorney advising that he was not capable of performing manual labor.


Because the injury did not bear any relationship to his work activities, but only to the termination of the employment relationship, the injury was not within the course and scope of employment.


Gentex Corp. v. WCAB (Morack), 23 A.3d 528 (2011)


An employee can provide notice of a work injury to her employer using ordinary language. The context and circumstances surrounding an injury will also determine if proper notice of a work injury was provided. Notice may be provided over a period of time or a series of communications, if the exact nature of the injury and its work-relatedness is not immediately known to the injured worker.


Misrepresenting Physical Abilities and Earnings
Sauer v. WCAB (Verizon Pennsylvania, Inc.)(Pa. Cmwlth. No. 1316 C.D. 2010, filed June 15, 2011).


The injured worker returned to work modified duty without a loss of earnings. The employer filed a Notification of Suspension, which was not challenged. The following day, the employer fired the injured worker for misconduct. The employer conducted surveillance on the injured worker, which revealed that he was operating a home repair business although he had completed bureau forms claiming that he had no wages from any source and that he had not been self-employed while collecting benefits.


The Commonwealth Court upheld the WCJ’s decision to deny the injured worker’s reinstatement petition. The Court commented that misleading an employer into paying TTD constitutes a serious breach of trust. Because the employer proved that the injured worker misrepresented his abilities and the facts around his self-employment, he was not entitled to a reinstatement of benefits.


Causation and Degenerative Conditions
Green v. WCAB (US Airways) (Pa. Cmwlth. 2011, No. 2539 C.D. 2010)


The use of the term “degenerative” by a medical expert does not automatically rule out that the condition is related to a prior work injury.


Here, the injured worker’s medical expert clearly testified that the work-related trauma set the injured worker’s degenerative condition in motion. The WCJ misread his testimony by finding that the degenerative changes at issue were not related to the work injury, contrary to the doctor’s testimony, and resulting in a misapplication of the law. As a result, the WCJ’s findings and conclusions did not have a rationale basis and did not demonstrate a correct application of underlying substantive law. In this respect, the WCJ’s mishandling of the testimony of injured worker’s medical expert amounted to a capricious disregard.


The Commonwealth Court found that the Board erred in affirming the WCJ’s denial of the injured worker’s reinstatement petition given the WCJ’s misapplication of the law.


Untimely Appeal
Mills v. WCAB(School District of Harrisburg), 24 A.3d 1094 (Pa. Cmwlth. 2011)


Use of a Certificate of Mailing (Form 3817) does not automatically establish that a filing was timely. Form 3817 must (1) identify the case which it pertains to and (2) must be included in the mailing or mailed separately to the prothonotary.


Here, the injured worker mailed her appeal using private postmark which was received by the Board five days after the deadline to file an appeal. In her answer to the employer’s motion to quash, the injured worker included a Form 3817, which had not been included in her appeal document and which had not been mailed separately. The injured worker had also failed to identify the docket number on the Form. Accordingly, the document was considered filed on the date it was received. The appeal was therefore untimely.


Penalties v. Counsel Fees
Grady v. WCAB (Lutz t/a Top of the Line: Roofing, Uninsured Employers Guaranty Fund and ACS Claims Service)(Pa. Cmwlth. No. 16 C.D. 2011, filed on August 5, 2011).


Penalties and counsel fees are two distinct sanctions under the Act to address improper behavior on the employer’s part. Where an employer fails to pay benefits which are due, the employer is subject to the imposition of penalties. Where the employer unnecessarily extends the litigation, the employer is subject to the payment of counsel fees.


Here, the WCJ bifurcated the proceedings to determine whether the injured worker was an employee or an independent contractor. By interlocutory order, the WCJ found that the injured worker was an employee. Thereafter, both parties agreed that the injured worker’s medical condition was not at issue, but the parties disputed AWW. In granting the claim petition, the WCJ also awarded counsel fees, finding that the employer should have begun payment of compensation when the interlocutory order was issued. The Board reversed.


The Commonwealth affirmed, finding that failure to pay benefits is conduct subject to the imposition of penalties, not unreasonable contest counsel fees. Furthermore, the employer had no obligation to pay benefits when the interlocutory order was issued. Additionally, there was no basis to find that the employer unnecessarily protracted the contest with a dispute that was not genuine or reasonable and the WCJ did not make any such finding.

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