Case Law Update I Smith v. WCAB (Pa. Cmwlth. No. 606 C.D. 2014, filed March 9, 2015) I PA Workers' Comp

March 9, 2015

Smith v. WCAB (Consol. Freightways, Inc.) (Pa. Cmwlth. No. 606 C.D. 2014, filed March 9, 2015) (per curiam).

 

Claimant was a truck driver for Employer in 1996 when he was briefly exposed to a chemical on 2/28/96; he filed his first WC petition relating to this incident in 5/96.  After discovery and two hearings, petition denied on basis that exposure caused neither disability nor injury.  Claimant’s 1997 petition seeking medical expenses related to same incident also denied.  Claimant continued to file petitions raising claims arising from the same incident (15 total prior to this appeal), all of which have been extensively litigated (to both SCOPA and SCOTUS) and denied.  Petitions here again seek medical expenses & penalties.  WCJ denied & WCAB affirmed.

 

Cmwlth Ct: Affirm.  These claims are barred by res judicata & collateral estoppel, having been fully and finally litigated multiple times; at this point, they are not just meritless, but frivolous & vexatious.  This extreme, flagrant,  & continuous abuse of judicial resources and time warrants sua sponte award of attorney fees and costs to Employer.  This type of sanction is unusual in WC context, but 1999 SCOPA case frowning upon it  (Phillips) noted also that when claimant litigation is abusive, it can be appropriate when, as here, litigation goes beyond tipping point into abuse.  Employer has not sought fees and costs here, based on prior application of Phillips, but Phillips also noted that in instances of abuse, fees and costs can be appropriate upon petition by Employer.

 

Washington v. WCAB (Nat’l Freight Indus., Inc.) (Pa. Cmwlth. No. 1070 C.D. 2014, filed March 4, 2015) (Colins, S.J., joined by Cohn Jubelirer & Leavitt, JJ.).

 

Claimant worked as tractor trailer driver for NFI from 2007 through 2/3/11. In Feb. 2009, claimant was rear-ended by another driver in unrelated auto accident.  He missed several days and eventually returned to full duties, but pain in shoulders, arms, and hands worsened until he could no longer work at his job.

 

On 10/31/11, Claimant filed WC claim petition seeking TTD & alleging that repetitive motion from work led to “aggravation of neck, shoulders, arms, hands and bilateral carpal tunnel syndrome” making him unable to work.  WC Bureau mailed petition to NFI on 11/3/11, but address provided for NFI on petition was one digit off from correct address. NFI answer & denial of claim filed 43 days later (beyond 20 day deadline). WCJ denied on merits and WCAB affirmed on basis that Claimant failed to show that work (and not unrelated auto accident) caused his injuries & inability to work.

 

Cmwlth Ct: Affirm.  Although NFI’s answer was filed late, Claimant could not take advantage of technicality to force NFI admission of Claimant’s version of facts (that repetitive work motion and not unrelated auto accident caused injury and inability to work). Petition must be “properly addressed” and Claimant’s was not. Also, WCJ and WCAB did not err on merits.      

 

Murphy v. WCAB (Ace Check Cashing, Inc.) (Pa. Cmwlth. No. 1604 C.D. 2013, filed Feb. 20, 2015) (en banc) (Cohn Jubelirer, J., with Concurring Opinions by Leadbetter and McCullough, JJ.).

 

Claimant was a 12-year employee for Employer when she arrived with her husband to the company’s main office on 6/19/10 in their car; they were immediately set upon by armed robbers who held Claimant’s husband at gunpoint while they marched Claimant through the office, forcing her to open safes and vaults for them.  Claimant was threatened that her husband would be killed if she did not comply; she could not reach her panic button or set off the office’s silent alarm.  The Claimant was left “hog-tied” in the office while the robbers escaped.  

 

In 7/10, Claimant filed WC petition alleging that she was unable to work due to physical and mental/emotional trauma from the robbery.  Claimant reported panic attacks, nightmares, depression, fear, and renewed agitation and PTSD because her son-in-law had been murdered several years earlier while working a similar job.  WCJ held that due to the nature of the check cashing business, the armed robbery that occurred here was foreseeable and not an “abnormal working condition,” so Claimant could not be compensated for “any mental disability or medical treatment for a physical injury.”  WCAB affirmed.

 

Cmwlth Ct: Vacate & remand to WCJ  to consider whether Claimant established, under recent case law that the armed robbery was an “abnormal working condition.” (Payes II (Pa. 2013) (mere fact that claimant generically belongs to a profession that involves certain levels or types of stress insufficient to factually establish that incident in question was a normal working condition).  Concurrences by Leadbetter (joined by Pellegrini) & McCullough, JJ., expressed little doubt that the armed robbery here was an abnormal working condition and that Claimant’s son-in-law’s previous murder under similar conditions was relevant here, where Claimant experienced (among other mental/emotional issues), PTSD.

 

IA Construction Corp. & Liberty Mutual Ins. Co. v. WCAB (Rhodes) (Pa. Cmwlth. No. 2151 C.D.  2013, filed Feb. 19, 2015) (Brobson, J., w/Leadebetter, J., & Colins, S.J.).

Claimant sustained traumatic brain injury with multiple aspects (memory loss, cognitive problems, vertigo, etc.); original WC petition granted 1/07.  In 7/10, Employer sought modification based on IRE by Dr. Lateef, which resulted in finding of 34% impairment & maximum medical improvement.  After hearings, WCJ (not the same as original) denied Employer’s modification petition.  WCJ rejected Dr. Lateef’s opinion outright, critiquing: Dr.’s decision to “lump together” Claimant’s injuries into certain categories of his own determination, Dr.’s basing impairment rating primarily on records rather than personal examination of Claimant, and Dr.’s going forward with the IRE when he was not a specialist or even particularly experienced in traumatic brain injuries.  WCAB affirmed.

 

Cmwlth Ct: Reverse.  WCJ has discretion to accept or reject IRE report, but must have some basis in record or law; WCJ here had neither.  Specialist might have been preferable, but Dr. here was board certified and his although his report “could have been improved on,” it met statutory standards and WCJ may not impose greater qualifications than those in the Act.  Nor did Claimant elicit any evidence of record that could support the WCJ’s determination.

 

 

Donahay v. WCAB (Skills of Central Pa., Inc. (Pa. Cmwlth. No. 869 C.D. 2014, filed Feb. 4, 2015) (Leavitt w/McGinley & Brobson, JJ.).

 

Claimant worked at a group home for mentally challenged adult males; she hurt her arm (ruptured biceps tendon) on 2/26/11 when she had to help one of the residents walk as he leaned heavily on her arm due to a leg problem.  Employer agreed to pay her TTD of $547/week based on AWW of $816/week, which included significant overtime (40-45 hours per week) because the home was understaffed.  In 8/11, she returned to work with some weight restrictions and a slightly higher hourly wage, but lower overall pay because in the meantime, the home administration experienced funding difficulties, leading it to hire more workers at regular (lower) wages and to limit overtime (no more than 16 hours per week).  Her WC was reduced to TPD of $187/week.  

 

In 2/12, Claimant underwent an IME & was deemed able to return to regular work; Employer sought to terminate her benefits as of IME date, or suspend benefits as of 3/8/12 because while Claimant had some residual impairment, she was capable of performing her job w/o restrictions.  WCJ concluded that Claimant’s injury did not cause lost earning power because her reduction in hours worked was the result of a temporary understaffing situation that resolved when Employer hired more workers and limited overtime.  WCJ suspended benefits as of 3/8/12. And WCAB affirmed.

 

Cmwlth Ct: Affirm.  Reduction in Claimant’s reduced earnings is due to economic pressures on Employer, which devised a reasonable solution (hiring more “regular” workers and limiting overtime).  Claimant does have residual effects and restrictions on lifting, etc., but can do her pre-injury job without limitation because it is mostly administrative at this point (including her own scheduling) and she does not have to do any lifting above her restrictions.

 

 

Arnold v. WCAB (Lacour Painting) (Pa. Cmwlth. 565 C.D. 2014, filed Jan. 28, 2015) (Colins, S.J., w/ Cohn Jubelirer & Simpson, JJ.).

 

On 12/19/07, Claimant suffered injury to his lumbar & thoracic spine while in the course of work for Employer; he was thrown off a scissor lift that tipped over and fell 35 feet to the ground, requiring back surgery, treatment, and rehab.   Employer agreed to pay $389.50/week.  On 11/30/11, Claimant filed review petition alleging specific loss of both legs separate and apart from accepted injury.  WCJ allowed total disability but declined to find as to a separate and distinct specific loss of use of legs, stating that was a question for WCAB in its original jurisdiction.  WCAB affirmed total disability and denied specific loss, declining Claimant’s petition to receive benefits concurrently that would effectively double his weekly receipt to $779/week ($389.50/week for each leg); total disability would be suspended for duration of specific loss benefits.

 

Cmwlth Ct: Affirm.  WCAB has discretion to apply benefit scheme most advantageous to a claimant; presumption is that total disability compensation is generally the most beneficial of the benefit schedules, providing, as it does, both the highest allowable compensation and the only compensation not limited to a maximum term of weeks.  Here, Claimant seeks payment of multiple specific loss benefits concurrently.  But Claimant’s injuries arose out of a single work accident, not separate and unrelated incidents, nor has he established that the fall led to separate and distinct injuries to different body parts.  At any rate, nothing in Act or case law warrants the concurrent payment  sought here: “While a claimant may be entitled to receive both specific loss and disability benefits in these cases, Section 306(d) of the Act explicitly prohibits these benefits from being paid concurrently but instead provides that the total or partial disability period runs first and the specific loss benefits do not begin to be paid until after the disability payments end.  77 P.S. § 513.”

 

 

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