Tuesday, March 23, 2004

Commonwealth Court Affirms Board Order Quadrupling Disfigurement Award

In General Motors Corp. v. WCAB (McHugh) The Board explained a disfigurement case almost in the manner the Court asked the Board to do in Lord & Taylor v. WCAB (Bufford) November 7, 2003 post. The Court affirmed the Board's modification of a disfigurement award from fifteen (15) to fifty-five (55) weeks.

The specifics: 3/4 in. scar right nostril -- WCJ 6 weeks, Board 15 to 25 weeks, awarded 20; 1/2 in scar right eyebrow -- WCJ 7 weeks, Board 3 to 5 weeks, awarded 5; "de mimimus" (per WCJ) deviation of bridge of nose to the left -- WCJ 2 weeks, Board 25 to 35, awarded 30.

The element of Lord & Taylor that the Court did not require in the instant case was the requirement that the Board explain how it arrived at the range most WCJ's would select. The Court declined to offer any guidance itself, recognizing this is within the province of the legislature. The Court also again stated the "rule of thumb" of ten weeks per linear inch has no precedential value. The Court indicated it would affirm the Board's determination of "acceptable" awards to pursue uniformity.

Monday, March 22, 2004

Employer Has Thirty Days After WCAB Supersedeas Disposition to Pay

In R. Snizaski v. WCAB (Rox Coal Company) the Commonwealth Court reversed its holding in Hoover v. WCAB (ABF Freight Systems) and stated an employer shall not be penalized for not paying workers' compensation benefits due under an Order of the WCJ while the time for review of the Employer's supersedeas request before the Workers' Compensation Appeal Board has not expired. Judge Friedman's dissent pointed out the Board's procedure can take fifty (50) days, and with thirty (30) days to pay thereafter, the Employer could pay eighty (80) days after a WCJ's order without penalty.

Supreme Court Takes Gardner, Denies Employer's Appeal in Cryder

The Supreme Court granted allowance of appeal in Gardner v. WCAB (Genesis Health Ventures) January 15, 2003 post, which held an Employer may not have an IRE if it is not requested in the sixty (60) day window after the expiration of 104 weeks of temporary total disability. The Supreme Court denied the Employer's petition for appeal in Cryder v. WCAB (National City) June 24, 2003 post, which held when a Claimant on light duty was terminated for not meeting her production goals, her loss of earning power was through no fault of her own.

Tuesday, March 16, 2004

Commonwealth Court Issues Another AWW Case

The G. Rebel v. WCAB (Emery World Wide Airlines #150) affirms that when a Claimant is off for a non work-related condition during the year prior to a work injury, but the Claimant did work a complete 13 week quarter prior to the injury, Section 309(d) is used to calculate the AWW. The Court stated the Claimant remained "employed" while she was off for maternity leave.

This case lends itself to Judge Friedman's (joined by Judge McGinley) argument stated in the dissent in Zerby that when one is incapable of performing services for valuable consideration, one cannot be employed. Maternity leave is no more a factor in establishing pre-injury earning experience as a predictor of future earning potential than is a prior work injury or a period of disability for which the Claimant collected sickness and accident benefits. In the cases of Colpetzer, Zerby and Shire the Commonwealth Court put the Claimant's prior AWW or S&A benefit rate in the Section 309(d) calculation.

That was a fair compromise in those cases, but this case demonstrates a determination of whether the Claimant was capable of performing services for valuable consideration when the Claimant had no earnings is more universal in determining future earning potential. In the Dana Corporation cases, one could argue periods of lay off prior to a work injury are relevant to what the Employer's liability for future wage replacement should be. A direction that unemployment compensation should be included in a later AWW calculation would be appropriate for the legislature to consider.

Colpetzer, Zerby and the three Dana Corporation cases, are presently before the Supreme Court.

Commonwealth Court States Findings of Fact Not Reviewable

In J. Almeida v. WCAB (Herman Goldner Company) the NCP accepted a strain to the lower back. In later termination proceedings, the Claimant's medical witness stated the Claimant sustained a herniated lumbar disc. The Employer's medical witness stated the Claimant was recovered from a lumbar strain and his continuing complaints were from non work-related mild degenerative disc disease.

The WCJ found the Claimant's expert credible, but also found the Claimant did not sustain a herniated disc. The WCJ noted the Claimant's non work-related degenerative disc disease was not symptomatic prior to the injury.

The Claimant appealed. He asserted the WCJ's finding the Claimant did not sustain a herniated disc was not supported by substantial evidence. The Board affirmed on the basis of the WCJ's authority over matters of credibility.

The Commonwealth Court affirmed on the basis that a party lacks standing to appeal a finding of fact where the party does not appeal the Order of the WCJ. The Court stated the Claimant was not aggrieved by the Order of the WCJ, and therefore no standing to appeal is granted by Pa. R.A.P. 501 or Section 702 of the Administrative Agency Law.

In a footnote (No. 5), the Court stated it agreed the WCJ's fact finding was "appropriate", but the Court was without power to set aside the WCJ's factual finding on the herniated disc without invading the province of the WCJ to weigh the evidence and make credibility determinations.

The WCJ's fact finding in this case was appropriate because it satisfied the framework the Supreme Court has established in Daniels and Wintermeyer for reviewing credibility findings of a WCJ. The WCJ did explain, as required by Daniels, that the diagnosis of a herniated disc was not credible because it was unsupported by objective evidence. Also, it is not clear beyond doubt that the WCJ capriciously disregarded other competent evidence, which triggers judicial review under Wintermeyer.

This analysis also would allow the finding of the WCJ to have Res Judicata effect. If a finding of fact cannot be appealed, the denial of due process as to this adjudication of the WCJ makes giving the finding Res Judicata effect also a denial of due process.

The description of injury is a very important element in allocating the burden of proof under recent caselaw. If it is true a description of injury in a WCJ's finding of fact cannot be appealed, the parties should demand that whenever the description of injury is at issue it be included in the Order with the appropriate diagnosis code(s) as testified to by the medical witnesses.

Commonwealth Court Affirms The Subsequent Injury Fund Is Not Liable for Penalties

J. Chiconella v. WCAB (Century Steel Erectors, Inc., et al.) affirms the Subsequent Injury Fund is not liable for penalties. Only "employers" and "insurers" can be penalized.