Tuesday, May 25, 2004

Commonwealth Court Reverses WCJ's Finding of Abnormal Working Condition in Supervisor's Pattern of Harassment

In RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton) the Claimant alleged mental/mental disability arising from several instances of homosexual advances by his supervisor. The Claimant's supervisor's homosexual statements were abhorrent, but the evidence suggested they were not sexual advances.

"(Finding of Fact)5. Joe Ross, the other employee in the jeep with the claimant, was so affected by Rossi's (the Supervisor's) statement that he asked Rossi if he was queer and told Rossi "Don't you ever talk to me like that, I don't take that bullshit, joke or not, don't ever talk to me like that." Rossi responded that he was just joking and that he knew that Hoppy (the Claimant) gets mad and was teasing him."

Of course, if the statements were sexual hrassment, the claim would not be compensible. Heath v. WCAB (Pennsylvania Board of Probation and Parole) appeal granted

The Commonwealth Court held the behavior was not abnormal working conditions, citing Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996).

Another issue in the case was the basis for the Claimant's subjective reaction to what the Court found to be normal working conditions. Medical evidence suggested the Claimant reacted because he suffers from post traumatic stress disorder (PTSD) from his service in Vietnam. The Claimant's disability may be compensable in this circumstance, as pointed out in the dissenting statements of Judges Friedman and Leavitt. Zink v. Workers' Compensation Appeal Board (Graphic Packaging, Inc.), 828 A.2d 456 (Pa. Cmwlth. 2003) July 10, 2003 Post However, the WCJ did not resolve the issue of whether PTSD or a paranoid personality disorder was the underlying condition of the Claimant.

"(Finding of Fact) 18. ...Whether the claimant had post-traumatic stress disorder from Vietnam or had a paranoid personality disorder, the main point to this Workers' Compensation Judge is that the claimant was a working, functioning employee in the mines until harassed, aggravated and stirred up by the comments in the series of incidents involving Dominic Rossi. It is immaterial whether he has PTSD or personality disorder..."

The issue, as stated by the WCJ in the remainder of Finding of Fact 18, was whether the supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant..." was an abnormal working condition. The Commonwealth Court held it was not.

Pennsylvania Workers' Compensation Practice and Procedure Reference 3.149

Thursday, May 20, 2004

Commonwealth Court Defines Procedure for Proving Modification Based on Surveillance Evidence of Earning Power

J. Burrell v. WCAB (Philadelphia Gas Works, et al.) is a case that has application in many areas. In the final analysis the Commonwealth Court affirmed the Order of the WCJ and Board that imputed income of $9.93 per hour for eight hours per week based on evidence the Claimant was working at least that much as a shoe shiner in his mother's shop.

The first issue was whether modification can be granted without a Notice of Ability to Return to Work when surveillance found the Claimant working. The Commonwealth Court noted receipt of medical information documenting a change in condition triggers the Employer's obligation to send the Notice of Ability to Return to Work. The purpose of the statute is to place the Claimant on notice of the medical information. Where the Claimant deems himself able to work, such notice is not required.

The next issue was whether the Employer had to demonstrate it had no job available to the Claimant within his restrictions before an award of modification. The Court held where the Claimant deems himself able to work, this can only be an affirmative defense of the Claimant.

Another issue was whether the WCJ's holding that the Claimant's imputed hourly wage should be $9.93 was supported by substantial evidence. The Employer's Vocational Expert opined this is the average wage for a shoe shiner in Philadelphia. The Claimant basically argued he's not that good. The Court held the accuracy of the VE's opinion is beyond challenge when the WCJ gives full weight to the VE's testimony, and this determination is within the sole province of the factfinder.

Finally, the Employer requested a credit. The Court recognized "Unjust enrichment occurs when a person has and retains money or benefits, which in justice and equity belong to another." and a credit may be granted to prevent unjust enrichment. However, the Employer could not prove the Claimant received wages or gratuities.

Pennsylvania Workers' Compensation Practice and Procedure Reference 21.56; 21.38; 6.106

Monday, May 17, 2004

Commonwealth Court Holds Claimant Did Not Meet His Burden to Reinstate After Retirement

A. Capasso v. WCAB (RACS Associates, Inc.) describes the Claimant's burden to overcome testimony that he retired. Once the Claimant testifies he retired, the presumption that his loss of earning power is through no fault of his own is abolished. The Claimant must show he is seeking to return to work or he was forced to retire because of his work injury.

The Commonwealth Court also held that where only the Claimant presented evidence, the WCJ was free to discredit it. The Court engaged in Daniels and Wintermeyer review of the WCJ's credibility finding that the Claimant's injury did not motivate him to retire, and the Court affirmed the finding.

Penalties Are Awarded When Employer/Insurer Takes Unilateral Suspension Upon Accrual of Credit

In T. Palmer v. WCAB (City of Philadelphia) The Employer took a unilateral suspension because the Claimant became entitled to a pension that offset her workers' compensation benefits. Even though the Claimant was due no workers' compensation benefits after the offset was applied, the WCJ's award of a penalty on the amount of workers' compensation due before the offset was affirmed by the Commonwealth Court.

This could apply in the case of return to work unilateral suspensions as well. The Court stated the rule that no penalty can be awarded when no compensation is awarded does not apply when compensation is payable, but offset, because the purpose of the statutory provision is to penalize conduct of the Employer/Insurer that is unlawful, in this case the unilateral suspension.

Wednesday, May 12, 2004

Bureau Statement of Policy Confirms Act 53 Qualifications of Vocational Experts are the Qualifications Set Forth at 34 Pa. Code §123.202

As noted in the recent Bureau of Workers' Compensation News and Notes, the Bureau issued a Statement of Policy providing the qualifications of vocational experts referred to in Act 53 of 2003 are as set forth in the "Qualifications (of vocational experts)" Regulation at 34 Pa. Code §123.202.

Later regulation is promised and may address the requirement that vocational experts comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses and other matters.

Pennsylvania Workers' Compensation Practice and Procedure Reference 21.51

Monday, May 10, 2004

Requirement of "Furthering the Employer's Business or Affairs" When Work Injury Occurs Off the Premises

In an article in the Pennsylvania Bar Association Quarterly, James A. Tinnyo, Esquire analyzes Acme Markets, Inc. v. WCAB (Purcell) to hold that an employee must be engaged in the furtherance of business when he suffers an injury off the premises that arises out of employment.

In the case, the Claimant labored heavily for years for the employer, but when his lumbar disk herniated, he was at home. What distinguishes this case from others is that the WCJ credited Claimant's doctor who opined the substantial cause of the herniated disk was the years of employment, not getting up off the floor after assembling a file cabinet for personal use.

Perhaps in this pre Daniels, two months post Wintermeyer case the Commonwealth Court didn't feel it could review the credibility determination.

One has to ask what the Court would have done if the Claimant, due to his degenerative condition accumulated from years at work, simply couldn't get up in the morning due to pain. If the Court would still deny the Claimant because he was at home (which is contrary to the heart attack cases Mr. Tinnyo cites) then a new precedent has been created.

No Proof of Change of Condition is Necessary for Second IRE in a Twelve Month Period

In S. Hilyer v. WCAB (Joseph T. Pastill, Jr. Logging), the Commonwealth Court endorsed the Bureau's Regulation at 34 Pa. Code §123.102(g) which provides an Employer can have an IME (Independent Medical Exam) that comments on the status of the Claimant's impairment under the AMA Guides within the twelve months following the IRE (Impairment Rating Evaluation) provided for in §306(a.2)(1) of the Act.

The Court danced around the fact the Act only allows an IME to be held after the Employer's one shot at an IRE which must be conducted within sixty (60) days after 104 weeks of temporary total disability is paid. §306(a.2)(6) The Court allowed to stand the obfuscation of the regulation that states an Employer can have two IRE's in a twelve month period, when the statute clearly says IMEs.

The bottom line, however, is the Court properly read §306(a.2) in pari materia to provide that in an IME that takes place after an IRE is properly conducted, the examiner can review the status of the Claimant's impairment under the AMA Guides. The Court further held no prefatory showing of a change in condition is required by §306(a.2)(6).

Pennsylvania Workers' Compensation Practice and Procedure reference: 17.31

Monday, May 03, 2004

NCP, Including Description Of Injury, Can Be Reviewed Where Facts Were Available At Time NCP Was Issued

In Meenan Oil Co., L.P. v. WCAB (Pownall) the Commonwealth Court held that pursuant to Section 413(a) of the Act, a review petition can be filed "at any time" to correct material mistakes including the date of injury and the description of injury.

The key here is the facts that direct the relief requested existed at the time the NCP was issued. The WCJ considered these facts under a review petition. The WCJ's finding that the date of injury and the description of injury were incorrectly entered on the NCP was within the authority granted by Section 413(a).

Pennsylvania Workers' Compensation Practice and Procedure reference: 25.6