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.

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

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

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

New NCP With Medical Only Check Box Published

The Notice of Compensation Payable (LIBC-495) to use for medical only cases is available at the Workers' Compensation Forms Matrix Site. This form replaces all prior versions of the NCP.

Pennsylvania Workers' Compensation Practice and Procedure reference: 9.6

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.

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.

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.