Another multiple issue work comp case.
As I mentioned a few days ago, many work comp cases involve several factual and legal issues, both during the litigation and upon appellate review.
Here is another case which reflects a successful litigation strategy by the Employer and Insurer from the time of the claim petition to the termination of liability.
Rivers v. WCAB (Saunders House), No. 893 C.D. 2012, an unpublished memorandum opinion of a panel of the Commonwealth Court, authored by Judge Leavitt on March 15, 2013, addressed several issues.
1. Concurrent employment earning calculation
2. Unreasonable contest, Attorney fee request
3. Penalty Failure to Accept/Deny within 21 days
4. Reasoned decision - remand
5. Claimant credibility- inconsistencies
6. Termination (full recovery) during claim petition appeal
Factual & Procedural Background
Employee was a part-time dietary server at Saunders House, a nursing home.
After 3 weeks of employment, she slipped on a wet floor and nearly fell (but did not fall).
2006 Injuries from the slip & "near fall" were diagnosed as:
i. Bilateral C5-6 radiculopathy,
ii. post traumatic cephalgia,
iii. cervical & lumber spine sprain/strain,
iv. aggravation of C5-6 degenerative disc syndrome,
v. lumbosacral spine radiculitis,
vi. chronic myofascial pain syndrome
[ again... fortunately she did not actually fall...]
1st WCJ Harris decision:
a. Found claimant and her physician credible.
b. Granted claim for total disability.
c. Granted concurrent employment wage calculation of $395.58.
d. Granted 20% penalty for failure to deny.
e. Granted attorney fees for unreasonable contest.
1. WCJ failed to resolve inconsistencies in claimant testimony regarding concurrent employment;
2. WCJ failed to issue a reasoned decision regarding how she assessed penalty and attorney fee.
Employer Subsequent Petitions:
* Employer filed a termination petition for full recovery in March 2008 based upon Dr. Brody IME.
*Employer filed a suspension petition based upon offer of pre-injury job in April 2008.
2nd WCJ Guyton (Harris retired)
a. Credibility, did not reassess, not a remand issue
b. Granted claim thru date of IME
b.1 granted Termination based on Employer medical evidence.
c. Reversed concurrent employment finding. Employee not credible. She did not prove she worked 2nd
full-time job at time of injury, wage records did not added up!
d. Reduced 20% penalty to 10% as 1st WCJ failed to consider after untimely denial, the Employer
medical evidence provided a reasonable basis.
e. Denied attorney fees as Employer medical evidence provided a reasonable contest.
WCAB & Commonwealth Court Affirm WCJ Guyton
a. Credibility Issues
2nd WCJ specifically noted she would not re-visit the original credibility determinations of 1st
WCJ, as that was beyond the scope of WCAB remand.
b. Award of Benefits
2nd WCJ awarded temporary total disability based upon her assessment of medical evidence.
Employer Medical Expert did not challenge the original description of injury found by 1st WCJ.
b.1 Termination order
Termination was appropriate based upon Employer medical evidence, which was found
credible by the 2nd WCJ as to Employee's condition in March of 2008.
Employer did not attempt to "go back in time" and re-litigate Employee status at the time of the
original work injury in 2006.
Employer was not required to show a "change in condition" to establish a right to a termination
order. (as required in a subsequent termination filing).
Employer met it's burden of proof to establish "that the claimant's disability has ceased or that any
current disability arises from a cause unrelated to the claimant's work injury".
see: Miller v. WCAB (PeopleLease Corp. et. al.) (Pa. Cmwlth. 2011).
Here, Employer did not file termination/suspension petitions to litigate an issue raised on appeal.
Employer petitions did not challenge the occurrence of the work injury, they challenged the
continuation of any work disability. This is permitted, even in light of Sharkey v. WCAB
(Tempo, Inc) (Pa. Cmwlth. 1999) which prohibits litigation of an identical issue already raised in
an appeal of a claim.
c. Concurrent Employment
It was Employee burden of proof to establish concurrent employment wages, at the time of injury.
Concurrent Employment must be "on-going" at the time of injury. see: Ostrawski v. WCAB (UPMC
Braddock Hospital (Pa. Cmwlth. 2009).
Claimant tax records did not support her claim of full-time 2nd job.
They proved she worked only part of the year, they did not prove concurrent.
WCJ could properly find her testimony not credible.
d. Reduction of 20% Penalty to 10%.
1st WCJ only considered untimely denial, she did not consider Employer contest became reasonable
with receipt of Employer medical evidence. An untimely denial was a violation of the Act,
however, the imposition of a penalty is not automatic, it is within the discretion of the WCJ.
Here there was no abuse of discretion, for the reasons stated.
see: Bruitco v. WCAB (US Airways Inc.) (Pa, Cmwlth. 2004)
e. Reasonable Contest
Employer medical evidence rendered the contest of claim petition to be reasonable, after initial
denial. Employer Medical expert questioned Employee total body pain symptoms in light of the
mechanism of injury. Employer medical evidence, if believed, would have disputed Employee's
1. Injury description - obtain a Medical Expert exam to challenge the Employee description.
2. Obtain employment records and scrutinize concurrent employment claims.
3. Establish a reasonable basis via medical evidence as soon as possible.
4. Establish mitigating circumstances in any penalty situation. Remember the WCJ has discretion.
5. Do not delay your assertion of any Termination/Suspension/Modification remedies when a claim
petition appeal is pending appellate review.
6. Remember it is not a "reasoned decision" if the WCJ does not adequately explain findings.