PA September/October Case Law Updates
The following decisions were circulated by the Commonwealth Court between August 15, 2024 and September 15, 2024.
Patrick v. Velocity Rail Solutions, Inc. (WCAB), No 652 C.D. 2023 – UNREPORTED
Claimant appealed pro se from the denial of a Claim Petition alleging that he sustained a perforated eardrum and loss of hearing in his right ear secondary to noise at work. He sought total disability benefits. The Workers’ Compensation Judge found that Claimant was not credible based on inconsistencies between Claimant’s testimony and the history provided to the doctors at the occupational health clinic (the notes from the clinic were submitted into evidence themselves). The Judge further found that Claimant’s medical expert’s testimony was not competent because “where, as here, a WCJ rejects a claimant’s testimony concerning the history of an alleged work-related injury, it follows that the expert medical testimony premised on that history is not competent.” The Commonwealth Court thus affirmed the Workers’ Compensation Appeal Board and denied the appeal.
Elder v. Crane Resistoflex (WCAB), No. 788 C.D. 2023 – UNREPORTED
Claimant appealed from a decision denying the contingency fee agreement between Claimant and Claimant’s counsel regarding Claimant’s entitlement to twenty percent (20%) of Claimant’s medical benefits but approving Claimant’s counsel’s share of twenty percent of indemnity benefits. The Workers’ Compensation Judge found as follows:
Based on a review of the evidence as a whole, this [WCJ] finds that although Claimant testified[] he understands the fee agreement relates to both medical and indemnity, there was no testimony to indicate whether Claimant knows exactly how much his future medical expenses will be and what portion, if any, he may be liable for if a fee was awarded on his medical benefits. The fee agreement is reasonable under the [Workers’ Compensation Act (Act)] as it pertains to indemnity benefits only and, if and when, Claimant receives indemnity benefits, [C]ounsel’s fee is approved.
The Commonwealth Court determined that because a twenty percent contingency fee is per se reasonable, and because the balance billing prohibition under Section 306(f.1)(7) protects Claimant from a provider seeking the outstanding balance directly from Claimant, the Judge erred in finding that Claimant’s testimony was insufficient to warrant the approval of the fee. The Commonwealth Court reversed and remanded to the Workers’ Compensation Appeal Board.
Zimmitt v. City of Philadelphia (WCAB), No. 1597 C.D. 2022 – UNREPORTED
Claimant appealed pro se from a decision granting a termination petition. In particular, Claimant argued that the Workers’ Compensation Judge erred in rejecting the opinion of her expert because he was her treating physician. The Judge found that Claimant’s expert (Dr. Simon), although her treating doctor, had only seen her on four occasions and his physical examinations were not detailed (Dr. McHugh, the IME doctor, included a much more thorough analysis of the physical examination in his report, including the results of multiple provocative maneuvers not performed by Dr. Simon). The Commonwealth Court found that although greater deference can be paid to a treating doctor, a judge is under no obligation to accept that opinion. Thus, the Commonwealth Court affirmed the lower courts and denied the appeal.
Walker v. City of Philadelphia (WCAB), No 885 C.D. 2023 – UNREPORTED
Claimant appealed from a decision granting a modification petition based on an impairment rating evaluation finding Claimant fifteen percent disabled. Claimant was arguing that Act 111 of 2018 should not apply to work injuries occurring before that Act’s effective date and that Act 111 of 2018 effected an unconstitutional delegation of legislative authority. The Commonwealth Court rejected both arguments.
Chester Water Authority v. Swiggett (WCAB), No. 824 C.D. 2023 – UNREPORTED
Employer appealed from a decision granting Claimant’s Claim Petition. Claimant sustained an injury in 2016 and received benefits before those benefits were suspended based on a return to work. Employer subsequently prevailed on a Termination Petition finding that Claimant was fully recovered from the 2016 injury as of February 24, 2020. That decision was circulated on July 13, 2021. On December 22, 2021, Claimant filed a Claim Petition alleging that Claimant sustained a back injury on January 20, 2021 due to repetitive heavy work. On January 27, 2022, Claimant filed a Reinstatement Petition seeking to reinstate benefits as of January 21, 2021 from the 2016 injury alleging that he sustained a worsening of condition. The Workers’ Compensation Judge denied the Reinstatement Petition but granted the Claim Petition. Employer argued that “in denying Claimant’s reinstatement petition, the WCJ found no recurrence or worsening of the 2016 work injury so [t]he same findings in support of the denial of the reinstatement petition cannot support an aggravation of or a new low back injury.” The Commonwealth Court affirmed, finding that the Judge was free to accept the testimony of Claimant’s medical expert that Claimant sustained a new injury. Thus, the Commonwealth Court affirmed the lower courts.
Hines v. Aria Health (WCAB), No. 708 C.D. 2023 – UNREPORTED
Claimant appealed from a decision granting a Modification Petition based on an impairment rating evaluation finding Claimant less than thirty-five percent disabled. Claimant did not submit any evidence in opposition to the IRE doctor. The underlying claim was originally admitted for a crush injury but was later modified by judicial decision to CRPS of the right upper extremity and then again to include a dental injury and to require payment of medical bills for a colonoscopy. Employer’s medical expert on the Modification Petition had assessed four percent permanent disability secondary to the right upper extremity CRPS. The Commonwealth Court noted that Claimant was correct that a physician performing an IRE is not limited by the description of injury in a notice of compensation payable or a prior decision. An IRE physician must consider all conditions he or she detects that may be causally related to the work-injury, and a workers’ compensation judge may reject an IRE that fails to address conditions attributable to the injury. The Commonwealth Court found that the IRE doctor did address the right lower extremity CRPS and crush injury, even though he did not assess any permanent disability with respect to the same (the doctor found that “even though [Claimant] had been provided with a diagnosis of [CRPS] involving the right lower extremity previous to my evaluation, I did not see any objective evidence of it when I evaluated her.”). The doctor likewise testified that Claimant no longer showed any evidence of the crush injury being an active problem. Lastly, he testified that the dental condition and the colonoscopy did not change his impairment rating and further noted that Claimant had not mentioned either condition to him at the time of her evaluation. Thus, the Commonwealth Court affirmed the lower courts.
Miles v. City of Philadelphia (WCAB), No. 1111 C.D. 2023 – UNREPORTED
Claimant appealed from a decision granting a Modification Petition based on an impairment rating evaluation finding Claimant less than thirty-five percent disabled. As with the Walker case referenced above, Claimant was arguing that Act 111 of 2018 should not apply to work injuries occurring before that Act’s effective date and that Act 111 of 2018 effected an unconstitutional delegation of legislative authority. As in Walker, the Commonwealth Court rejected both arguments.