Supreme Court Defines “Reasoned Decision”

"[W]e hold that a decision is ‘reasoned’ for purposes of Section 422(a) [of the Workers’ Compensation Act] if it allows for adequate review by the Workers’ Compensation Appeals Board (WCAB) without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards.  A reasoned decision is no more, and no less,” according to the Supreme Court of Pennsylvania in Daniels v. WCAB (Tri-State Transport).  In Daniels, Supreme Court addressed for the first time the 1996 amendment to the Act adding a requirement that Workers’ Compensation Judge (WCJ) decisions be “reasoned.”  This opinion, though not fully satisfactory, does require more than conclusory fact finding by the WCJs.

It has long been the law that a WCJ is the sole finder of fact, and that a judge’s findings may not be disturbed on appeal if they are supported by substantial evidence.  Historically, WCJs have not been required to state the particular reason why they resolve conflicting evidence one way or another, except to note that one witness is deemed credible, while another is not. 

In 1996, as part of the Act 57 Amendments to the Act, Section 422(a) was amended as follows: 

All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decision so that all can determine why and how a particular result was reached.  The…judge shall specify the evidence upon which the…judge relies and state the reasons for accepting it in conformity with this Section.  When faced with conflicting evidence, the…judge must adequately explain the reasons for rejecting or discrediting competent evidence.  Uncontraverted evidence may not be rejected for no reason or for an irrational reason; the…judge must identify that evidence and explain adequately the reasons for its rejection.  The adjudication shall provide the basis for meaningful appellate review.

The WCJ in Daniels granted a Termination Petition, accepting as credible the testimony of the defense medical expert.  The relevant findings, in their entirety, follow: 

“16. Based upon a review of the evidentiary record as a whole, this Judge finds the testimony of the Claimant is not credible or persuasive.

17. Based upon a review of the evidentiary record as a whole, this Judge finds the opinions of [the defendant’s expert] to be more credible and persuasive than the opinions of [the claimant’s expert].  Accordingly, the opinions of [claimant’s expert] are rejected wherever inconsistent with the opinions of [the defense expert].

18. This Judge finds Claimant was fully recovered from the December 13, 1990 work injury as of November 7, 1991.”

On claimant’s appeal, the Board affirmed, as did Commonwealth Court.  The court, interpreting the “reasoned decision” requirement of Section 422(a), simply “determined that the WCJ provided an adequate explanation for her determination by outlining all of the evidence considered, stating the credible evidence on which she relied, and setting forth the reasons for” her decision.  The Supreme Court granted claimant’s Petition for Allowance of Appeal “to determine whether the [Judge] in this case failed to adequately explain on the record why she rejected claimant/appellant’s conflicting medical evidence pursuant to Section 422(a) of the Workers’ Compensation Act.”  The Supreme Court vacated and remanded, determining that the decision is not reasoned.

Justice Castille, writing for the court, exhaustively reviewed the numerous Commonwealth Court opinions analyzing the reasoned decision requirement since 1996.  Applying its view of what constitutes a “reasoned decision” to the findings of fact in this case, the court observed that here, as in most workers’ compensation cases, the expert witnesses testified by deposition so that “the WCJ did not observe the respective demeanors of the experts…”  In that situation, the court reasoned, the Judge’s resolution of the conflicting evidence cannot be supported by a mere announcement that she deemed one expert “more ‘credible and persuasive’ than another.”  Particularly where witnesses do not testify live, more is required.  According to the court,

“[A]bsent the circumstance where a  credibility assessment may be said to have been tied to the inherently subjective  circumstances of witness demeanor, some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a ‘reasoned’ one which facilitates effective appellate review.”  Thus, “Absent some articulation of the basis for her conclusion on credibility, we agree with the Commonwealth Court dissent in the case that the credibility [determination does] not meet the standard found in Section 422(a).”  In essence, the court ruled that where witnesses testify live before a judge, any credibility determination is adequate, but where deposition testimony is involved, a more detailed description of the reason why one witness is deemed more credible than another is required.

The Supreme Court’s opinion has already been applied by Commonwealth Court to vacate a WCJ’s decision.  In O’Donnell v. WCAB (United Parcel Service), Commonwealth Court, relying explicitly on Daniels, vacated a WCJ’s decision where no explanation of the credibility determination was made.  The court, reviewing the Findings of Fact, said,  “In the present case, few of the WCJ’s credibility determinations articulate a basis for their making.  Further, they also evidence inconsistency, fail to resolve all of the issues, and generally fail to allow for a meaningful appellate review unless the reviewing body may ‘imagine’ why the WCJ made the finding she did.  In short, the WCJ’s decision is not reasoned pursuant to Daniels.”

It asks little of a WCJ to explain the basis for a credibility determination, yet many judges still do no more than the minimum necessary.  Daniels gives hope for a decision-making process that is more satisfactory for the parties, and allows for more meaningful review of decisions thought to be irrational. 

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Commonwealth Court Confines Caso

A claimant’s decision to participate voluntarily in a vocational expert interview constitutes a waiver of any objection to that vocational expert’s testimony, according to Commonwealth Court in Wheeler v. WCAB (Reading Hospital, et al.).  The result in this case represents a significant step away from the rigid rule set forth in the court’s 2001 opinion in Caso v. WCAB (School District of Philadelphia), which held that, without prior approval of the Department of Labor and Industry, a Workers’ Compensation Judge (WCJ) could not approve the qualifications of a vocational expert, and rendered potentially unusable all earning power assessments performed by such experts.  (At press time, the Supreme Court’s opinion in Caso is still unknown). 

In Wheeler, the court rejected claimant’s argument that testimony from a department-approved vocational expert is indispensable for an employer attempting to demonstrate a claimant’s earning power.  In distinguishing and narrowing the holding of Caso, the court relied on the different procedural postures of the Wheeler case versus Caso.  Whereas claimant in Caso objected to and did not voluntarily attend a vocational interview upon employer’s request, thus forcing employer to file a Petition to Compel claimant’s attendance at a vocational interview, claimant in Wheeler voluntarily attended an interview with a vocational expert, whose subsequent report established that claimant has an earning capacity, and formed the basis of a Petition to Modify Compensation Benefits.   The WCJ in Wheeler found testimony of the vocational expert credible, but denied employer’s petition, relying on Caso.  The WCJ concluded that because the expert had not been approved in advance by the Department of Labor and Industry, employer’s petition must be denied.  The WCAB reversed the WCJ, and claimant appealed. 

A unanimous panel in Wheeler held that Caso does not support the proposition that a vocational interview is the required first step in assessing a claimant’s earning power.   Pointing to the plain language of Section 306 (b)(2), the court observed that modification of benefits based upon available jobs in the labor market “may”  require claimant to attend a vocational interview, but that the interview is not mandatory to assess earning power, making the qualification of the expert  “waivable.”  In addition, no objection to the testimony of the vocational expert was made during litigation of employer’s petition.

Wheeler represents a vindication for that class of cases where the vocational interview has been conducted and an earning power has been established based upon testimony of a vocational expert resulting from that interview.  Moreover, the Wheeler decision goes further, stating that unless objections to each and every step in the process are made, including in the Answer to the Petition, prior to the vocational interview, prior to or during the deposition of the vocational expert, and upon the admission of the testimony into the record, the competency objection is waived. 

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Loss of Pension Does Not Preclude Acceptance of Non-Union Work

A temporary suspension of pension benefits does not constitute loss of a “qualitative benefit” which justifies a claimant’s refusal to accept employment that is within his physical limitations, ruled Pennsylvania Supreme Court in the consolidated cases of City of Philadelphia v. WCAB (Szparagowski) and Milici v. WCAB (City of Philadelphia).  In this important opinion, the Supreme Court also clarified that an employer is not precluded from arguing that a claimant’s irreversible lung and heart diseases have improved to the point that work consistent with his restrictions is available and may be offered to him in order to suspend or modify his compensation benefits.

The court’s opinion limits a very difficult line of cases and gives hope that there may be options available in these situations.  Both claimants were working as firefighters for the City of Philadelphia when they sustained injuries that rendered them temporarily totally disabled.  Both injuries occurred before the Act 57 Amendments to the Workers’ Compensation Act in 1996, so that when, subsequent to their injuries, both claimants retired and began receiving City pensions, the pensions were paid in addition to the total disability benefits.

In 1995, after an IME found Szparagowski sufficiently recovered from his 1989 injury to return to sedentary or light work, the City offered him a job as a fire communications dispatcher.  He declined the offer.  In 1996, after two separate IME’s found Milici sufficiently recovered from his cardiac and pulmonary diseases and he could return to work, a fire communications dispatcher position was also offered to him. 

Szparagowski refused on the ground that accepting the job would result in a suspension of his pension payments.  Milici declined for the same reason but also asserted that the benefits of a person diagnosed with irreversible disease can never be modified.  The Supreme Court dismissed both arguments. 

With respect to the job offers, the court noted that since its 1987 opinion in Kachinski v. WCAB (Vepco Construction Co.), the procedure by which an employer may seek modification or suspension of a claimant’s benefits has been well established.  The employer must first produce medical evidence of a change in claimant’s physical capabilities; it must then prove that it has referred claimant to an “actually available” job within those capabilities; it must locate a job within the occupational category for which claimant has been given medical clearance, provide claimant a basic description of the job and vocational evidence classifying the open job; and finally, must produce evidence that it has referred claimant to the job.  “Once the employer fulfills these requirements,  [the court noted,] the burden shifts to the claimant to demonstrate that he followed through with the job referral in good faith.” 

Both claimants, however, relied on the 1993 opinion of the Supreme Court in St. Joe Container Co. v. WCAB (Staroschuck), where the court “was presented with the question of whether a job offer to a claimant could be considered ‘unavailable’ if it required the claimant to forfeit significant benefits to which he was entitled in his prior position.”  Claimant in Staroschuck was a union employee offered a non-union, light duty job.  “Under the union contract, the claimant would forfeit the seniority, security, and associated union benefits that he had acquired over thirty-six years of union employment if he worked in a non-union capacity for more than six months.”  To avoid this forfeiture, claimant refused the job offer. 

The court acknowledged that in St. Joe Container Company, it rejected a strict interpretation of Kachinski, “stating that in certain limited circumstances, a job that is offered to a claimant may be unavailable for reasons unrelated to the claimant’s physical capabilities.”  In St. Joe, claimant would forfeit significant qualitative benefits, the court observed, so that the job could not be considered actually available in order to avoid such a “harsh effect.” 

Yet, the City of Philadelphia claimants would forfeit no benefits.  Rather, the court reasoned, they would merely be required to temporarily forego receipt of pensions while earning income as civilian city employees.  Moreover, a complicated pension arrangement with the City would allow these employees to transfer from one pension plan with the City to another City pension plan, depending upon the length of time worked as a dispatcher,  and would never result in a situation  where they would receive less in future pension benefits than they were receiving at the time of the job offers.  In fact, both had excellent opportunities to receive greater pension benefits in the future.

The Supreme Court reasoned, “By being offered jobs as fire communications dispatchers, Claimants are simply being asked to choose between working for the City and collecting their pensions.  If they choose to resume work for the City, they will receive compensation for their work, but will forego present pension payments.  If, on the other hand, they desire to continue collecting their pension benefits, they must officially retire from the City’s employ and forego further City paychecks.  This choice is no different than that to which any non-injured City employee with a vested pension faces and thus, is the very choice Claimants would have had if they had never suffered a work-related injury.  Accordingly, we find no merit in Claimants’ assertion that accepting the dispatcher positions would require them to relinquish ‘qualitative benefits associated with [their] former position[s]’ because they would not be permitted to collect pensions during their period of re-employment with the City.” 

The court also dismissed an argument that the City should have been required to find non-city employment for them so that they could retain their pensions.  It did so because, “neither Claimant expressed any particular interest in employment in private sector or introduced any evidence that they had ever pursued employment with an employer other than the City.” 

With regard to Milici’s assertion that his irreversible disease precludes modification of his benefits, the Supreme Court was equally dismissive.  Milici relied on a 1993 opinion of the court in Hebden v. WCAB  (Bethenergy Mines, Inc.), where a workers’ compensation referee granted a claim petition, finding as fact that claimant was suffering from a permanent, pulmonary disease he had acquired through his employment.  Years later, employer filed a Termination Petition “asserting that the claimant was not suffering from pulmonary lung disease.”  Employer’s petition was denied by the Supreme Court because, “The Court considered the employer’s Petition for Termination to be a direct attack upon the prior judicial finding that the claimant suffered from an irreversible disease.  Under those circumstances, this Court held that the doctrine of res judicata barred the employer from relitigating the original medical diagnosis and thus required the denial of the Employer’s Termination Petition.”  Hebden does not apply to Milici’s case, however, because the City does not contend that he never had lung disease or cardiac disease, but has merely presented evidence of an improvement in his condition and work available with his new restrictions.  This is precisely what Kachinski requires.

With the potential reintroduction of disability claims for retired claimants under Scalise Industries and The PMA Group v. WCAB (Centra) (See, “Motivation Sufficient to Claim Disability,” Tucker Arensberg, Workers’ Compensation Newsletter, Fall 2002) and the limitation of credit for pension benefits under Section 204(a) of the Act to self-insured employers in the Commonwealth Court’s 2001 Opinion in Township of Lower Merian v. WCAB (Tansey), the City of Philadelphia cases are very important and provide strategies for limiting employer liabilities in the cases of retired claimants. 

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Commonwealth Court Affirms Finding that Ongoing Chiropractic Care Is Not Reasonable

Frequent or continuous chiropractic treatment can be very expensive, rarely results in a full recovery, and is frustrating for the insurer responsible for the bills.  Often an employer has an interest in questioning whether ongoing chiropractic treatment is still reasonable or necessary when, after many months and numerous visits, the injured worker is still unable to return to work, or has not shown improvement.  But, insurers may be hesitant to request Utilization Review (UR), fearing reversal at the Workers’ Compensation Judge (WCJ) level even when the UR determinations are favorable.

Recently, Commonwealth Court ruled in the favor of an employer challenging whether ongoing chiropractic treatment was reasonable or necessary.  Previously, the court in 1999 ruled that treatment may be considered reasonable or necessary even if it is designed to manage symptoms rather to cure or permanently improve a condition, in Cruz v. WCAB (Philadelphia Club).  This is the typical testimony of a claimant who claims a chronic condition and continues to receive chiropractic care years after a work injury, but never shows more than “brief” (hours or days) improvement.  However, in Jackson v. WCAB (Boeing), a WCJ found ongoing chiropractic care no longer reasonable or necessary despite the claimant’s chiropractor’s report indicating that claimant “receives treatment on an ‘as needed’ basis, and continues to work…” The chiropractor also stated that the periodic treatments reduced claimant’s “pain, inflammation and relieves muscle spasm.” 

Claimant, on appeal, argued that the evidence of his case is consistent with the controlling case law and the court’s reasoning in both Cruz and Glick v. WCAB (Concord Beverage Company), and supports reversal of the WCJ’s finding that ongoing chiropractic care was no longer reasonable or necessary. 

In Cruz, the court found claimant’s treatment was necessary to maintain claimant’s functional level, despite a lack of evidence showing functional improvement, because employer was unable to present testimony that disproved the chiropractor’s testimony.  Thereafter, the court held in Glick that even treatment which is “only palliative in nature and do[es] not produce lasting benefits,” may be reasonable and necessary. 

In Jackson, claimant sustained a back injury in May 1998, and filed a Claim Petition.  After seeing various providers, he began treating with a chiropractor in February 1999. The claimant’s petition was granted by WCJ Decision in November 2000.  Thereafter, a Utilization Review Request was filed by the employer challenging the reasonableness and necessity of the chiropractic care on and after February 3, 1999.  The Utilization Review Organization (URO) determined that only the chiropractic treatment up to July 10, 2000 was reasonable and necessary.  Thereafter, treatment was found to be no longer reasonable.

Two hearings were held on claimant’s subsequent Review Petition.  The UR Determination report was offered into evidence and found credible by the WCJ.  It stated,

“The periodic progress reports [of the treating chiropractor] demonstrate objective findings that unfortunately fluctuate throughout the course of care, confirming a chronic condition characterized by periodic exacerbations.” 

Claimant offered the chiropractor’s depositions from the prior Claim Petition litigation, and a supplemental report. The WCJ found that, although the chiropractor’s treatment was designed to reduce claimant’s pain and keep him working, the supplemental report did not address the opinion of the UR Determination that ongoing treatment after July 2000 was unreasonable. Moreover, the WCJ found that the UR Determination was more persuasive.  WCAB affirmed, emphasizing the reviewing chiropractor’s opinion that,

“Generally, passive physical modalities exhaust their objective potential after a relatively brief initial trial, superseded over the long term by active exercise.  The patient can learn to perform these on a solely self-monitored basis.”

Commonwealth Court affirmed on claimant’s appeal, and found that employer’s evidence, which was found credible by the WCJ, refuted the chiropractor’s supplemental report because the UR Determination stated the treatment “although initially effective, is far less effective over time and, indeed, the continued use could be ‘more of a disservice rather than a service.’”  In fact, the UR report indicated that claimant would benefit more from active home exercises.  Finally, because the WCJ accepted the Utilization Review Report as more credible than the treating chiropractor’s report, the “finding is conclusive and may not be disturbed on appeal, unless it is arbitrary and capricious.”

As with any Pennsylvania workers’ compensation case, the findings of fact entered by the WCJ will be affirmed on appeal if they are consistent with evidence of record, but Jackson demonstrates that it is possible to stop chiropractic treatment that is not beneficial and seems never to end. 

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Shift Change May Constitute Abnormal Working Condition

By Kenneth G. Scholtz, Esq.

A claimant who, for medical necessity, worked a night shift for thirteen consecutive years, was subjected to abnormal working conditions when his employer “required [him] to work rotating shifts despite written and oral communication from his treating physician that to do so would exacerbate his [pre-existing post-traumatic stress disorder] condition,” according to Commonwealth Court in Zink v. WCAB (Graphic Packaging, Inc.).  Claimant, George Zink, is a Vietnam veteran who suffered significant physical injuries in combat.  In 1974, he was diagnosed with “anxiety neurosis, chronic with depressive features, related to his war experience.  This diagnosis is now known as post-traumatic stress disorder (PTSD),”  according to the court.  Claimant was hired in 1974 under the Vietnam Era Veterans’ Readjustment Assistance Act, a federal law “designed to promote employment of Vietnam War veterans, with full knowledge of his pre-existing condition.” 

In 1983, claimant began working as a maintenance mechanic and continued in that position for 13 years.   Throughout this time, with employer’s knowledge, claimant “voluntarily traded shifts with other employees so that he could steadily work the third shift.”  Testimony in the case established that claimant is unable to sleep at night due to his PTSD.  “Working the third shift…allowed [claimant] to take his medications, which caused drowsiness, during the day so that he could function through the night shift and so that he could exercise his legs to keep them functional.”   

In September 1995, employer “adopted a rotating shift schedule,” and  required claimant “to work one week of day shift, one week of second shift and one week of third shift.”  Claimant tried, but was unable to get the sleep he required “which lead to increased stress, a worsening of his nerves and an increase in his leg and low back pain.”  Claimant began missing appointments with his physicians as well “because Employer assessed points for missing work.” 

The Workers’ Compensation Judge (WCJ) found that the rotating shift schedule aggravated claimant’s pre-existing PTSD and caused total disability as of July 1996, which continued until employer relented in January 1997 and allowed claimant to work night shift again.  Nonetheless, relying on Supreme Court’s 1998 opinion in Metropolitan Edison Co. v. WCAB (Warner), the WCJ denied the claim.  Under Metropolitan Edison, the WCJ concluded, an employee’s work schedule is a normal working condition and cannot constitute the cause of an injury compensable under the Act. 

Claimant appealed, and the WCAB affirmed.  Claimant appealed to Commonwealth Court, which reversed. The court noted first that, unlike the claimant in Metropolitan Edison, employer hired claimant with full knowledge of his pre-existing PTSD under a federal law designed to return veterans to the work place.  Second, unlike Metropolitan Edison, employer knew also that claimant worked night turn for thirteen consecutive years for the sole purpose of accommodating his pre-existing disability.

Claimant presented testimony from three experts, all of whom were found credible by the WCJ, that established “that it was medically necessary for [claimant] to work the third shift permanently to keep him in balance because PTSD prevents him from sleeping at night, that his  abdominal pain…increased after he began to work rotating shifts, that his emotional disease exacerbated to the pain in his legs, and that his chronic pain syndrome and sleep disorder were exacerbated to the point where he could no longer continue to work.”  Because employer “had specific knowledge of [claimant’s] special needs, and the actions he had taken to best accommodate those special needs,” according to Commonwealth Court, Supreme Court’s reasoning in Metropolitan Edison is not applicable.

The result is hard to reconcile with two other Supreme Court cases, Martin v. Ketchum, Inc., and Davis v. WCAB (Swarthmore Borough).  In those cases, Supreme Court ruled that whether the injury is physical or mental, when the precipitating events are of a mentally stressful nature, to obtain benefits, a claimant must establish “by objective evidence that he or she has suffered from a psychic injury and that it is other than a subjective reaction to normal working conditions.”  Claimant in this case was subjected to the same working conditions as all other employees because the work schedule changes applied to all mechanics.  But employer went too far in testing the limits of this reasoning when ignoring the undeniable fact that a medical necessity existed for claimant to work steady night shift. 

Ken Scholtz is an attorney in the firm’s Workers’ Compensation Practice Group. For more information on this topic, please contact Ken at 412.594.3903 or via e-mail at kscholtz@tuckerlaw.com.

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WCAB Rules: Employer Can Take Credit for Out of State Unemployment Compensation Benefits

In D’Orio vs. Contractor Labor Pool, claimant filed a Petition to Review Compensation Benefit Offset, alleging that her time of injury employer had unlawfully taken credit for unemployment compensation (UC) benefits paid to claimant from a subsequent out-of state employer.   Claimant’s sought reimbursement of the credit, interest and counsel fees. 

The facts are fairly straightforward.  Claimant completed and returned an LIBC-756, “Employee’s Report of Benefits for Offsets,” disclosing, as required by the Act, that she received UC benefits in the weekly amount of $243.00 from March 2001 to May 2001, in New Jersey.  Employer filed a “Notice of Workers’ Compensation Benefit Offset” form, taking an offset credit in the amount of the benefits.  Upon consideration of claimant’s petition, a WCJ concluded that employer is entitled to credit UC paid by another state.  Claimant appealed, arguing that the WCJ erred in granting credit.

Claimant advanced multiple theories in support of her appeal, including that the UC benefits in question were not paid by Pennsylvania, and were not attributable to the time of injury employer.  Claimant also cited case law in support of her position that section 204 (b) of the Act makes specific reference to the Pennsylvania Unemployment Compensation Act so that out-of-state benefits cannot be credited. Finally, she argued, Bureau of Workers’ Compensation (BWC) regulations reference the Bureau of Unemployment Compensation Benefits and Allowances (BUCBA), a Pennsylvania agency. The latter of these two arguments were designed to show that reference to Pennsylvania-specific regulations mean that only Pennsylvania UC benefits can be offset.

In rejecting these arguments, the Appeal Board noted that the credit is provided under Section 204(a), not Section 204(b).  Neither section 204(a) nor the relevant case law places any restriction on the phrase “unemployment compensation,” as defined by the Act.  Thus, the Appeal Board rejected claimant’s argument that the offset for UC is limited to benefits provided by Pennsylvania, adding that  204(a) also places no limitation on offsets for benefits paid by the time of injury employer.  Finally, the Board noted that claimant’s reliance on the reference to the BUCBA in the BWC regulations is misplaced, because the regulations deal with only specific, limited circumstances, none of which has to do with offsets for unemployment compensation.

This case is instructive for employers and demonstrates the need to be thorough when inquiring into the receipt of benefits from other sources.  It is also important to note that section 204(a), when dealing with other offsets (such as severance and pension benefits) specifically modifies that offsets by the phrase, “paid by the employer directly liable for the payment of compensation,” or “ to the extent funded by the employer directly liable for the payment of compensation.”   Had the Legislature intended to make only UC benefits paid in Pennsylvania or only those benefits paid by the time of injury employer subject to an offset, similar modifying language would have been used.

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Modified Duty Job Offers May Not Impose New Obligations On a Claimant

“[I]f an offered post-injury job imposes obligations different from those of claimant’s pre-injury employment, employer must produce evidence that the new responsibilities are within claimant’s capabilities,” according to Commonwealth Court in South Hills Movers v. WCAB (Porter).  The case involves a job offer requiring a 46 mile one way daily commute, made to a claimant known to have no driver’s license due to a DUI conviction.  Not surprisingly, employer lost its effort to modify claimant’s benefits.

In 1997, claimant was injured while working as a mover/packer, and received “full disability benefits.”  In 2000, a Petition to Modify or Suspend his benefits was filed by employer because claimant “was released to return to work and…there was light-duty work available with employer at its warehouse in accordance with the physical limitations set out by his treating physicians.” 

In support of its petitions, employer offered the deposition testimony of claimant’s treating physician, who testified, in accordance with the Workers’ Compensation Judge’s (WCJ) findings of fact, that claimant “is capable of performing the light-duty position offered to him by the employer on a full-time basis.”  Despite this finding, the WCJ denied employer’s petition because of claimant’s transportation difficulties.

Before his injury, claimant’s job involved significant out-of-state travel, and he was frequently away from home two weeks or more.  He did not commute daily to and from work, and when he did travel to work, he was driven by his wife because in 1979 he lost his license as the result of a DUI conviction.  Claimant did not accept the modified duty work because, in addition to his own lack of a driver’s license, his wife’s health problems had deteriorated to the point that she could no longer drive him to and from work daily, the WCJ found, in concluding that the job offered by employer was not actually available to claimant. 

Employer appealed, contending that claimant’s “transportation difficulties” are not work-related and therefore are irrelevant in assessing the suitability and availability of the job it offered.  After the WCAB affirmed, employer appealed to Commonwealth Court, which also affirmed.  The court reasoned that the requirement of a daily 46 mile one-way commute “imposes a new obligation on claimant that was never part of his pre-injury job duties.”  The court noted as well, “employer has not produced any evidence, such as the availability of public transportation or a car pool arrangement, to support a finding that [claimant] iscapable of commuting to employer’s  warehouse every day despite the fact that he does not have a valid driver’s license and can no longer rely on his wife for transportation.  Accordingly, employer has failed to meet its burden in demonstrating that the offered light-duty position is actually available.” 

The court’s opinion is sensible under the circumstances, but the language is problematical.  The mere recitation that the commute is a “new obligation” that was not part of pre-injury job duties, opens the door to many factors which may constitute new obligations, some relevant and many possibly not.  Employers must be cautious in ensuring that modified job offers are for work which is truly available or, perhaps, be seen as offering a job merely as a pretext to stop compensation. 

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In each issue, we introduce a member of the Workers’ Compensation Practice Group.

In this issue, we spotlight...

dennis r. sheaffer

Dennis R. Sheaffer is a shareholder in the firm’s Workers’ Compensation Practice Group and practices in the firm’s Harrisburg office. 

He handles a variety of Workers’ Compensation matters which include hearing loss matters for self-insured manufacturing clients.  Mr. Sheaffer handles complex construction litigation matters in state and federal court, as well as before the Board of Claims of the Commonwealth of Pennsylvania.  He represents a wide range of clients, including individuals, businesses, insurance companies and brokers, and the Commonwealth of Pennsylvania. 

Dennis graduated from Franklin & Marshall College in 1980, with a B.A. in both Mathematics and Government.  He received his J.D. from the National Law Center at George Washington University in 1983.  He has practiced in the general practice of law with Hepford, Swartz & Morgan in Harrisburg, Pennsylvania until its merger with Tucker Arensberg, P.C. in 1998. 

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SUPREME COURT UPDATE

The Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal on September 18, 2003, in Jeanes Hospital v. WCAB (Shawn Hass), on Petition of Shawn Hass.  Jeanes Hospital is well known as a significant limitation on the filing of review petitions seeking to enlarge the description of injury in a Notice of Compensation Payable, in which Commonwealth Court applied the three year statute of repose at Section 315 of the Act to bar such petitions.  The Supreme Court granted claimant’s Petition, but “limited to the issue of whether filing a Review Petition is an appropriate procedure by which to seek amendment of a Notice of Compensation Payable, even if filed more than three years from the date of the workplace injury, in order to add to the description of the covered injury(ies) such consequential medical and psychiatric conditions which are alleged and found to have resulted from the workplace incident or injury identified in the Notice of Compensation Payable, but were not in existence at the time the Notice of Compensation Payable was executed.” 

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SUPREME COURT UPDATE

The Supreme Court of Pennsylvania, on July 1, 2003, granted a Petition for Allowance of Appeal filed by the claimant in Heath v. WCAB (Pennsylvania Board of Probation and Parole), reported in the Spring 2003 Newsletter.  (See, “Commonwealth Court Rules Sexual Harassment Not Compensable,” Tucker Arensberg Workers’ Compensation Newsletter, Spring 2003).  In that case, Commonwealth Court ruled that sexual harassment is not compensable under the Pennsylvania Workers’ Compensation Act because it is the result of “personal, not work-related [conduct], and is certainly not part of the proper employer/employee relationship.”  The court observed that claimant has a remedy under Title VII of the Civil Rights Act of 1964.  The court noted in its Opinion, “The Federal District Courts of Pennsylvania have consistently rejected the defense of employers to such suits that the employee’s exclusive remedy is under the Workers’ Compensation Act.” 

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