workers' compensation law

- Summer 2002 -

The Commonwealth Court of Pennsylvania continues to narrow the scope of the defense involving violation of a positive work order. In Camino v. WCAB (City Mission and MCRA, Inc.), claimant Camino became a resident at City Mission, and began work as a launderer after a previous work-related injury to his hand while an employee of General Electric. He injured his back while mopping the floor of the laundry restroom. The employer denied benefits on the ground that claimant was outside the scope of his employment because he had been given a positive order to do no mopping. Claimant argued that, when he started his job, he had been given a list of tasks to perform, and one of the tasks on the list was "mopping the floor." Two weeks before claimant’s first day of work, City Mission mailed him a job description document which set forth that "in addition to duties connected with washing ‘articles,’ a worker ‘may perform other duties within work capabilities.’"

The workers’ compensation judge found that the claimant had violated a direct order not to mop or clean the restrooms. Because "mopping and cleaning the restrooms was not within the scope of claimant’s work duties," the judge denied the claim petition.

The Workers’ Compensation Appeal Board affirmed this decision, and the claimant appealed to Pennsylvania Commonwealth Court. Commonwealth Court applied its prior opinion in Nevin Trucking v. WCAB (Murdock), as well as the Pennsylvania Supreme Court’s seminal 1929 opinion in Dickey v. Pittsburgh and Lake Erie R.R. Co., and reversed the decision that denied the claim petition.

In Nevin Trucking, the claimant violated a positive work order to not change the tires on his tractor trailer; he was injured while changing the tires on his truck and was denied compensation benefits. In Dickey, claimant violated a positive work order and was killed by a passing train when he crossed a railroad track in an area where the employer had restrictedpedestrian traffic and built a pedestrian bridge to avoid such an occurrence; his widow was denied compensation benefits.

In Dickey, and several Superior Court cases that followed it, including Nevin Trucking, the Court applied a three-pronged test which set forth the criteria for denying benefits to a worker who has been injured as a result of disobeying an employer’s order: "(1) the injury was, in fact, caused by the violation of the order or rule…; (2) the employee actually knew of the order or rule…; (3) the order or rule implicated an activity not connected with the employee’s work duties…". Specifically, in Dickey, the Supreme Court reasoned that to be denied benefits, "The employee must not only have been injured while in violation of an order, but must have been engaged at the time of injury in an activity so disconnected with his or her regular duties as to be considered, with respect to the employer, nothing more than a ‘stranger’ or ‘trespasser.’" Commonwealth Court refused to place Camino in this category of claimants.

Addressing Camino’s case, the court found that the "janitorial-type activity of mopping and cleaning is not so foreign or disconnected from the duties of a worker who operated washers and dryers and placed away sheets as to render him or her a stranger or trespasser at the workplace, particularly where the normal duties of a resident launderer included mopping and cleaning." Moreover, the court noted that, unlike the claimants in Nevin Trucking and Dickey, Camino was not engaged in a matter of personal interest or convenience when he was injured; and he was clearly performing an activity that was in furtherance of the business or affairs of the employer.

Also, claimant had been given conflicting instructions from his employer; but regardless of that fact the court reasoned that by mopping the floor, he was not acting in a manner so "alien to his regular duties as to characterize him as a ‘stranger’ or ‘trespasser.’"

"Motivation" Sufficient to Claim Disability

Claimant sustained "numerous injuries" on July 19, 1995, while working in construction when a 500 pound pipe fell on him and struck him in the right shoulder, neck, and side of his chest. Although rendered completely unconscious, he missed only one or two days of work. Claimant continued working "in a limited capacity for four to five months," the court noted, but he testified that he "never really felt right physically." Claimant sought treatment with a variety of physicians, including his family internist, his chiropractor, and two cardiac specialists.

Claimant retired on July 1, 1996. During proceedings on his claim petition, he "admitted that none of his treating physicians" advised him to retire, but said he could not continue as a sheet metal worker because he just "wasn’t feeling right."

The cardiologists diagnosed a trauma related mitral valve injury and Claimant underwent mitral valve replacement surgery in February of 1997, about eight months after his retirement. About one week before the surgery, his claim for disability benefits was denied by the employer, by issuance of a Notice of Compensation Denial contending that while Claimant was injured at work in July 1995 "he suffered no disability as a result…". Employer also specifically denied that the mitral valve injury was related to the work accident.

Four physicians testified on Claimant’s behalf, only one of them pinpointing a date of disability. That physician "opined that Claimant’s condition had deterioratedto the point where he was physically incapable of working as a sheet metal worker as of about six months prior to his heart surgery." The workers’ compensation judge identified August 25, 1996, about two months after retirement, as the date of disability in approving the claim petition. The Board affirmed on employer’s appeal.

In its appeal to Commonwealth Court, employer cited Supreme Court’s 1994 opinion in Republic Steel Corporation v. WCAB (Petrisek), for the proposition that where disability occurs subsequent to voluntary retirement, workers’ compensation benefits are not payable. Employer asserted that claimant has "the burden of establishing that he was forced to retire through presentation of unequivocal medical evidence." Commonwealth Court rejected this argument, stating that while such evidence "must be presented on behalf of a claimant that a work-related injury or disease precludes continuation of employment" to establish disability, no authority, the court asserted, supports a "special requirement" that a claimant establish that retirement was caused by disability. "The claimant may establish through his own testimony his motivation to retire" and receive benefits even where disability occurred subsequently.

The court’s opinion in Scalise is directly contrary to the Supreme Court’s reasoning in the Republic Steel Corporation case. In that case, the Supreme Court denied the claim of a coal miner whose disability occurred subsequent to his retirement on the ground that he was not forced into a compulsory retirement because of his disabling disease and thus was not entitled to benefits. Scalise raises the specter of the resurrection of this entire class of claims, precluded by Republic Steel.

Court Defines "Employment Relationship" Calculating the AWW Requires Caution

Receipt of workers’ compensation benefits does not suspend the employment relationship, according to Pennsylvania Commonwealth Court in Merkle v. WCAB (Hofmann Industries). Thus, the words "employ" or "employed" as used in Section 309 of the average weekly wage (AWW) calculation section, are not limited to the actual days an employee performs work, but rather encompass the period of time that an employment relationship is maintained between the parties. Even if work is interrupted due to a period of work-related disability, the employment relationship continues.

Claimant in Merkle was injured on February 26, 1997, and was paid compensation at the rate of $399.93 per week based upon an average weekly wage of $599.90. Following the injury, claimant returned to work at various periods of time and Supplemental Agreements were issued. On March 13, 1998, claimant suffered a separate work-related injury. Pursuant to a Notice of Compensation Payable, claimant was paid compensation benefits for the March 13, 1998 injury at the rate of $280.50, based upon an AWW of $226.81. In calculating the AWW, employer utilized the formula set forth in Section 309(d) of the Act and relied on claimant’s actual earnings during the fifty-two week period immediately preceding the March 13, 1998 injury, including the periods when claimant had reduced earnings due to his 1997 work injury.

Claimant petitioned to review the Notice of Compensation Payable, contending that employer should not have used the periods during which he received workers’ compensation benefits in the calculation of his AWW because he had not "worked" during that time. Claimant argued that his AWW should have been calculated under Section 309(d.1) since he had not been "employed" for at least three consecutive periods of thirteen calendar weeks in the year prior to his injury.

Section 309(d) provides that if at the time of injury the wages are not fixed weekly, monthly, or yearly, the AWW shall be calculated by dividing by thirteen the total wages earned in the "employ" of the employer in each of the highest three of the last four consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding the injury, and by averaging the total amounts earned during these three periods. It should be noted that workers’ compensation benefits are not considered earnings in calculating an average weekly wage.

The workers’ compensation judge concluded that the employer correctly calculated the AWW pursuant to Section 309(d) and denied claimant’s petition. The Board affirmed on claimant’s appeal.

Upon its review, Commonwealth Court also rejected claimant’s argument. The court held that an injured employee’s AWW is determined by the proceeding time the claimant was "employed." Because Merkle was continuously employed, though not working, his AWW should be based on that time, and calculation under 309(d) was proper. The court stated that the claimant erroneously interpreted the word "employed" to mean "worked."

Although the 1996 changes to the Act attempted to simplify the methods (for injuries occurring on or after June 24, 1996), calculating a correct AWW is a tedious task. Caution should be taken to determine the correct wages as miscalculation may very well result in a dramatic overpayment, which employers may never be able to recoup.

Sick Leave Benefits Waiver Between Employer and Claimant

In Donegal School District v. WCAB (Haggerty) claimant alleged an injury to her hip and knee, and filed a claim petition alleging total disability commencing on November 18, 1998. While the claim was pending, claimant, a union member, received sick leave benefits from her employer equal to 100% of her salary for the first seven weeks of missed work, then "income protection benefits" equal to 60% of her salary for the following six months while off work.

The workers’ compensation judge granted the claim, disallowed employer credit for the sick leave and income protection benefits, but allowed subrogation for the income protection benefits. Credit for sick leave was disallowed despite the fact that claimant’s sick days were "restored" by the terms of a collective bargaining agreement after the injury was found to be work-related.

The judge reasoned that, because there was nothing in the collective bargaining agreement to allow for such a credit, it was improper, resulting in claimant receiving both full salary for the first seven weeks of disability, total disability benefits for the same period, and restoration of her accrued sick leave.

Employer appealed to the Workers’ Compensation Appeal Board, which affirmed. Employer then appealed to Commonwealth Court, contending that claimant would recover twice if credit for the sick leave is disallowed, and Commonwealth Court agreed, reversing the Board. The court found that claimant would receive a "windfall" if payments made to her for sick leave were not credited to the employer paying the workers’ compensation. The court reasoned that, allowing claimant to be paid her full salary for seven weeks, plus workers’ compensation, when in fact the sick leave benefits were restored for "use at some later date…" amounted to a windfall that was "in contravention of the collective bargaining agreement."

Employer also appealed the denial of credit for the income protection benefits, which was a form of insurance paid to claimant after her sick time was exhausted. The court found that the income protection benefits fell under Section 319 of the Act which provides for subrogation rather than credit.

Benefits for Disabling Depression May Continue After Full Recovery

Claimant is entitled to total disability benefits for a psychiatric disability, depression, which occurred as a result of a physical work injury, even where claimant is fully recovered from the physical injury, ruled Commonwealth Court in Family Counseling Center v. WCAB (Porter). So long as treatment for depression preceded recovery from the physical injury, continuing psychiatric disability is not an illogical result, the court reasoned.

Claimant in Porter injured her neck in October 1991. In March 1993, she underwent surgery, namely a discectomy and fusion at the C5-6 level, and her benefits were reinstated by the workers’ compensation judge’s order. Thereafter, in 1994, claimant began to receive treatment for depression.

On December 7, 1998, employer filed suspension and modification petitions alleging that as of October 1, 1998, claimant’s regular job was available and she was capable of performing the job. Conversely, on March 15, 1999, claimant filed a review petition, alleging that her work injury included a "psychiatric component." The petitions were consolidated for hearings before the judge.

Claimant presented testimony of Dr. Helfrich, who opined that she would not be able to do the work that was offered to her due to physical injuries and depression. She also presented testimony of a psychiatrist, Dr. Deoras, who began treating her in December 1997. He testified that claimant was suffering from major depression illness, and that her chronic pain, which followed her injury, and her resultant total disability, were a substantial cause of her depression.

Employer presented testimony of an Independent Medical Evaluation, Dr. Agnew, who examined claimant on August 19, 1998, and opined that there was no significant objective evidence to support her complaints, and that the claimant could perform the job offered to her. Finally, employer also presented the deposition testimony of a psychiatrist, who agreed with claimant’s psychiatrist that claimant has major depression illness that is in partial remission, and that claimant’s work injury is a factor in her depression. However, employer’s expert disagreed that claimant’s work injury was a significant factor in her depression.

After considering the evidence, the judge accepted Dr. Agnew’s opinion that claimant had recovered from her physical injury as of August 19, 1998, to the point where she was able to perform her pre-injury job duties on a full-time basis. However, the judge also accepted the expert opinion of Dr. Deoras that claimant is totally disabled by a psychiatric injury, and that claimant’s work injury was a substantial contributing cause of the psychiatric injury. Thus, the judge granted claimant’s review petition, modifying the description of claimant’s work injury to include a psychiatric injury, and dismissed employer’s suspension and modification petitions. The Workers’ Compensation Appeal Board, on employer’s appeal, affirmed, and employer appealed to Commonwealth Court.

Employer argued that the WCJ improperly and illogically concluded that claimant remains disabled as a result of a psychiatric disability related to her physical injury, after concluding that she was recovered from her physical injury. Employer cited Commonwealth Court’s opinions in Thomas Jefferson University Hospital v. WCAB (O’Hara), Washington Steel Company v. WCAB (Argo), and School District of Philadelphia v. WCAB (Coe), for the proposition that the court had previously ruled in those cases that it is "illogical" to find disability due to depression after recovery from the physical injury alleging causing depression.

In rejecting employer’s argument and affirming the Board, the court observed that the determining factor in each of those cases was that claimant’s recovery from the physical injury preceded the initial treatment for a psychiatric injury. In Porter, claimant "began receiving treatment for depression in 1994, long before she recovered from the physical work injury in August 1988."

Equity May Bar Claimant’s Petition to Review AWW Calculation

The "doctrine of laches is available in administrative proceedings where no time limitation is applicable, where the complaining party failed to exercise due diligence in instituting an action, and where there is prejudice to the other party," according to Commonwealth Court in Mitchell v. WCAB (Devereux Foundation). Laches, the equitable doctrine that means neglect to assert a claim, together with lapse of time and other circumstances was causing prejudice to adverse party and may ultimately bar the claim when finally made. It may bar a claimant’s petition to review her average weekly wage, but what facts are sufficient to establish the necessary prejudice were not addressed by the court.

In May 1988, claimant was injured at work and a Notice of Compensation Payable was issued establishing an average weekly wage of $323.22 and a compensation rate of $215.48 per week. In subsequent years, litigation resulted in various modifications to the claimant’s compensation rate based upon work availability.

"The procedure for changing a claimant’s disability status [from partial to total disability based on an Impairment Rating Evaluation (IRE)] is different from the procedure for modifying a claimant’s compensation rate," according to Commonwealth Court in Griffith v. WCAB (New Holland North America, Inc.). Griffith demonstrates the danger of mixing the procedures and seeking modification of claimant’s compensation based on testimony of an IRE physician, whose examination is based on criteria that may not be relevant to a claimant’s capacity to actually work.

Claimant was injured at work in September 1996, after the effective date of Act 57. He received benefits pursuant to a Notice of Compensation Payable. In September 1998, after receiving total disability benefits for a period of 104 weeks, claimant underwent an IRE at employer’s request. The IRE physician opined that claimant had a twenty-five (25%) impairment under the AMA Guides to the Evaluation of Permanent Impairment, and his disability status was modified to partial, though his compensation rate did not change.

The workers’ compensation judge dismissed employer’s petition finding that claimant was not capable of working in any capacity. The judge also reinstated claimant’s total disability status based upon the additional medical problems identified by the IRE physician. Finally, the judge expanded the description of injury on the Notice of Compensation Payable to include depression.

Employer appealed to the WCAB, which reversed, so claimant appealed to Commonwealth Court.

Claimant argued that while he did not appeal the initial impairment rating determination, in 1998, the validity of the determination was opened by employer when its subsequent modification petition was filed relying on testimony of the IRE physician. The court rejected claimant’s argument, based on its analysis of Section 306 of the Act, and noted that the procedures for changing disability status differ from those for changing claimant’s compensation rate. The court ruled that the IRE provision of the Act, Section 306(a.2), allows "an employee to appeal the change to partial disability at any time during the 500-week period of partial disability," but that any such petition must be based upon a subsequent impairment rating evaluation finding that claimant is more than fifty (50%) percent impaired, and not job availability testimony.

In Griffith, Commonwealth Court clarifies the distinction between the procedure for changing a claimant’s partial disability status and that of changing a claimant’s compensation rate. The case demonstrates the danger of relying on an IRE physician to testify regarding a claimant’s capacity to work at specific jobs, as the evaluation process for an IRE is markedly different from the IME process where job availability is the issue.