PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
12/1/2024 – 12/31/2024

CLAIM PETITION – BURDEN OF PROOF
PHYSICAL/MENTAL INJURY

County of Allegheny v. Michael Marzano (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: December 24, 2024

Issue:
Whether the WCJ erred by determining that Claimant met his burden of proving ongoing disability related to the work injury?

Background:
Claimant worked for Employer as a corrections officer at Employer’s jail. In August 2018, Claimant filed a Claim Petition alleging that on July 27, 2018, he was attacked by an inmate and sustained physical injuries to his left shoulder, arm, back, neck, and head. Claimant sought ongoing total disability benefits, payment of medical bills, and disfigurement benefits. Claimant amended his Claim Petition to include a psychological component to his work injury.  Employer acknowledged that Claimant suffered a work-related physical injury, which it accepted by issuing a “medical-only” NCP because Claimant was released to return to work in full-duty capacity three days after the injury. The NCP described the nature of the injury as “multiple lacerations.” Employer denied ongoing disability and other material allegations in the amended Claim Petition as well as the alleged work-related psychological injury.  The WCJ concluded that Claimant met his burden of proving that he sustained multiple contusions and stab wounds, PTSD and aggravation/exacerbation of preexisting anxiety, depression, and personality disorder. The WCJ determined that Claimant had been disabled since the date of injury and remains incapable of performing his time of injury position as a corrections officer due to the work injuries. The WCJ granted Claimant’s Claim Petition. Employer appealed to the Board, which affirmed the decision as to the claim petition.

Holding:
Substantial evidence supports a finding of ongoing disability related to the work injury, and the extent of the physical and mental injuries as found by the WCJ.  With respect to a claim petition, the claimant bears the initial burden of proving that his injury arose in the course of employment and was related thereto. If there is no obvious relationship between the injury and the work-related cause, unequivocal medical testimony is required to meet this burden of proof.  There was no dispute that Claimant sustained a physical injury from the stabbing assault requiring medical treatment. Employer accepted liability for the physical injury.  With regard to the mental injury, Employer did not recognize this injury.  The initial burden remained on Claimant to establish a mental work injury and ongoing loss of earning power related thereto. The WCJ was free to accept in whole or in part expert medical testimony.  Based on this credited expert testimony the WCJ found that Claimant suffered from PTSD and an aggravation/exacerbation of preexisting anxiety, depression, and personality disorder, which caused an increase in symptoms including anger, rage, and loss of emotional control.  As to whether the disability is ongoing, the WCJ relied upon claimant’s expert testimony that Claimant could only return to modified work with minimal inmate interaction due to ongoing symptoms. Employer has not made such a position available.  Substantial evidence supports the WCJ’s finding that the physical assault triggered Claimant’s PTSD and an exacerbation of his preexisting depression and anxiety disorder and was a substantial contributing factor to Claimant’s ongoing mental health symptoms.
Affirmed.

SUBROGATION
PRIVATE INSURER PAID MEDICALS PAID DURING CLAIM LITIGATION

City of Philadelphia v. Wayne Deloatch, et al (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: December 24, 2024

Issue:
Whether a third-party Insurer preserved a right of subrogation?

Background:
On December 12, 2012, original claimant/decedent filed a Claim Petition pursuant to Section 108(r) of the WC Act.  A WCJ granted the Claim Petition, concluding that claimant/decedent was entitled to medical benefits for lung cancer under Sections 108(r) and 301(c)(2) of the Act in the amount of $124,680.22.  The WCJ further determined that Insurer and its agent, HRI/Trover Solutions, established Insurer’s payment for medical benefits in the amount of $124,680.22, and that Insurer was entitled to subrogation pursuant to its preserved lien. Employer appealed to the Board.

Holding:
A subrogation lien must only be raised and established before the WCJ.  Here, Insurer established its subrogation lien before the WCJ on the claim petition, as evidenced by the December 14, 2016 decision. The Act mandates that interest shall accrue on all due and unpaid compensation at the rate of 10% per annum. Here, the context is payment of a subrogation claim held by the insurer for only the claimant’s work-related medical bills it had paid while litigation was pending. Accordingly, Insurer was entitled to interest on its subrogation lien, and the subrogation lien was established as of October 21, 2014, when Insurer introduced it before the WCJ.  Thus, it was not error to order Employer to pay interest on the subrogation lien from October 21, 2014.
Affirmed.

ADMISSABILITY OF EVIDENCE – HEARSAY
BUSINESS RECORDS EXCEPTION

Resources for Human Development v. Theresa Cornish (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 6, 2024

Issue:
Whether the WCJ’s finding of a violation the Act was based on inadmissible hearsay evidence?

Background:
Claimant suffered several work-related injuries.  Claimant filed a Penalty Petition alleging that Employer violated the Act when it denied payment of Claimant’s medical bills without first obtaining utilization review under Section 306(f.1)(6) of the Act.  Based upon the Provider’s billing agent’s testimony, the WCJ awarded penalties. Employer appealed to the Board, challenging the assessment of penalties, among other things. The Board affirmed the WCJ’s assessment of penalties.

Holding:
The decision to award penalties is a matter within the WCJ’s discretion.   The record in this matter failed to demonstrate a violation of the Act, justifying a penalty award, because Provider’s billing agent’s testimony was inadmissible hearsay.   Section 6108(b) of the Uniform Business Records as Evidence Act provides that a record of an act, condition or event “shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.”  Section 6108(b) does not require production of either the person who made the entries or the custodian of the record at the time the entries were made, or that the witness qualifying the business records has personal knowledge of the facts reported therein. The authenticating witness must, however, provide “sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence.”  Provider’s billing agent’s testimony does not meet the requirements of the business records exception to the hearsay rule.  Provider’s billing agent supplied no information relating to the preparation and maintenance of the records such that a presumption of trustworthiness.  Provider’s billing agent’s testimony constituted inadmissible hearsay, so that the WCJ erred in granting Claimant’s Penalty Petition.
Reversed, in part, Affirmed, in part.

UTILIZATION REVIEW – COLLATERAL ESTOPPEL
SERIAL PETITIONS

Upper Moreland Township School District v. Lillian Brooks (WCAB)
Commonwealth Court of Pennsylvania – Unreported Memorandum Opinion
Decided: December 20, 2024

Issues:
Whether collateral estoppel should have barred the WCJ from considering Claimant’s second UR request?

Background:
In 2015, Claimant suffered a work-related injury.   In late 2021, Claimant filed a utilization review (UR) request regarding 24-hour home care. A UR determined that such care was unreasonable or unnecessary. Claimant filed a petition for review with the WCJ. Meanwhile, in early 2022, Claimant filed a second UR request. A different UR organization doctor determined Claimant’s request was reasonable and necessary. Employer filed a petition for review with the WCJ from this request.  The WCJ heard Claimant’s and Employer’s petitions for review simultaneously.  The WCJ granted Claimant’s petition and denied Employer’s petition.  Employer appealed to the Board, which affirmed.

Holding:
Collateral estoppel bars re-litigation of an issue that was decided in a prior action.  It is generally inappropriate to file serial UR petitions unless there has been a change in the claimant’s medical condition, or a substantial period of time has elapsed. However, here, only one WCJ decision was at issue. To invoke collateral estoppel properly, Employer needed another decision in which the reasonableness and necessity of Claimant’s medical treatment was fully litigated, resolved, and binding.  Here, a single WCJ decided both Claimant’s and Employer’s UR petitions at the same time. The Court found there was no absolute bar to serial petitions, and under the unique circumstances of this case, declined to recognize one.  The WCJ’s decision was not precluded by collateral estoppel because it simultaneously reviewed two successive UR determinations, affording the parties an opportunity to fully litigate whether Claimant’s treatment was reasonable and necessary.
Affirmed.

LITIGATION COSTS
APPORTIONMENT OF EXPERT’S FEE

Denise Lawhorne v. Lutron Electronics Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 18, 2024

Issue:
Whether the WCJ’s partial reimbursement of Dr. Grodofsky’s fee, as opposed to a full reimbursement, is supported by the evidence of record or is incorrect as a matter of law?

Background:
On October 4, 2018, Claimant sustained an injury in the course and scope of her employment and subsequently began receiving workers’ compensation benefits. Following her return to work, Employer issued a Notice of Suspension or Modification to reduce her weekly disability benefits from full to partial. However, Claimant filed a Review Petition seeking to expand the description of her injury as well as a Reinstatement Petition and Penalty Petition. After the petitions were consolidated for disposition by a WCJ, Claimant withdrew her Penalty Petition and Employer filed a Termination Petition. The WCJ ultimately rejected Dr. Grodofsky’s testimony and denied Claimant’s Review and Reinstatement Petitions. However, the WCJ denied Employer’s Termination Petition.  It is undisputed that the Claimant did not present the deposition testimony of Dr. Grodofsky solely for the purpose of her Review and Reinstatement Petitions, but also to defend against Employer’s Termination Petition. Therefore, the WCJ determined that Dr. Grodofsky’s fee was payable, in part.  The Board affirmed.

Holding:
Instead of a winner-take-all analysis, Section 440(a) mandates that reasonable litigation costs be awarded when a claimant prevails in whole or in part.  As Claimant did not prevail on 2 of the petitions, he should not be entitled to the full reimbursement of Dr. Grodofsky’s fee.  Had Claimant been able to demonstrate that the entirety of Dr. Grodofsky’s testimony related to the defense of the Termination Petition, then Claimant would be entitled to its entirety.  While Dr. Grodofsky’s invoice does indicate the extent of his preparation, it does nothing to clarify the extent to which that preparation related to Claimant’s defense of the Termination Petition. The WCJ apportioned Dr. Grodofsky’s fee among the number of petitions he testified to because the WCJ was unable to segregate the costs related to the Termination Petition from those relating to the Reinstatement and Review Petitions. The WCJ and the Board extend the Court’s rationale in apportioning attorney’s fees to other litigation costs.
Affirmed.

JUDICIAL DISCRETION

Ryan Mills v. Ken-Crest Services (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 27, 2024

Issue:
Whether the WCJ’s decision is erroneous as a matter of law because the WCJ did not understand the diagnosis and drew an unsupported inference from testimony?

Background:
Claimant worked for Employer, who provides services to individuals with physical and mental disabilities. In 2020 a WCJ issued a decision and order ruling that Claimant suffered a work-related neck injury in an automobile accident.  There were two injury dates.  In 2021, Employer filed termination petitions, alleging that Claimant had, as of February 25, 2021, fully recovered from her work-related injuries of April 17, 2019, and June 24, 2019.  The WCJ determined that Claimant had fully recovered from her work-related injuries of April 17, 2019, and June 24, 2019, and granted Employer’s termination petitions. Mills appealed and the Board affirmed.

Holding:
The WCJ is the ultimate factfinder who must determine credibility and evidentiary weight. In this role, the WCJ freely evaluates the evidence offered and can accept or reject any witness’ testimony, in whole or in part, including that of medical witnesses.  The Court may overturn a credibility determination only if it is arbitrary and capricious, so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.  It is readily apparent that in this case, the WCJ painstakingly reviewed all of the testimony and evidence presented, set forth a detailed discussion of each witness’ testimony, and provided numerous bases for reaching her credibility determinations. WCJ did not misapprehend facts to such an extent that her credibility determinations must be overturned. While the WCJ improperly found that the impetus for surgery was cord compression rather than radiculopathy, that does not render the WCJ’s credibility determination void.  Viewing the WCJ’s opinion as a whole, there was no reason to disturb any findings or conclusions.  The WCJ provided numerous reasons for rejecting the testimony of Mills and her medical expert as not credible. There is no indication in the record that the WCJ’s credibility determinations were arbitrary and capricious, dependent on a misapprehension of material facts, or so otherwise flawed such that they need to be corrected.
Affirmed.

MODIFICATION PETITION

Michelle Bradley v. American Food and Vending Corp. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: December 23, 2024

Issue:
Whether the decision of a WCJ that granted the Modification Petition was in error?

Background:
Claimant sustained a work injury on December 26, 2017, that was recognized by Employer as head and neck injuries.  Employer filed the Modification Petition seeking to modify Claimant’s benefits based on a Labor Market Survey and Earning Power Assessment.  The WCJ held that Employer sustained its burden of proving that Claimant’s wage loss benefits should be modified based on an earning power assessment. As requested by Claimant, all nine jobs were sent to her through her counsel, with all necessary information to apply online. The jobs remained open for at least a week, which is sufficient time to apply online. Furthermore, the nine jobs were sent three at a time, at least a week apart, meaning that Claimant would have to apply for three jobs online in one week. The nine jobs met the expert’s restrictions and were vocationally suitable based on Mr. Dieckman’s credible testimony.   Claimant appealed the WCJ’s decision, and the Board affirmed.

Holding:
The Act authorizes a WCJ to modify or suspend a claimant’s benefits where a claimant has some earning power. Claimant’s arguments were nothing more than attacks on the credibility determinations of the WCJ. Employer sustained its burden of proving that the available positions remained open for a sufficient time to allow Claimant to apply.  Also, the Employer did not fail to produce evidence of a change in Claimant’s physical condition. The WCJ accepted the testimony of the expert, who opined that Claimant was able to work and who agreed that the jobs identified were appropriate. This credible testimony was sufficient to show that Claimant’s symptoms had improved to the point where she was capable of gainful employment.   Further, the Court found no error. The testimony of an expert, although based upon data not admissible in evidence, is legally competent if the data is of the type reasonably relied on by an expert in the particular field in forming an opinion on the subject. Because the expert testified that the FCE is the type of evaluation he would rely upon in rendering his opinions, the WCJ did not err in overruling Claimant’s hearsay objection to the FCE.
Affirmed.

PETITION FOR ALLOWANCE OF APPEAL FROM THE ORDER OF THE
COMMONWEALTH COURT – GRANTED

A Provider’s Financial Interest in Pharmacy

700 PHARMACY, Petitioner v. Bureau Of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund), Respondent (Multiple Cases)
SUPREME COURT OF PENNSYLVANIA.

On December 11, 2024 the Provider’s Petitions for Allowance of Appeal from the Order of the Commonwealth Court were GRANTED. The issue, as stated by petitioners, is:

PENNSYLVANIA LEGISLATIVE REVIEW

As of December 2024, the Senate L&I Committee is still reviewing this House Bill and it has not sent it back to the Senate for review, alteration, or consideration.

Regular Session 2023-2024

House Bill 930

Short Title:     An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation.  Expanding Workers’ Compensation for Permanent Disfigurement

Subject:           Expanding Workers’ Compensation for Permanent Disfigurement

This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.

Last Action:    Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]

NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
12/01/2024 – 12/31/2024

WORKERS’ COMPENSATION EXCLUSIVITY

Rodriguez v. Shelbourne Spring, LLC
Supreme Court of New Jersey – Unpublished Opinion
A-39 September Term 2023 089044; 2024 WL 5082260
Decided: 12/12/2024

Background:
Plaintiff Dionicio Rodriguez was employed by SIR. SIR had a Workers’ Compensation and Employers’ Liability Policy with Hartford. Rodriguez filed a petition for workers’ compensation benefits and began receiving benefits. Rodriguez then filed a personal injury complaint. Hartford disclaimed any obligation to defend SIR in the personal injury claim and argued the complaint had allegations of intentional wrongdoing. SIR filed a third-party complaint claiming that Hartford wrongfully disclaimed coverage because the complaint included allegations of intentional wrongdoing and non-intentional wrongdoing. Harford filed a Motion to Dismiss and SIR cross-moved for summary judgment. The trial Judge denied SIR’s cross-motion and granted Harford’s motion. The judge concluded that the policy expressly excluded intent based claims. SIR moved for reconsideration and filed a motion to amend its complaint to assert that the policy violated public policy. The judge denied reconsideration and the motion to amend. The Appellate Division affirmed the orders.

Holding:
SIR argues that Hartford owes a duty to defend against the allegations of negligence and gross negligence. Hartford argues that it has no duty to defend the negligence allegations because they are tort claims unrelated to benefits under workers’ compensation law. The Court determined that the suit seeks money damages for Rodriguez’s workplace injury, not for benefits as defined by the Act. Hartford satisfied its contractual obligation by providing workers’ compensation benefits. Additionally, the policy specifically excludes coverage of claims for “bodily injury intentionally caused or aggravated by SIR.” Since the claims are not covered under the policy, there is no duty to defend. Finally, the court determined amendment would be futile because the intentional wrong exclusion is not against public policy.
Affirmed.

NEW JERSEY LEGISLATIVE UPDATE

Assembly Bill 4750

Expands certain employer reporting requirements to include entities that employ or contract with individuals for financial compensation, including ridesharing and delivery technology platforms.

Last Action: December 19, 2024 – Passed by the Assembly

Assembly Bill 4371/S1943

Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.

Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee

Assembly Bill 4283

Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.

Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee

Assembly Bill 4559

Concerns certain workers’ compensation supplemental benefits and funding method.

Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee

Assembly Bill 2100

Provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks.

Last Action: September 19, 2024 – Reported out of Asm. Comm. With Amendments, and referred to Assembly Public Safety and Preparedness Committee

Senate Bill 3772

Concerns valuation of board and lodging with respect to workers’ compensation.

Last Action: December 5, 2024 – Referred to Senate Budget and Appropriations Committee

Senate Bill 794

Concerns workers’ compensation insurance requirements for certain corporations and partnerships. 

Last Action: December 5, 2024 – Reported from Senate Committee as a Substitute, 2^nd Reading