C. Byfield v. WCAB (Philadelphia Housing Authority)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Byfield, :

: No. 2002 C.D. 2015

Petitioner : Submitted: April 8, 2016

:

v. :

:

Workers' Compensation Appeal :

Board (Philadelphia Housing :

Authority), :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE WOJCIK FILED: July 26, 2016

Christopher Byfield (Claimant) petitions for review of the September

18, 2015 order of the Workers’ Compensation Appeal Board (Board), affirming the

decision of a workers’ compensation judge (WCJ) to deny Claimant’s Petition to

Review Compensation Benefits (review petition). The review petition requested

an award of costs and attorney’s fees incurred by Claimant in successfully

defending a suspension petition filed by the Philadelphia Housing Authority

(Employer).1 We affirm.

1

Section 440 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736,

added by Section 3 of the Act of February 8, 1972, as amended, provides in part as follows:

(a) In any contested case where the insurer has contested liability

in whole or in part, including contested cases involving petitions to

terminate, reinstate, increase, reduce or otherwise modify

compensation awards, agreements or other payment arrangements

(Footnote continued on next page…)

In August 2010, Claimant sustained work-related injuries in the nature

of strains and sprains of the lumbar, cervical, and thoracic spine and a contusion of

the right wrist. Employer issued a notice of compensation payable acknowledging

liability for those injuries. In February 2011, Employer filed a suspension petition

under Section 306(f.1)(8) of the Act,2 alleging that Claimant had refused

reasonable medical treatment and was ineligible for benefits effective January 31,

2011. Claimant filed an answer denying this allegation and asserting that he was

being treated by company doctors, he had returned to work, and there were no

benefits to suspend.

Employer presented the deposition testimony of Scott K. Epstein,

M.D., who conducted an independent medical examination of Claimant on

December 16, 2010. Dr. Epstein determined that Claimant was not fully recovered

from his lumbar injury but was capable of light duty work. He said that he

(continued…)

or to set aside final receipts, the employe or his dependent, as the

case may be, in whose favor the matter at issue has been finally

determined in whole or in part shall be awarded, in addition to the

award for compensation, a reasonable sum for costs incurred for

attorney’s fee, witnesses, necessary medical examination, and the

value of unreimbursed lost time to attend the proceedings:

Provided, That cost for attorney fees may be excluded when a

reasonable basis for the contest has been established by the

employer or the insurer.

77 P.S. §996(a).

2

Section 306(f.1)(8) states that “[i]f the employe shall refuse reasonable services of

health care providers, surgical, medical and hospital services, treatment, medicines and supplies,

he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to

have resulted from such refusal.” 77 P.S. §531(8).

2

recommended a medical procedure involving lumbar facet injections bilaterally,

which had minimal risks and a high likelihood of success. On cross-examination,

however, Dr. Epstein testified that he had no information that Claimant ever

refused lumbar facet injections.

At a September 12, 2011 hearing, Claimant testified that he was

currently working light duty for Employer and receiving treatment from Michael

R. McCoy, M.D. Claimant said that he first saw his family physician, Dr. Rosales,

and he acknowledged that he missed two appointments with Dr. Rosales in January

and February 2011. Claimant stated that he sought a second opinion from Dr.

McCoy, who was providing him therapy, medications, and trigger point injections

in his back. Claimant testified that if Dr. McCoy advised him to get a set of

lumbar facet point injections, he would agree to undergo that treatment. Claimant

insisted that he never refused any medical treatment.

Claimant also presented the deposition testimony of Dr. McCoy. In

relevant part, Dr. McCoy stated that he scheduled trigger point injections for

Claimant, as well as physical therapy and medication for pain. Dr. McCoy

testified that trigger point injections are usually ordered first because they are less

invasive, adding that if they did not work, he would recommend lumbar facet point

injections.

In his January 31, 2013 decision, the WCJ relied on the consistent

testimony of the medical experts and found that lumbar facet injections constituted

a reasonable and necessary medical treatment for Claimant’s work injury. The

WCJ granted Employer’s petition and suspended Claimant’s compensation

benefits as of January 31, 2011.

3

Claimant appealed to the Board, arguing that the record contained no

evidence to show that Claimant had ever refused lumbar facet injections. Claimant

sought reversal of the WCJ’s decision and specifically requested interest and

unreasonable contest attorney’s fees.

The Board concluded that Employer had not met its burden of proving

that Claimant refused reasonable and necessary medical treatment and reversed the

WCJ’s decision. Although the Board acknowledged Claimant’s request for

attorney’s fees, the Board did not address that request in its opinion and order of

August 26, 2013. Neither Claimant nor Employer appealed from the Board’s

order.3

On September 13, 2013, Claimant filed a review petition, seeking

litigation costs and attorney’s fees incurred during litigation of the suspension

petition. The review petition was assigned to a different WCJ, who concluded that

Claimant’s proper recourse would have been to appeal the Board’s order or request

a rehearing.4 Because Claimant did neither, the WCJ held that he was barred from

recovering those costs and attorney’s fees through a separate petition.

Claimant appealed to the Board, which concluded that Claimant had

the opportunity to request a rehearing to address the award of costs and fees or

appeal that issue to Commonwealth Court, yet failed to do so. The Board held that

Claimant’s review petition was barred by collateral estoppel5 because the issue of

3

Section 423(a) of the Act provides a twenty-day appeal period, which is measured in

calendar days and is computed from the date upon which the decision is mailed. 77 P.S. §853.

4

Section 426 of the Act states that “the board, upon petition of any party and upon cause

shown, may grant a rehearing of any petition upon which the board has made an award or

disallowance of compensation or other order or ruling . . . .” 77 P.S. §871.

(Footnote continued on next page…)

4

litigation costs and attorney’s fees was identical to that raised in the prior litigation,

was actually litigated, was essential to the judgment, and was material to the

adjudication. Further, the Board rejected Claimant’s argument that he had no

standing to appeal the Board’s order because he was not aggrieved by the Board’s

decision. The Board explained that although Claimant had prevailed in the

suspension proceeding, he was aggrieved by the Board’s failure to award costs and

attorney’s fees and, therefore, he had a right to request a rehearing or to appeal the

Board’s order to this Court. Thus, the Board affirmed the WCJ’s order.

On appeal to this Court,6 Claimant argues that the Board’s failure to

award litigation costs and unreasonable contest attorney’s fees in the suspension

proceeding was a mechanical error properly addressed by a petition for review

under Section 413(a) of the Act.7 Claimant further asserts that the Board erred in

(continued…)

5

The principle of collateral estoppel operates to bar relitigation of an issue of law or fact

in a subsequent action only when the following factors are demonstrated: (1) the legal or factual

issues are identical; (2) they were actually litigated; (3) they were essential to the judgment; and

(4) they were material to the adjudication. PMA Insurance Group v. Workmen’s Compensation

Appeal Board (Kelley), 665 A.2d 538, 541 (Pa. Cmwlth. 1995). Because we conclude that

Claimant cannot pursue the relief he seeks under section 413 of the Act, we do not decide

whether this doctrine applies to the present appeal.

6

Our scope of review is limited to determining whether constitutional rights were

violated, whether the adjudication is in accordance with the law, or whether necessary findings

of fact are supported by substantial evidence. Milner v. Workers’ Compensation Appeal Board

(Main Line Endoscopy Center), 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010).

7

Section 413(a) of the Act states:

A workers’ compensation judge may, at any time, review and

modify or set aside a notice of compensation payable and an

original or supplemental agreement or upon petition filed by either

party with the department, or in the course of the proceedings

(Footnote continued on next page…)

5

holding that he had standing to appeal the Board’s decision when in fact he

prevailed in the suspension proceeding. We disagree.

Under Section 440 of the Act, a prevailing claimant is entitled to

recover litigation costs and an award of reasonable attorney’s fees unless the

record establishes that the employer had a reasonable basis for contesting liability.

Wood v. Workers’ Compensation Appeal Board (Country Care Private Nursing),

915 A.2d 181, 186 (Pa. Cmwlth. 2007). A determination of whether the

employer’s contest was reasonable is a question of law that depends upon the facts

and the legal issues involved in each case. Id. A reasonable contest is established

when the medical evidence is conflicting or susceptible to contrary inferences and

there is an absence of evidence that an employer’s contest was frivolous or

intended to harass the claimant. Id.

Relying on Drozd v. Workers’ Compensation Appeal Board (The

Lion, Inc.), 485 A.2d 96 (Pa. Cmwlth. 1984), Claimant argues that because he

prevailed in the suspension proceeding, the Board’s failure to award costs and

attorney’s fees is a mechanical error appropriately corrected by way of a petition

for review. In Drozd, the claimant was awarded total disability benefits at the rate

of $60.00 per week. The employer appealed to the Board, which affirmed.

Neither party appealed the Board’s decision. Thereafter, the claimant filed a

(continued…)

under any petition pending before such workers’ compensation

judge, if it be proved that such notice of compensation payable or

agreement was in any material respect incorrect.

77 P.S. §771.

6

modification petition alleging that the referee8 relied on an obsolete version of

Section 305(a) of the Act, 77 P.S. §511, to calculate the amount of benefits

payable. The claimant asserted that he was entitled to benefits in the amount of

$86.14 per week and that the referee’s error could be corrected under Section 413

of the Act. However, the referee denied the claimant’s petition, and the Board

affirmed.

On appeal, we reversed the Board’s order and held that the referee’s

mechanical error in the computation of the claimant’s benefits was not

irremediable, despite the claimant’s failure to appeal. Instead, we determined that

Section 413 of the Act permits a referee to modify an award to correct mechanical

errors in the application of the statute. We noted that the matter did not concern

the merits of the original award, but only the question of its satisfaction. Because

the claimant in Drozd was totally disabled and entitled to compensation, he should

have received $86.14 per week during total disability instead of $60.00 per week,

the amount he was awarded. Thus, we held that it was error on the part of

compensation authorities not to have modified the original award to correct the

mechanical error.

In contrast to Drozd, this case does not involve a mechanical or

mathematical error relating to the satisfaction of an award. Unlike the claimant in

Drozd, Claimant has not been awarded the costs and attorney’s fees he now seeks.

Moreover, and, contrary to his implied assertions, an award of attorney’s fees to a

prevailing claimant is not automatic. Mason v. Workmen’s Compensation Appeal

8

Workers’ compensation judges were formerly known as referees.

7

Board (Wheeling-Pittsburgh Steel Corp.), 600 A.2d 241, 244 (Pa. Cmwlth. 1991).9

Therefore, even if the absence of an award of attorney’s fees was inadvertent on

the Board’s part, the mistake goes to the merits of the case, not to the satisfaction

of the award, and it cannot be corrected by way of a review petition under Section

413 of the Act.

Claimant maintains that he did not have standing to file an appeal

from the Board’s order because, having prevailed on appeal in the suspension

proceeding, he was not “aggrieved.”10 However, a determination of whether an

individual is aggrieved and thus has standing to appeal is made on a case-by-case

basis. Chiro-Med Review Co. v. Bureau of Workers’ Compensation, 908 A.2d 980

(Pa. Cmwlth. 2006). Generally, a party who prevailed in a proceeding below is not

an aggrieved party and, consequently, has no standing to appeal. Almeida v.

Workers’ Compensation Appeal Board (Herman Goldner Co.), 844 A.2d 642, 644

(Pa. Cmwlth. 2004). However, “[c]ourts allow a party to appeal where the remedy

awarded is claimed to be insufficient.” Chiro-Med Review Co., 908 A.2d at 984;

Robb v. Workers’ Compensation Appeal Board (Department of Public Welfare),

718 A.2d 875, 880 (Pa. Cmwlth. 1998).

In Robb, the employer filed a petition for a physical examination, and,

thereafter, the WCJ granted the employer’s request for supersedeas. At a hearing

9

In affirming the Board’s conclusion that the employer’s contest was reasonable, we

specifically held in Mason that the reasonableness of an employer’s contest does not depend on

its success in litigating a matter, but rather upon whether the employer has an objective basis for

its actions. Id. at 243-44.

10

Pursuant to Section 702 of the Administrative Agency Law, “[a]ny person aggrieved

by an adjudication of a Commonwealth agency who has a direct interest in such adjudication

shall have the right to appeal therefrom . . . .” 2 Pa.C.S. §702. See also Pa.R.A.P. 501 (any party

aggrieved by an appealable order may appeal therefrom).

8

on the petition, the claimant’s counsel conceded that the employer was entitled to a

physical examination but argued that the WCJ improperly granted supersedeas

when the only petition pending was for a physical examination. Ultimately, the

parties agreed that the supersedeas should be lifted once the claimant submitted to

an examination. The claimant complied, and the WCJ entered an order indicating

that the petition was withdrawn. However, the WCJ’s order did not reinstate the

claimant’s benefits.

The claimant appealed to the Board, which concluded that the

claimant lacked standing. However, on appeal, we reversed the Board’s order and

determined that the claimant had standing because the WCJ’s order effectively

denied the claimant benefits. We noted that a contrary holding “would produce the

grossly inequitable result of essentially leaving [the claimant] with a right without

a remedy . . . .” Robb, 718 A.2d at 880.

We relied on Robb in Chiro-Med Review Co. In that case, a

utilization review organization (URO) petitioned for review of a hearing officer’s

order, which sustained the URO’s appeal from a revocation of its authorization to

conduct utilization reviews but failed to compensate it for losses it sustained during

the period of revocation. The Bureau of Workers’ Compensation (Bureau) filed a

cross-appeal and a motion to quash, arguing, inter alia, that the URO lacked

standing to appeal. We rejected that argument, explaining as follows:

Here, Petitioner complains [that] the Hearing Officer

denied it a meaningful remedy to compensate it for

revenue lost during the [25-months from the Bureau’s

revocation of] its authorization until it was reissued ….

In its proposed findings of fact, Petitioner requested the

assignment of additional utilization reviews; however,

the Hearing Officer failed to address Petitioner’s request.

9

As in Robb, Petitioner’s appeal is the only means by

which it may challenge the Hearing Officer’s failure to

compensate it for the Bureau’s actions. Thus, although

Petitioner “prevailed” below, we conclude it has

standing because it did not receive all the relief it

requested.

Chiro-Med Review Co., 908 A.2d at 985 (emphasis added).

We conclude that Chiro-Med Review Co. and Robb are controlling

and that Claimant had standing to appeal the Board’s order. Although Claimant

prevailed before the Board in his appeal of the suspension order, he only prevailed

in part; because the Board did not address his request for costs and attorney’s fees,

its order did not entitle him to receive payment for expenses he incurred in

defending Employer’s suspension petition. As a result, and because an award of

attorney’s fees is not automatic, Claimant was adversely affected by the Board’s

decision, and thus, he was aggrieved. Claimant’s proper remedy was to request

reconsideration by the Board or file an appeal to this Court. Claimant failed to do

either. Consequently, the Board’s order is final and cannot be collaterally attacked

by a subsequently filed review petition.

For these reasons, we affirm the Board’s order.

MICHAEL H. WOJCIK, Judge

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Byfield, :

: No. 2002 C.D. 2015

Petitioner :

:

v. :

:

Workers' Compensation Appeal :

Board (Philadelphia Housing :

Authority), :

:

Respondent :

ORDER

AND NOW, this 26th day of July, 2016, the order of the Workers’

Compensation Appeal Board, dated September 18, 2015, is affirmed.

__________________________________

MICHAEL H. WOJCIK, Judge