# Krushauskas v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · October 11, 2012 · 56 A.3d 64

URL: https://www.frixlaw.com/law-library/cases/4966450

## Case

- **Full name:** Thomas KRUSHAUSKAS v. WORKERS' COMPENSATION APPEAL BOARD (General Motors)
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 11, 2012
- **Citations:** 56 A.3d 64; 2012 Pa. Commw. LEXIS 291; 2012 WL 4829417
- **Precedential status:** Published
- **Opinion:** Dissent by Pellegrini
- **Judges:** Brobson, Covey, Jubelirer, Leadbetter, McCullough, Pellegrini, Simpson
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4966450

## How later opinions describe it (automated extraction)

- affirming a WCJ’s suspension of benefits where the employer did not file a suspension petition

## Opinion text

DISSENTING OPINION BY
President Judge PELLEGRINI.
I respectfully dissent from the majority opinion holding that in a proceeding on Claimant’s penalty petition in which Employer defends its unilateral suspension of benefits because the Claimant didn’t deserve the compensation, a defense akin by a murderer that the victim deserved to die, that the WCJ can suspend benefits without a suspension petition being filed. In doing so, the majority holds that as long as a party has notice of what is being sought, the WCJ has the right to decide anything in the context of any proceeding without filing anything. Because I do not believe the compensation system should be so free-form, I would hold that a penalty petition is just that — a penalty petition and benefits cannot be suspended unless the employer files a properly filed suspension petition.
Claimant suffered a rotator cuff tear while employed as a stock picker for Employer in 2005 and began receiving workers’ compensation benefits. On May 11, 2006, Claimant signed an Enhanced Retirement Program with Employer voluntarily terminating his employment. In 2008, Claimant filed a penalty petition alleging that Employer violated the provisions of the Workers’ Compensation Act 1 (Act) by unilaterally suspending his benefits as of July 1, 2006, without a supplemental agreement or a judicial order. Employer filed an answer denying the material allegations and arguing that Claimant had withdrawn from the workforce because he had taken voluntary retirement.
The WCJ found that Employer violated the Act by unilaterally suspending Claimant’s benefits without a supplemental agreement, notification of benefit offset or a judicial order, but denied the penalty petition because no award upon which penalties could be assessed was due as Claimant had voluntarily withdrawn from the workforce. Claimant appealed to the Board arguing that the WCJ erred in suspending benefits because Employer did not file a suspension petition or any other petition as well as finding that he voluntarily retired from the workforce. Claimant also contended that the WCJ erred in not awarding penalties for unlawfully suspending benefits. Without addressing Claimant’s argument regarding the WCJ’s authority to suspend benefits in the absence of a suspension petition, the Board affirmed the denial of Claimant’s penalty petition and suspended Claimant’s benefits because Claimant voluntarily retired from the workforce. This appeal by Claimant followed with Claimant raising the same issues he raised before the Board.
On appeal, the majority holds that the WCJ had the authority to suspend Claimant’s benefits even though the only petition before the WCJ was Claimant’s penalty petition. Unlike the majority, I would not *75 sanction Employer’s violation of the Act by permitting suspension of benefits in a penalty petition. I would remand for the calculation of benefits owed because of the illegal suspension and award of penalties.
The majority acknowledges that if an employer wants to change the character of a claimant’s disability, the employer must file a petition specifically requesting the relief sought. Hutter v. Workmen’s Compensation Appeal Board (Pittsburgh Aluminum Co.), 665 A.2d 554 (Pa.Cmwlth.1995). It goes on to state that in that case, this Court has described two categories of cases in which a WCJ can terminate benefits even though the employer has not filed a termination petition:
The first category of cases consists of instances in which a claimant files a claim petition and he/she is granted disability benefits for a closed period of time which are then terminated without a termination petition being filed by the employer. The rationale underlying the termination of disability benefits is that the claimant has the burden of proving the extent of his disability, and a referee may accordingly determine for what period of time such disability existed.
The second category where a termination of benefits is proper without a formal termination petition having been filed involves cases in which the employer files another type of petition but puts the claimant on notice that it is seeking a termination of benefits. A referee may properly consider an employer’s petition for modification of benefits as a petition for termination where the claimant would not have been misled by the form of the petition, had notice of the relief sought by employer, and had a full and fair opportunity to contest the basis for the employer’s assertions.
Hutter, 665 A.2d at 556 (citations and quotations omitted.)
The majority cites Frontini v. Workmen’s Compensation Appeal Board (Parks Moving & Storage), 702 A.2d 8 (Pa.Cmwlth.1997), for a third category of cases in which a WCJ may grant relief which has not been requested by formal petition. In Frontini , the question of the claimant’s disability was placed at issue by the filing of a petition to set aside the final receipt because it required the claimant to prove by sufficient competent, credible evidence that all disability related to his/her work-related injury had not ceased at the time he/she signed the final receipt, putting the extent of the claimant’s disability status squarely before the WCJ. See Section 434 of the Act, 77 P.S. § 1001. “The key import of Frontini and Hutter , and the cases cited therein, is that a WCJ has authority to suspend/terminate a claimant’s benefits in the absence of a formal petition where doing so would not be prejudicial to the claimant, i.e., the claimant is put on notice that a suspension/termination is possible and is given the opportunity to defend against it.” Thomas Krushauskas v. Workers’ Comp. Appeal Board, 56 A.3d 64, 71 (Pa.Cmwlth.2012).
Although the majority concludes that the WCJ was empowered to treat the penalty petition as a suspension petition as well because “[ujnder the specific facts of this case, Claimant clearly had notice that a suspension was possible, and Claimant was given an opportunity to defend against it” 56 A.3d at 72 , the question raised here is whether a defense raised in opposition to a penalty petition for an admitted violation of the Act falls outside the general rule that if an employer wants to change the character of the disability, it must file a petition specifically requesting the relief sought. In the alternative, does such action fall within one of the exceptions mentioned above merely because a claimant is put on notice that the employer is going to *76 defend on the basis that no penalty can be imposed, even though the employer violated the Act?
The common thread running through these three exceptions to the general rule is that the nature and extent of a claimant’s injuries has to be resolved in order to make a determination on the issue that was presented in the petition. In other words, while there was no formal termination petition filed, termination of benefits was an ancillary remedy to the petition filed. In a penalty petition, however, the nature and extent of a claimant’s injuries is not at issue — the only issue is whether an employer has violated the Act. Whether benefits should have been or could have been suspended at the time the employer violated the Act are not defenses to the imposition of penalties and are irrelevant. Because a penalty petition does not involve the nature and extent of a claimant’s injuries, suspension of benefits is not placed at issue in a penalty petition, and the general rule applies that an employer who wants to change the character of the disability must file the proper petition specifically requesting the specific relief sought. Consequently, I disagree with the majority that the WCJ did not err in treating Employer’s response to Claimant’s penalty petition as a request for suspension.
The majority then goes on to consider whether the WCJ properly suspended Claimant’s benefits based upon his voluntary retirement from the workforce and concludes that the WCJ did not err in suspending Claimant’s benefits because the WCJ found that Claimant accepted a retirement pension. Because a suspension petition had not been filed and such a defense is not cognizable in a penalty petition, benefits should not have been suspended, and because benefits should not have been suspended, benefits should have continued, and because they should have continued, compensation was due and owing and penalties are awardable.
The net result of the majority holding that the general rule that an employer must file a petition specifically requesting the relief sought is no more — the employer or anyone in any old proceeding can ask for anything they want without filing anything. Accordingly, because I would reverse the Board’s order to the extent that it affirmed the WCJ’s suspension of Claimant’s benefits, I respectfully dissent.
Judge McCULLOUGH joins in this dissenting opinion.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4966450. Public record. Not legal advice.