Opinion

Matthews v. Workers' Compensation Appeal Board

  • 967 A.2d 452
  • 2009 Pa. Commw. LEXIS 100
  • 2009 WL 614721
Court
Commonwealth Court of Pennsylvania
Filed
Mar 12, 2009
Status
Published
Author
Smith
On the bench
Smith-Ribner, Leavitt, Flaherty
Cited by
0 cases
Authority
More cited than 8.6%

The opinion

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully dissent from the majority’s decision to affirm the order of the Workers’ Compensation Appeal Board (Board) that reversed the Workers’ Compensation Judge’s (WCJ) August 8, 2007 decision entered on remand granting disability benefits to Jacqueline Matthews (Claimant) with respect to injuries that she sustained in a September 9, 2003 motor vehicle accident. The WCJ found on remand that Claimant sustained additional injuries over and above her original work-related left knee injury when she was involved in the motor vehicle accident while *458 en route to physical therapy for her original work-related injury.

In reversing the WCJ’s award as to the motor vehicle accident injuries, the Board erroneously held that Claimant failed to prove that she gave Employer timely notice of the additional injuries from the motor vehicle accident or that Employer had knowledge of the additional injuries. Claimant is correct that Elwyn Institute (Employer) waived the issue of notice of injuries from the motor vehicle accident, which caused aggravation of Claimant’s knee injury, back injury and later blood clot from the knee that traveled to her lung. In any event, adequate notice was conveyed.

In her first decision of January 5, 2005, the WCJ found that Claimant was fully recovered by April 16, 2004 from her original work-related knee injury of January 16, 2003. The WCJ also found that Claimant was involved in the motor vehicle accident in September 2003 and that she re-injured her left knee, suffered injury to her back and suffered the later formation of a blood clot. The WCJ fully credited the testimony from Dr. Stuart Gordon (Employer’s panel doctor) that Claimant’s blood clot in November 2003 was related to the motor vehicle accident, but the WCJ made no finding as to the reason for Claimant’s travel at the time of the accident. She awarded benefits ending as of April 15, 2004.

Both sides appealed the decision. Claimant’s appeal argued that the WCJ erred in terminating benefits as of April 16, 2004 because she continued to suffer disabling residual effects from the motor vehicle accident that occurred while she was en route to therapy for the work-related injury. Employer of course was aware of the basis for Claimant’s appeal, but it raised no issue in its response to Claimant’s appeal asserting failure of notice. The Board noted that a claimant who is injured in a motor vehicle accident en route to physical therapy that is part of treatment for a work-related injury sustains a compensable injury. Berro v. Workmen’s Compensation Appeal Board (Terminix Int’l), 165 Pa.Cmwlth. 298 , 645 A.2d 342 (Pa.Cmwlth.1994). Further, a WCJ must make findings of fact on all essential issues so that the Board can exercise meaningful review, and a remand is warranted when factual issues need to be resolved. Trudnak v. Workmen’s Compensation Appeal Board (Lucky Strike Coal Corp.), 157 Pa.Cmwlth. 212 , 629 A.2d 254 (Pa.Cmwlth.1993).

The Board vacated the WCJ’s decision as to the compensability of the motor vehicle accident injuries and remanded. The Board directed that the WCJ make all necessary findings regarding the motor vehicle accident, keeping in mind that if it occurred while she was en route to physical therapy it would be compensable provided that Claimant met the necessary burdens. The Board noted that for such a separate and distinct injury, Claimant had the burden of establishing all the necessary elements to support an award.

On remand, both sides decided not to present any additional evidence. Employer again did not challenge Claimant’s notice of injuries that she sustained in the motor vehicle accident as being insufficient. The WCJ credited Claimant’s testimony that she was on her way to physical therapy as being corroborated by the medical records of Dr. Gordon. In the absence of any contrary evidence, the WCJ determined that the work injury should be “expanded to include her original injury to her left knee and the aggravation of her left knee condition and her injury to her back and the pulmonary embolism as a result of her motor vehicle accident on September 9, 2003.” WCJ August 8, 2007 *459 Remand Decision. As a result, the WCJ awarded benefits from April 16, 2004 and ongoing.

On its appeal to the Board from the WCJ’s remand decision, Employer for the first time mentioned notice by stating: “Not only did the Claimant not provide testimony concerning the specific incident, that [sic] she did not offer any evidence, notice or any other element which is necessary to sustain the granting of a Compensation Petition.” Supplemental Reproduced Record (S.R.R.) lb, 3b. It argued lack of timely notice, and the Board accepted that argument and reversed the WCJ’s grant of benefits for disability related to the motor vehicle accident injuries. The Board stated that the WCJ made no findings as to whether Claimant notified Employer of the additional injuries or whether it actually knew of them and that on remand Claimant had the burden of establishing all elements necessary to support an award with regard to the motor vehicle accident, including timely notice. It therefore reversed the WCJ’s award in this regard.

Claimant first asserts that issues not preserved on appeal are deemed to be waived and that arguing issues in a brief to the Board does not cure failure to preserve issues in the notice of appeal with specificity, citing McGaffin v. Workers’ Compensation Appeal Board (Manatron, Inc.), 903 A.2d 94 (Pa.Cmwlth.2006). In McGaffin the WCJ granted a termination petition. In his brief on appeal to the Board the claimant raised for the first time the issue that a termination petition could not be granted when, only seven months earlier, he was determined by a WCJ to have a whole-person physical impairment rating of 26 percent. The Court relied on 34 Pa.Code § 111.11(a)(2), which requires an appeal filed with the Board to include a statement of the particular grounds upon which the appeal is based, including reference to the specific findings that are challenged and the errors of law that are asserted. The Court sua sponte raised the issue of waiver and held that the claimant’s failure to state anything in the appeal documents filed with the Board about the impairment rating effectively waived the argument and that arguing the point in his brief did not preserve the issue. Claimant here cites Employer’s first appeal to the Board, Reproduced Record (R.R.) 249a-250a, which contains no reference to notice. Employer quotes its second appeal document, which at least contains an assertion that Claimant “did not offer any evidence, notice, or other any other element that is necessary to sustain a Compensation Petition.” S.R.R. lb, 3b.

The issue of notice may be waived. See North Lebanon Township v. Workers’ Compensation Appeal Board (Harbaugh), 829 A.2d 394 (Pa.Cmwlth.2003) (notice waived where it was raised in the answer to the claim petition but there was no objection to a WCJ’s finding that notice was provided). In the circumstances of this case, Employer waived the issue of notice. When Claimant initially offered evidence of the motor vehicle accident, Employer did not raise notice. The express purpose of the remand was to elicit findings relating to the compensability of the motor vehicle accident injuries, and Claimant’s decision not to provide additional evidence implied that she believed that she had provided sufficient evidence to establish notice. If Employer believed that it had a meritorious challenge to notice, it should have raised the issue before the WCJ on remand, to permit full litigation of the point and any necessary fact findings. Although the case was remanded for the sole purpose of determining whether the motor vehicle accident inju *460 ries were work related and compensable, Employer faded to raise lack of notice. 1

In the alternative, I agree with Claimant that the evidence established that Employer had notice of the September 2003 injury. Claimant sought treatment for the injuries from the motor vehicle accident from the same panel physician who was treating her for the work-related injury. In Reed v. Glidden Co., 13 Pa.Cmwlth. 343 , 318 A.2d 376 (Pa.Cmwlth.1974), the Court held that an employee’s notice of a June wrist injury was sufficient when he told the company doctor of the injury during a physical that he received in late June or early July. See also Pittsburgh Steelers Sports, Inc. v. Workers’ Compensation Appeal Board (Williams), 814 A.2d 788 (Pa. Cmwlth.2002) (citing Reed and holding that treatment of claimant’s injury by employer’s doctor one week after injury had occurred satisfied notice requirements under 77 P.S. § 631). In addition, Gaü A. Foltz, a disability management coordinator for PMA Insurance Group, which provides workers’ compensation insurance for Employer, testified that Claimant was receiving long-term disability payments for a “lumbar and cervical strain” certified by Dr. Gordon. Foltz Deposition, p. 20; R.R. 203a, 226a-228a. Also, Claimant asserts that her deposition testimony on February 11, 2004 describing her motor vehicle accident, her hospitalization and the blood clot in November 2003 was well within 120 days of the occurrence of the blood clot and likewise provided notice to Employer.

Because the Board erred in determining that Claimant failed to give notice of the injuries that she sustained in the motor vehicle accident while en route to physical therapy, the Board’s order denying benefits for these injuries should be reversed. I therefore dissent.

. In addition, I question whether Employer’s statement in its second appeal document to the Board was sufficient to raise the issue of notice. As was stressed in McGaffin , 34 Pa. Code § 111.11 (a)(2) requires "[a] statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of the law which are alleged. General allegations which do not specifically bring to the attention of the Board the issues decided are insufficient.” In its second Board appeal, Employer asserted in boilerplate language that Claimant did "not provide testimony concerning the specific incident" and that she "did not offer any evidence, notice or any other element which is necessary to sustain the granting of a Compensation Petition.” The statement is patently incorrect concerning evidence of the specific incident, where Claimant testified that she was involved in a motor vehicle accident on September 9, 2003, when "[a] lady ran into me and hit my car and totalled it” while she was driving "[o]n my way to PT.” Claimant’s Deposition, February 11, 2004, pp. 22-23; R.R. 22a-23a. Dr. Gordon testified to aggravation of her knee injuiy and other injuries as a result, and the Board acknowledged this testimony and remanded for further findings relating to it. The mere mention of the word "notice” in an otherwise incorrect general assertion arguably is not a statement with sufficient particularity required by Section 111.11(a)(2).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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