Davidson Construction v. WCAB (Butcher)
Davidson Construction v. WCAB (Butcher) - 1414 C.D. 2016
| Pa. Commw. Ct. | Apr 6, 2017Background
- Claimant (Butcher) fell on May 16, 2014 while working for Davidson Construction and alleged injuries to head, neck, right shoulder, back, and both knees.
- Claimant filed a Claim Petition and a Penalty Petition (for Employer’s failure to file required Bureau documents) and later a UEGF claim because Employer lacked workers’ compensation insurance.
- Treating physician Dr. Lipton diagnosed cervical and lumbar disc disease, radiculitis, right shoulder pain and opined Claimant was not fully recovered and could possibly do only sedentary work; he continued treating Claimant into October 2014.
- Employer presented an IME by Dr. Donahue who concluded Claimant had only minor strains and was fully recovered as of October 14, 2014; Employer also offered modified-duty positions (letters dated July 21 and November 20, 2014).
- The WCJ credited Claimant and Dr. Lipton over Employer and Dr. Donahue, awarded ongoing TTD benefits, medical expenses, and a 10% penalty for Employer’s failure to file required Section 406.1 Bureau documents; UEGF is secondarily liable if Employer fails to pay.
- The Board affirmed the WCJ; Employer appealed to this Court which affirmed the Board’s order.
Issues
| Issue | Plaintiff's Argument (Butcher) | Defendant's Argument (Davidson) | Held |
|---|---|---|---|
| Whether Claimant remains disabled and entitled to ongoing TTD benefits | Claimant: treating physician and testimony show ongoing disability and inability to perform offered work | Employer: IME (Dr. Donahue) showed full recovery by Oct. 14, 2014; WCJ should have credited IME | Court upheld WCJ: credibility determinations favoring Dr. Lipton and Claimant are supported by record; ongoing benefits affirmed |
| Whether benefits should be suspended based on Employer’s modified-duty offers | Claimant: could not perform the jobs offered due to pain and physical limits | Employer: offered jobs within restrictions (letters) so benefits should be suspended | Court held WCJ properly found job offers not suitable (conflicting testimony re: duties/weights) and therefore no suspension |
| Whether WCJ erred by relying on treating physician whose last office visit was earlier than IME | Claimant: Dr. Lipton continued treating and testified by deposition on Oct. 14 he had seen Claimant Oct. 13 and continued care | Employer: Dr. Lipton lacked sufficient knowledge past Aug. 27, 2014; only IME could assess Oct. condition | Court found Dr. Lipton had knowledge/treatment into October; WCJ permissibly credited his opinions over IME |
| Whether a 10% penalty was an abuse of discretion because Employer was uninsured | Claimant: penalty appropriate for Employer’s failure to file required notices under §406.1 | Employer: contends penalty improper to base on lack of insurance | Court held penalty was properly imposed for failure to file Bureau documents under §406.1 (not for lack of insurance); penalty within WCJ discretion |
Key Cases Cited
- Coyne v. Workers’ Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939 (Pa. Cmwlth. 2008) (claimant bears burden to establish right to compensation)
- Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003) (WCJ is exclusive arbiter of credibility)
- Joy Global, Inc. v. Workers’ Comp. Appeal Bd. (Hogue), 876 A.2d 1098 (Pa. Cmwlth. 2005) (WCJ may accept or reject medical testimony in whole or part)
- Ingrassia v. Workers’ Comp. Appeal Bd. (Universal Health Servs., Inc.), 126 A.3d 394 (Pa. Cmwlth. 2015) (suspension appropriate where injury no longer impairs earning power)
- Presby Homes & Servs. v. Workers’ Comp. Appeal Bd. (Quiah), 982 A.2d 1261 (Pa. Cmwlth. 2009) (employer bears burden to prove suitable employment available once claimant shows loss of earning power)
- Gen. Elec. Co. v. Workers’ Comp. Appeal Bd. (Myers), 849 A.2d 1166 (Pa. 2004) (WCJ decides if claimant can perform proffered job)
- Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374 (Pa. 1987) (standards for determining ability to perform offered work)
- Cruz v. Workers’ Comp. Appeal Bd. (Kennett Square Specialties), 99 A.3d 397 (Pa. 2014) (burden shifts to employer to justify suspension/termination after claimant proves loss of earning power)
- City of Phila. v. Workers’ Comp. Appeal Bd. (Sherlock), 934 A.2d 156 (Pa. Cmwlth. 2007) (penalty assessment lies within WCJ discretion)