J. Conley & Sons Plumbing v. WCAB (Gainer)
883 and 884 C.D. 2016
Pa. Commw. Ct.Sep 19, 2017Background
- Claimant (Jesse Gainer) injured his groin/lumbar region on Jan. 10, 2013 while working as a plumber’s apprentice; he filed a claim petition and a penalty petition in Feb. 2013.
- WCJ (Apr. 2014) found Claimant totally disabled, awarded ongoing benefits and penalties for Employer’s failure to timely issue Bureau documents, and found Employer’s contest unreasonable.
- Employer later filed a modification petition asserting Claimant had returned to work (Rose Tree Inn and Jiffy Lube) and sought credit/adjustment; WCJ (Mar. 2015) granted modification for two discrete post-injury employment periods and awarded Employer a $4,430.62 credit, repayable at $5/week.
- WCJ credited Claimant’s testimony/affidavit about working at Rose Tree Inn and accepted employment records for wage computation but disregarded Jiffy Lube record notations alleging misconduct under the Walker rule.
- The Board affirmed in part and modified in part (excluding two medical conditions from the injury description, upholding the modification credit and the $5/week repayment schedule, and affirming penalties and counsel fees); Employer appealed to this Court.
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| Whether Claimant’s post-injury discharge from Jiffy Lube for misconduct converts ongoing total disability to only partial disability | Claimant: his disability continued; he was credible and entitled to benefits except for discrete periods of work | Employer: Jiffy Lube record shows termination for misconduct, which should limit benefits to partial going forward | Court: WCJ properly disregarded misconduct notations absent corroboration; total/ongoing benefits otherwise remain except during documented employment periods (affirmed) |
| Admissibility/weight of Jiffy Lube employment record notations | Claimant: notations are uncorroborated hearsay and do not undermine credibility findings | Employer: records authenticated; business-records exception and deposition affidavit make notations admissible and sufficient | Court: routine wage entries are admissible, but misconduct notations are inadmissible hearsay as sole proof; Walker rule permits disregarding uncorroborated hearsay (affirmed) |
| Proper calculation and repayment terms of credit for overpaid benefits during post-injury employment | Claimant: credit and $5/week recoupment are reasonable given financial hardship | Employer: credit should have been calculated differently and recoupment schedule is unduly lenient | Court: calculation arguably could differ but credit was within WCJ discretion; humanitarian purposes justify spreading repayment at $5/week (affirmed) |
| Whether penalties and counsel-fee awards were excessive or should be rescinded | Claimant: Employer violated the Act; penalties and fees appropriate | Employer: its conduct does not warrant penalty/counsel-fee awards or they should be reduced | Court: WCJ credibility findings and record show Employer violations; penalty and fee awards not manifestly unreasonable (affirmed) |
Key Cases Cited
- Howze v. Workmen’s Comp. Appeal Bd. (Gen. Elec. Co.), 714 A.2d 1140 (Pa. Cmwlth. 1998) (return-to-work discharge for misconduct presumptively limits claimant to partial disability benefits)
- Virgo v. Workers’ Comp. Appeal Bd. (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005) (employer bears burden to prove involuntary discharge was due to claimant’s misconduct)
- Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366 (Pa. Cmwlth. 1976) (hearsay admitted without objection may only support findings if corroborated by competent evidence)
- Allegis Group v. Workers’ Compensation Appeal Board (Coughenaur), 7 A.3d 325 (Pa. Cmwlth. 2010) (standard for abuse of discretion in WCJ awards: manifest unreasonableness, misapplication of law, or evident bias)
- Fahringer, McCarty & Grey, Inc. v. Workmen’s Compensation Appeal Board (Green), 529 A.2d 56 (Pa. Cmwlth. 1987) (permitting tailored recoupment schedules where necessary to prevent undue hardship)
- City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Wright), 90 A.3d 801 (Pa. Cmwlth. 2014) (recoupment terms may be modified consistent with humanitarian purposes of Act)
- Vandervort v. Workers’ Comp. Appeal Bd. (City of Phila.), 899 A.2d 414 (Pa. Cmwlth. 2006) (noting humanitarian purposes informing workers’ compensation relief)