M. O'Connor v. WCAB (Laminations, Inc.)
M. O'Connor v. WCAB (Laminations, Inc.) - 1635 C.D. 2016
| Pa. Commw. Ct. | Aug 25, 2017Background
- Claimant Michael O'Connor, employed by Laminations, Inc. since 1986, suffered a March 2013 lower back injury while changing forklift forks.
- Employer acknowledged the injury as a lower back strain and paid temporary compensation under NTCP at $565.11/week based on wages of $847.66.
- Claimant returned to modified-duty work May 20, 2013; overtime availability existed but he preferred not to request overtime.
- May 22, 2013, Employer issued a NCD contesting extent of disability and NSTCP stopping temporary compensation.
- June–July 2013, Claimant petitioned for lumbar disc injuries with radiculopathy and a penalty petition; Dr. Pelicci treated Claimant and testified, with the WCJ crediting some testimony but rejecting a 40-hour-week limitation.
- WCJ found a work injury with lumbar strain and aggravation of pre-existing condition, awarded benefits and suspended wage loss after July 25, 2013 based on overtime, and denied the penalty petition; Board affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suspension of benefits based on overtime was proper. | O'Connor argues burden should shift to Laminations to show change in condition and available work. | Laminations contends claimant bore burden and failed to prove ongoing disability precluding overtime. | Yes; burden remained with claimant; overtime availability supports suspension. |
| Reasonableness of the contest to award counsel fees | Claimant argues contest was unreasonable and warranted fees. | Employer asserts contest had a reasonable basis given disputed issues. | Contest deemed reasonable; no counsel fees awarded to claimant. |
| Penalty petition based on NCD issuance | Claimant argues NCD violated Act and rules by mischaracterizing disability. | Employer acted consistently with the Act by recognizing injury but contesting ongoing disability. | Penalty petition properly denied. |
Key Cases Cited
- Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d 750 (Pa. Cmwlth. 2002) (burden of proof on claimant throughout pendency of petition; disability must be proven to continue)
- Potere v. Workers’ Comp. Appeal Bd. (Kemcorp), 21 A.3d 684 (Pa. Cmwlth. 2011) (burden does not shift to employer when overtime becomes available during pendency)
- Innovative Spaces v. Workmen’s Comp. Appeal Bd. (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994) (claimant must prove disability throughout pendency)
- U.S. Steel Corp. v. Workers’ Comp. Appeal Bd. (Luczki), 887 A.2d 817 (Pa. Cmwlth. 2005) (attorney’s fees awarded unless employer proves reasonable basis for contest)
- Eidell v. Workmen’s Comp. Appeal Bd. (Dana Corp.), 624 A.2d 824 (Pa. Cmwlth. 1993) (totality of circumstances governs reasonableness of contest)
- Elite Carpentry Contractors v. Workmen’s Comp. Appeal Bd. (Dempsey), 636 A.2d 250 (Pa. Cmwlth. 1993) (contest is reasonable if genuinely disputed, not harassing)
- Shuster v. Workers’ Comp. Appeal Bd. (Pa. Human Relations Comm’n), 745 A.2d 1282 (Pa. Cmwlth. 2000) (penalty standards; burden on claimant to prove violation)
- Armstrong v. Workers’ Comp. Appeal Bd. (Haines & Kibblehouse, Inc.), 931 A.2d 827 (Pa. Cmwlth. 2007) (penalty determination reviewed for act compliance)
- Waldameer Park, Inc. v. Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003) (affirming on review when evidence supports decision)