M. Tovar v. WCAB (Oasis Outsourcing/Capital Asset Research Ltd.)
1441 and 1469 C.D. 2017
Pa. Commw. Ct.May 1, 2018Background
- In Dec. 2014 Tovar (Claimant) sustained a workplace injury; Employer initially accepted liability via a medical-only notice that converted to a NCP.
- Claimant filed a claim petition in Aug. 2015 alleging disability beginning July 2015; no party had medical exams at the Sept. 2015 hearing where scheduling was set (Employer 45 days, Claimant 90 days).
- Claimant deposed and filed her medical expert’s deposition (Dr. Ruht) in April 2016; Employer did not submit any medical evidence or file a brief in the claim petition proceeding.
- WCJ issued a decision in Nov. 2016 granting the claim petition and awarding attorney fees to Claimant for Employer’s unreasonable contest, noting Employer presented no evidence and had earlier acknowledged the injury.
- Employer later filed a termination petition and appealed the WCJ’s decision to the Board, arguing the record was closed improperly and the WCJ should have consolidated the proceedings so Employer could present medical evidence; Employer also obtained an IME in Jan. 2016 but did not present that testimony in the claim hearing record.
- The Board affirmed the WCJ (holding the WCJ did not abuse discretion in closing the record or refusing consolidation) and kept a supersedeas on fee payment pending appeal; the Commonwealth Court affirmed and dismissed Claimant’s petition as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WCJ improperly closed the record and denied Employer opportunity to submit medical evidence | Tovar: not applicable (Claimant urged affirmance and lifting supersedeas) | Employer: WCJ closed record without notice and without allowing Employer to submit its IME or depose its expert | Court: Employer failed to preserve record-based objections; §131.63 timing applied; WCJ acted within discretion—no relief |
| Whether WCJ should have consolidated the claim and later-filed termination petitions | Tovar: consolidation unnecessary; petitions involve different issues | Employer: consolidation required so termination petition could supply medical evidence to oppose claim petition | Court: consolidation discretionary; Employer waited too long to file termination petition and offered no basis showing abuse of discretion—WCJ did not err |
| Whether attorney fees for unreasonable contest were improperly awarded because Employer had no chance to present evidence | Tovar: fees justified given Employer acknowledged injury and presented no defense | Employer: award stems from WCJ’s alleged procedural errors that prevented Employer’s evidence | Court: WCJ relied on more than mere absence of evidence (Employer had acknowledged injury and then denied it); award upheld |
| Whether the Board should have lifted the supersedeas on fee payment after affirming WCJ | Tovar: Board should lift supersedeas and require payment | Employer: did not contest in Court | Court: Moot in light of affirmance of Board on other issues; Claimant’s petition dismissed as moot |
Key Cases Cited
- Wheeler v. Workers’ Comp. Appeal Bd. (Reading Hosp. & Med. Ctr.), 829 A.2d 730 (Pa. Cmwlth. 2003) (issues must be preserved at every stage of a workers’ compensation proceeding)
- Grimm v. Workers’ Comp. Appeal Bd., 176 A.3d 1045 (Pa. Cmwlth. 2018) (en banc) (scope of appellate review and preservation principles)
- Commonwealth v. Joint Bargaining Comm. of Pa. Soc. Servs. Union, 489 A.2d 311 (Pa. Cmwlth. 1985) (refusal to allow post-hearing evidence not preserved absent exception or post-award request)
- Temple Univ. Hosp., Inc. v. Healthcare Mgmt. Alts., Inc., 832 A.2d 501 (Pa. Super. 2003) (parties can stipulate to supplement certified record)
- In re Luongo, 823 A.2d 942 (Pa. Super. 2003) (treating reproduced record material as part of certified record when parties agree)