Pennsylvania State University v. Workers' Compensation Appeal Board
83 A.3d 1081
Pa. Commw. Ct.2013Background
- Claimant (Thomas Sox) suffered prior 2006 right-shoulder injury; later sustained two alleged work-related shoulder incidents while employed by Penn State on July 18, 2009 (non‑disabling pain) and October 18, 2009 (rotator cuff tear requiring surgery). Employer initially issued a medical‑only NCP for October 18, 2009 and did not file an NCP or NCD for the July 18, 2009 incident.
- Claimant filed multiple petitions (claim, penalty, reinstatement); Keystone (the 2006 employer) filed a termination petition. Proceedings consolidated before a WCJ who held hearings and issued an interim order limiting ex parte communications between Employer’s counsel and Claimant’s treating physicians (both Penn State employees).
- Employer did not depose the treating physicians (Drs. Serene and Bates) after the interim order and instead submitted their medical reports. The WCJ admitted those reports under Section 422(c) and decided the merits: finding a new October 18, 2009 injury (disabling), a non‑disabling July 18, 2009 injury, terminating Keystone’s 2006 liability, suspending Employer’s benefits after August 15, 2010, and awarding Claimant attorney’s fees ($8,632.50) and penalties (40%) for Employer’s unreasonable contest/violations.
- The Board affirmed the finding that the October 2009 injury was a new injury, held the WCJ’s interim order dispute moot (because reports were admissible), reversed the WCJ’s penalties, but affirmed that Employer unreasonably contested notice for the July 2009 claim and affirmed the attorney’s fee award.
- Commonwealth Court (this opinion) affirms in part, vacates in part, and remands: it agrees Employer unreasonably contested notice as to July 18, 2009 (entitling Claimant to attorney’s fees), but vacates the fee award to the extent it compensated counsel for litigating the entire July 2009 claim and remands for recalculation of fees attributable only to the notice issue. The court also holds the WCJ did not err in entering the interim order limiting ex parte contacts and deems the Board’s mootness ruling harmless error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Employer unreasonably contested the July 18, 2009 claim (attorney's fees under §440) | Claimant: Employer failed to issue NCP/NCD and unreasonably contested notice; fees warranted | Employer: Contest was reasonable on medical and other grounds; no compensable award for July 2009 so fees improper | Held: Employer unreasonably contested notice; fee entitlement affirmed but limited to fees attributable to litigating notice |
| Scope of attorney's‑fee award (apportionment) | Claimant: full fees incurred | Employer: fee award excessive; contest reasonable in part | Held: WCJ erred by awarding fees for entire July 2009 litigation; remand to apportion fees to the notice issue only |
| Validity of WCJ interim order limiting ex parte contacts with treating physicians | Claimant: order necessary to protect physician‑patient interests and allow cross‑examination about any contacts | Employer: treating physicians are Penn State employees; ex parte communications protected by attorney‑client privilege and Rule 4003.6 | Held: WCJ did not err; treating physicians acted as Claimant’s treating doctors (physician‑patient protections apply); Employer’s privilege/Rule arguments rejected |
| Mootness of challenge to the interim order | Claimant/Board: admission of medical reports under §422(c) made interim order dispute moot | Employer: not moot — prejudice from inability to depose physicians could have affected credibility/merits | Held: Challenge is not technically moot, but Board’s mootness ruling was harmless because the interim order was proper and Employer chose to submit reports rather than pursue depositions |
Key Cases Cited
- Capper v. Workers’ Comp. Appeal Bd. (ABF Freight Systems, Inc.), 826 A.2d 46 (Pa. Cmwlth.) (reasonableness of employer contest is question of law; employer bears burden to show reasonable basis)
- Lemansky v. Workers’ Comp. Appeal Bd. (Hagan Ice Cream Co.), 738 A.2d 498 (Pa. Cmwlth.) (conflicting evidence or contrary inferences support a reasonable contest)
- Poli v. Workmen’s Comp. Appeal Bd., 384 A.2d 596 (Pa. Cmwlth.) (reasonableness depends on facts and legal issues of each case)
- Eidell v. Workmen’s Comp. Appeal Bd. (Dana Corp.), 624 A.2d 824 (Pa. Cmwlth.) (totality of circumstances in assessing reasonableness of contest)
- Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth.) (failure to issue NCP/NCD forcing claimant to litigate compels employer liability for attorney’s fees absent proof of reasonable contest)
- Budd Co. v. Workers’ Comp. Appeal Bd. (Kan), 858 A.2d 170 (Pa. Cmwlth.) (apportionment/practical methods for allocating fees when multiple petitions complicate segregation)
- Marek v. Ketyer, 733 A.2d 1268 (Pa. Super.) (treating‑physician contacts by defense counsel restricted by Rule 4003.6; waiver of privilege does not permit unfettered ex parte contact)
- De. Valley Fish Co. v. Workmen’s Comp. Appeal Bd. (Woolford), 617 A.2d 48 (Pa. Cmwlth.) (partial unreasonable contest supports apportioned fee awards)