R. McElvarr v. WCAB (Coca Cola)
451 C.D. 2020
Pa. Commw. Ct.Jul 29, 2021Background
- Claimant Richard McElvarr suffered a work-related back injury on August 2, 1988 while working for Coca‑Cola; employer paid benefits uninterrupted for ~30 years.
- Claimant later developed CRPS and avascular necrosis from treatment; he settled a related malpractice claim in 1995 and employer’s carrier took a subrogation share.
- In 2016 Claimant filed a Review Petition about the injury description; in 2017 Employer filed a Termination Petition asserting full recovery as of September 28, 2017; Claimant filed a Penalty Petition alleging Employer never filed required Bureau documents.
- A WCJ (2018) found the accepted diagnoses included an L5‑S1 herniation, loss of right‑leg sensation, CRPS, avascular necrosis (left shoulder and bilateral hips), and osteoporosis; a later WCJ decision (2019) found Claimant had recovered from CRPS but not from the L5‑S1 injury, denied penalties based on laches, and found Employer’s contest reasonable.
- The Workers’ Compensation Appeal Board affirmed in part and reversed in part (reversing the WCJ as to L5‑S1 recovery). The Commonwealth Court affirmed the Board on laches and reasonable contest but reversed the Board’s finding that Claimant had recovered from the L5‑S1 injury, finding the Board improperly reweighed the evidence.
Issues
| Issue | Plaintiff's Argument (McElvarr) | Defendant's Argument (Coca‑Cola) | Held |
|---|---|---|---|
| Whether Board properly reversed WCJ on Claimant's recovery from L5‑S1 herniation | WCJ’s nonrecovery finding was supported by substantial evidence and credibility determinations; Board improperly reweighed evidence | Evidence did not connect current lumbar pain to 1988 injury; Claimant had recovered | Court reversed Board; WCJ’s finding of nonrecovery on L5‑S1 is supported and Board impermissibly reweighed evidence |
| Whether Claimant’s Penalty Petition is barred by laches | Filed promptly when violation discovered in 2016; penalties appropriate | 30‑year delay; Claimant failed to exercise due diligence and employer is prejudiced by lost/old records | Court affirmed laches; long delay and prejudice to employer bar penalties |
| Whether Employer established a reasonable contest under Section 440(a) (attorney fees) | Employer’s contest focused on CRPS, not other accepted diagnoses, so contest was unreasonable | Conflicting medical evidence made the termination contest reasonable | Court affirmed that Employer presented a reasonable contest as to the claims |
| Which party bears the burden to prove recovery at termination hearing | WCJ correctly placed burden on Employer to prove full recovery | Board’s reasoning shifted burden to Claimant | Court reiterated Employer bears the burden; Board improperly shifted burden when it reweighed evidence |
Key Cases Cited
- Bryn Mawr Hosp. v. Workers’ Comp. Appeal Bd. (O’Connor), 701 A.2d 805 (Pa. Cmwlth.) (definition of substantial evidence review)
- DTE Energy Co., Inc. v. Workers’ Comp. Appeal Bd. (Weatherby), 245 A.3d 413 (Pa. Cmwlth. 2021) (court must not reweigh credibility; review for substantial evidence)
- Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721 A.2d 1152 (Pa. Cmwlth.) (scope of substantial‑evidence review)
- Lewis v. Workmen’s Comp. Appeal Bd., 498 A.2d 800 (Pa. 1985) (medical testimony must be read in context; cannot rely on isolated equivocal phrases)
- Potere v. Workers’ Comp. Appeal Bd. (Kemcorp), 21 A.3d 684 (Pa. Cmwlth.) (equivocal medical testimony insufficient to show recovery)
- Mitchell v. Workers’ Comp. Appeal Bd. (Devereux Found.), 796 A.2d 1015 (Pa. Cmwlth.) (laches elements in administrative proceedings)
- Pfeifer v. Westmoreland Cnty. Tax Claim Bureau, 127 A.3d 848 (Pa. Cmwlth.) (due diligence inquiry considers information within party’s reach)
- Yespelkis v. Workers’ Comp. Appeal Bd. (Pulmonology Assocs. Inc.), 986 A.2d 194 (Pa. Cmwlth.) (standard for reasonable contest under Section 440(a))
- Com. v. Workers’ Comp. Appeal Bd. (Noll), 80 A.3d 525 (Pa. Cmwlth.) (successful employer defenses make contest reasonable)
- Candito v. Workers’ Comp. Appeal Bd. (City of Phila.), 785 A.2d 1106 (Pa. Cmwlth.) (penalty imposition is within WCJ discretion; abuse of discretion standard)