Wellington Foods v. Workers' Compensation Appeal Board

year, quar- of each which would cause the FOODS, Petitioner WELLINGTON

terly on filings to be made March June 1, September 1 December 1 of each and v. year. filing The interim in this case was WORKERS’ COMPENSATION 30, 2003, and, hence, July made does (RICE), APPEAL BOARD comply not with the schedule set forth in Respondent. regulations. the Commission’s Pennsylvania. Commonwealth Court UGI further contends that on Briefs 2004. Submitted Oct. right pro Commission violated its to due as it cess did have sufficient time to Decided Dec. 2004. respond argument OTS’ on this issue as it only received notice of OTS’ filing days

its interim four calendar days

two business before the Commission’s Nevertheless,

hearings began. UGI’s con regard

tention in this fails to consider that

the interim filing was submitted two

months filing after the of its annual tariff

and two weeks after OTS filed its direct

testimony. Additionally, we note that OTS

responded to filing UGI’s interim within weeks, in testimony.9

two its surrebuttal

Hence, any problems timing or its

inability prepare proper response was

brought about UGI itself with tim

ing of filing.10 its interim

ORDER NOW, day December,

AND this 8th Pennsylvania the order of the Public

Utility hereby Commission is affirmed. Further, Moreover, 332(c) recently we note that Section we note that this Court forty-two Code, held that hours was a sufficient no 332(c), par- provides 66 Pa.C.S. each party process. due See tice to afford ty with the to submit rebuttal evidence Pennsylvania Utility ARIPPA v. Public Com regulations provide and the Commission's for mission, (Pa.Cmwlth.2002), peti admissibility material all "relevant and denied, appeal tions allowance 5.401(a). evidence....” 52 Pa.Code 736, 737, (2003). 23, 2001, request- July Employer

fits. On undergo impairment an ed that Claimant (WCJ’s (IRE). Findings rating evaluation 3.) Fact, No. IRE, which indi- attended the Claimant impairment had a 24% cated that Claimant 2001, 9, rating. On November Change filed a Notice of Workers’ Com- Status, changed Disability which pensation disability from total Claimant’s status to limit partial disability. The effect was of benefits to no more receipt Claimant’s (WCJ’s Fact, Findings of than 500 weeks. Crisci, Washington, for Carol A. Fort 4.)No. petitioner. his filed a Petition to Reinstate Claimant Media, Sacchetta, respon- Thomas F. benefits, that Em- disability alleging total dent. 306(a.2)(l) of the ployer violated section (Act)1 Compensation by Act fail- COLINS, Judge, President BEFORE: ing sixty days the IRE within PELLEGRINI, SMITH-RIBNER, Judge, expiration of 104 weeks of total disabil- FRIEDMAN, Judge, Judge, ity as under that sec- LEADBETTER, Judge, COHN denying tion.2 filed an answer SIMPSON, JUBELIRER, Judge, and Petition, and a hear- allegations Judge. ing was held before the WCJ. WCJ’s Judge BY OPINION FRIEDMAN. 1-2.) Fact, Findings of Nos. Wellington (Employer) petitions Foods stipulated hearing, parties At the 2003, order of for review October (1) over 104 that: Claimant collected Compensation Appeal Board the Workers’ (2) benefits; Em- disability weeks of total (WCAB), affirmed the decision of sixty IRE more than ployer requested the (WCJ) judge compensation the workers’ (3) weeks; days after the 104 Claimant to Thom- reinstate total (4) IRE; his attended the showed (Claimant). affirm. as Rice We (5) 50%; to be less than and impairment changed insurer Claimant’s Employer’s inju- sustained a work-related Claimant disability. partial status 9, 1998, ry pursuant on December 12-13.) (R.R. admission of After the 17, 2000, adjudication dated October exhibits, following exchange occurred: disability benefits. received total Claimant 7, 2000, Supple- And there was [Employer]: had As of December which don’t have Agreement, mental 104 weeks of total bene- received 511.2(1); 2, 1915, by 77 P.S. added 1. Act of June P.L. 24, 1996, Appeal P.L. 4 of the Act of June section 350, Gardner v. Workers' 511.2(1). (Genesis Ventures), 77 P.S. 814 A.2d 884 Health (Pa.Cmwlth.2003), granted, appeal had received 104 weeks 2. Because Claimant (2004). Employer's request of December benefits as of total 23, 2001, twenty-four weeks too July an IRE needed late. 5, 2001, sixty days February later. See sec- degree impairment due copy get of. I’ll have to that from the determine compensable injury, any. carrier. There was a of time the for another claimant did return to work persuaded that Claimant We are employer. simply the IRE be- agreed “otherwise to” But is that relevant to these [WCJ]: Indeed, IRE. cause attended the Claimant proceedings? IRE form sent to Claimant this case the I [Employer]: have to check and see Employee,” stating: to contains “Notice my But I’ll it’s relevant. submit with [IRE], your work- you “If fail to attend the if it brief is. compensation may be sus- ers’ in, you Once send it assume [WCJ]: through decision of pended (stopped) the the claimant counsel for has no (R.R. 27.) that Considering at a[WCJ].” including Supplemental Agree- to that Claimant was threatened with cessation [Employer’s ment exhibit]. IRE, to the of benefits for failure attend objection, Judge. no have [Claimant]: say we cannot that Claimant “otherwise (R.R. 14-15.) Employer at did not submit IRE IRE. agreed by attending to” the supplemental agreement with its brief. Moreover, three-judge panel of this Employ- The WCJ concluded because court addressed a similar issue in Dow sixty er failed to the IRE within hower v. Workers’ days after Claimant received 104 weeks of (Capeo Contracting), Claimant is enti- (Pa.Cmwlth.2003). panel The held that a tled to a reinstatement of total claimant who attends an IRE does not Employer benefits. appealed to the object waive the the timeliness WCAB, which affirmed. Employer now IRE request. panel pointed of the petitions this court for review.3 out that a claimant must attend an or Employer argues that the WCAB possibility having face the benefits sus because, in affirming erred the WCJ al pended at 34 regulation under the Pa.Code though Employer timely request failed to 123.102(h) § (stating employee’s that an agreed IRE by may failure to attend an IRE result in a IRE. disagree. We suspension). 77 P.S. 511.2(1) added) (emphasis provides, in argues also pertinent part, as follows: case remanded to the should be WCJ additional evi employe re-open the record and take

When has received total dis- ability compensation ... for a dence as to whether Claimant worked at period of weeks, any during one four 104 he re point hundred unless other- weeks to, agreed wise the employe shall be ceived total benefits. asserts, any supporting to submit to a medical exami- without documen tation, requested by

nation which shall be that Claimant admitted he worked sixty days upon expi- during insurer within the 104-week five or six months However, Employer ration of the did not raise period.4 one hundred four weeks scope 3. Our 704 of the Administrative of review is limited to determin- dence. Section Law, Agency 2 ing rights Pa.C.S. constitutional were violat- whether ed, adjudication whether the is in accordance necessary provide with the law and whether the find- documenta- does when, showing ings supported by where and under what of fact are substantial evi- a ces- review; was “threatened with there that Claimant petition

this issue its attend the if he failed to fore, Brehm v. sation of benefits” the matter is waived.5 I do not believe this Op. Appeal Board merely his attendance It is not relevant. Company), 782 A.2d (Hygienic Sanitation objection, but (Pa.Cmwlth.2001). at the IRE that waives the prior attending. failure to his Accordingly, we affirm. than a case This situation is no different ORDER a vocational a claimant attended where to the lack of objecting without interview December, NOW, day this 10th AND quali- approval expert’s Department Compensa- the the order of Workers’ to conduct such an interview. fications Board, Appeal dated October in exactly is what occurred Wheeler That hereby is affirmed. Appeal Board Compensation v. Workers’ Center), Medical (Reading Hospital and BY Judge OPINION DISSENTING (Pa.Cmwlth.2003). A.2d 735 829 COHN JUBELIRER. There, a claimant attended vocational Respectfully, I dissent. by employer, the requested as interview view, my In when a claimant attends modify the claimant’s bene- sought who to objecting IRE without to the timeliness object, prior did not to fits. The claimant claimant has employer’s request, the the expert had not been attending, that the object after- opportunity waived the to of Labor approved by Department one the ward. fact, Industry. In his counsel stated objection qualifica- disagree majority the that Claim- that he had no After argue expert to tions of the witness. the. opportunity ant did not waive his closed, the raised the untimely. hearing IRE If Claimant was WCJ that the was and, IRE, the lack opinion, in his objected the he should issue based expert, of the de- prior Department approval have made his known Further, disagree petition.1 nied the modification attending. although attempted argument to make this same Claimant made such an admis- er circumstances However, instead of an ad- before the WCJ. sion. Claimant, Employer relied on mission Employer’s request is 5. We that remand note allegedly agreement re- supplemental which Stores, on Wal-Mart Inc. v. Workers' based during 104- worked the vealed that Claimant (Rider), Compensation Appeal Board above, WCJ period. As indicated the week (Pa.Cmwlth.2003), appeal granted, - Pa. 661 on the matter because did not’rule -, (2004), was decided supplemental agreement the never submitted In Wal-Mart after the WCAB’s here. decision that, requesting appears in into evidence. It Stores, employer chal we held when an here, Employer seeking a second a remand disability lenges an award of total support argu- its chance to submit evidence to granted supersedeas, sixty-day and is ment. only period begins to after run doing, WCJ relied on this Court's 1. In so supersedeas and the claimant actual ends recently opinion Worker’s filed in Caso v. ly weeks of total bene then receives 104 (School Appeal District not involve a Board this case does fits. (Pa.Cmwlth. delay Philadelphia), 790 A.2d 1078 payment in the of total bene thus, reversed, 2002), holding A.2d 219 supersedeas; fits due to a Caso, (2003). Depart apply that the Stores does not here. In we had held Wal-Mart Industry of Labor and ment that maintains To the extent qualifications expert’s approve a vocational the entire should not have received earning capacity as- Employ- interview a claimant for 104 weeks of total decision, employe’s right appealed suspension and the suit WCJ’s 314(a) claimant, holding Board reversed that the to benefits consistent with section added.) However, interview, (Emphasis act.” by voluntarily attending the and the that an regulation does not state em- failing to the admission of the pro- expert’s deposition, ployee had chal- cannot attend the waived test, objecting to the timeliness of lenge appeal, to his credentials. On we. while Furthermore, affirmed, request. regulation stating that: provide does not that a Claimant will be pre- issue is it is [A]n waived unless for a determina- penalized petitions he every stage proceed- served at to attend the tion as to whether he needs ... ing. The strict doctrine of waiver failing instead of to attend without applies compensation pro- to a workers’ Indeed, petitions a claimant who excuse. ... ceeding. purpose of the waiver acting procedures. would be streamline doctrine is to ensure that the isWCJ presented cognizable with all issues so Further, I do believe Dowhower “integrity, efficiency, that the and order- v. Workers’ ly administration of the workmen’s com- (Pa. (Capeo Contracting), 826 A.2d 28 pensation scheme of redress for work- Cmwlth.2003), requires us to conclude that injury” preserved. related is Dowhower, In there cannot be waiver. Wheeler, (citations 829 A.2d at 734 omit- and, thus, timely the insurer’s was ted). Wheeler, inAs in- case also object in the claimant that case could not i.e., volves a situation party, where one and was to attend the IRE. Be Claimant, failed to objection raise an be- timely cause there request, was ad examination, fore an in this case a medical ditional untimely request discussion examination, attempted and then raise dicta, was dicta. In that the Court theo Thus, afterwards. I believe the outcome rized that an IRE would not as to waiver should be controlled challenge waive a timeliness Wheeler. request, because attendance is not volun agree also do not majority’s tary, since a claimant who fails to attend premise that subject the Claimant was possible coerced the sanction. into attending the IRE. Regulation Board this discussion did not consider 123.102(h), 123.102(h), 34 Pa.Code upon that a claimant could to the timeli based, which the notion of pro- coercion is ness of attending, the examination before vides that: employe’s “The failure to at- in in preserve order to tend the under this section may possible.2,3 re- most efficient manner Ventures), (Pa.Cmwlth. employer sessment before the makes its re- Health quest for an interview. 2003), petition appeal grant allowance for ed, (2004), requirement 2. This is similar to the and, accordingly, incorrectly decided parties objec- civil rules that must make their law, my reading of the there would be no otherwise, during depositions; tions or before Gardner, J., (Cohn, timeliness issue here. See 4016(b). they are waived. See Pa. R.C.P. No. dissenting), my position in which I set out too, Board, requirement has a similar under the an insurer is not forever depositions, provides, "Objections shall precluded requesting an IRE if it fails to objections be made and the basis for stat- 60-day taking deposi- ed at one within the time the time of the 131.66(b). tions. ...” 34 Pa.Code of the Act because the Act contemplates separate two instances when an I also continue to believe that Gardner v. request a medical examination of insurer can (Genesis Accordingly, because Claimant attended objection,

the IRE without believe

he challenge waived his to later would, IRE request

timeliness of the and I

therefore, reverse the Board’s order. OF PHILADELPHIA

CITY

v.

Myron BERMAN, Callowhill Center

Associates, Lights, and Metro

LLC.

Appeal Myron Berman and

Callowhill Center

Associates. Court of Pennsylvania.

Commonwealth

Argued Nov.

Decided Dec. pursuant injury the claimant to determine of im the status time after the to Section pairment: impair- 314 "to determine the status of employer allows an ment.” Section 314 The first instance is after claimant re- request any physical examination at time provided, disability, ceives 104 weeks of injury, provided a after an claimant is not however, request within 60 made undergo more two exami- than expiration days “upon the of the one hun- period; nations in a there is no 12-month requests weeks." If an dred four insurer provision broad be indication that this is to limit, 60-day an IRE outside the time it upon request. an earlier conditional To precluded changing from would be give language effect to the broad of Section partial 306(a.2)(6) employer an must be 306(a.2)(l). disagree with the request allowed to the medical examination majority an insurer fails to make time, time, any purpose at and the the exami- precluded it is at this be, alia, nation can inter reassess the obtaining necessary step ever an impairment rating, irrespective long reducing of how partial. benefits from total to weeks, the 104 has been since referred There is also second instance where an (a.2)(l), passed. have may requested. in subsection be Under Section Gardner, J., (Cohn, 306(a.2)(6), employer at 887 may an dissent- ing) original). independent (emphasis medical examination

Case Details

Case Name: Wellington Foods v. Workers' Compensation Appeal Board

Court Name: Commonwealth Court of Pennsylvania

Date Published: Dec 10, 2004

Citation: 863 A.2d 151

Court Abbreviation: Pa. Commw. Ct.