Budd Co. v. WCAB (KAN)

• Decision Date: 16 September 2004
• Parties: The BUDD COMPANY, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (KAN), Respondent. Tong Kan, Petitioner v. Workers' Compensation Appeal Board (Budd Company), Respondent (Two Cases).
• Court: Pennsylvania Commonwealth Court

858 A.2d 170

The BUDD COMPANY, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (KAN), Respondent.

Tong Kan, Petitioner v. Workers' Compensation Appeal Board (Budd Company), Respondent (Two Cases).

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 25, 2004.

Decided September 16, 2004.

Paul Auerbach, Merion Station, for petitioner.

Jane A. Lombard, Philadelphia, for respondent.

BEFORE: COLINS, President Judge, and SIMPSON, Judge, and JIULIANTE, Senior Judge.

OPINION BY judge SIMPSON.

Before the Court are the most recent¹ appeals of Tong Kan (Claimant) and the Budd Company (Employer) in complex, acrimonious litigation under the Workers' Compensation Act (Act).² At issue are three Board orders covering matters at five different docket numbers. Lamenting the flight of common sense from this litigation, we wade into the swamp.

I. Background

A. Facts

The tortured history of this litigation requires explanation. Claimant worked for Employer as a tool and dye maker. Claimant sustained a work-related lower back injury in mid-May 1992 (1992 injury), and Employer paid temporary total disability benefits. After several changes in status memorialized by various writings, benefits were suspended in May 1993 following Claimant's return to work.

In September 1993, Claimant sustained a second work-related injury when struck on the right side of his head (1993 injury). He did not lose time from work, but he experienced head and neck pain and dizziness. For about a month he was treated at Employer's medical dispensary and provided medications. After that treatment, Claimant treated with Ronald Zweibaum, D.C. (Claimant's chiropractor). Claimant continued working until February 1995 when Employer laid him off for economic reasons.

B. Procedure

1. Reinstatement Petition

Thereafter, Claimant filed two petitions. First, he filed a reinstatement petition for the 1992 injury. Claimant alleged, since his lay off, he was unable to find work consistent with residual disability from his 1992 injury. Claimant requested attorney fees, payment of medical bills, and partial disability benefits during periods when he claimed he earned less than his average weekly wage.

2. Claim Petition

Second, he filed a claim petition for the 1993 injury. In this petition Claimant sought payment of a $790 chiropractor bill and attorney fees.

3. UR Petition

In addition to denying Claimant's allegations, Employer filed a petition for review of a Utilization Review (UR) Determination³ in which it challenged the reasonableness and necessity of the medical treatment Claimant received from Avrom Brown, D.O. (Claimant's osteopath) for his 1992 injury.

4. Initial Penalty Petition

During hearings, Claimant orally amended his petitions to include an initial penalty petition, alleging various violations of the Act.

5. First Board Order

After a first Workers' Compensation Judge (WCJ) denied his petitions, Claimant appealed. In a February 1999 decision, the Board reversed in part, vacated and remanded in part, and affirmed in part. (First Board Order). In this order the Board took several steps: (1) it reversed the first WCJ's decision denying Claimant's reinstatement petition, thereby granting reinstatement for the 1992 injury as of the 1995 lay off; (2) it remanded for consideration of Claimant's wage records following his 1992 injury and before the lay off; (3) it vacated denial of the claim petition and remanded for a determination of the causal relationship between the 1993 injury and Claimant's chiropractor's $790 bill; (4) it remanded for determination and award of counsel fees for unreasonable contest and costs on Employer's UR petition; and, (5) it affirmed denial of the initial penalty petition.

6. Remand WCJ

The matters were assigned to a new WCJ on remand (remand WCJ). She held several hearings and rendered the following decisions.

Regarding the 1992 injury, the remand WCJ ordered Employer pay Claimant total disability benefits for May 16 and 17, 1992, and partial disability benefits for July 6-August 16, 1992 and May 10, 1993-May 5, 1995, based on the earnings records submitted pursuant to the remand. The remand WCJ found Claimant did not prove any wage loss for the week of August 17, 1992.

Regarding the 1993 injury, the remand WCJ granted the claim petition in part and directed Employer pay Claimant's chiropractor bill, subject to the cost containment and UR provisions of the Act, provided the chiropractor submit his bills to Employer in the required manner.

Regarding unreasonable contest attorney's fees on the UR petition, the remand WCJ ordered payment of one quarter of attorney fees and litigation costs.

7. Penalty Petition II

After the remand WCJ circulated her order, Claimant filed another penalty petition (Penalty Petition II) alleging Employer's checks were not timely issued. Ultimately, the remand WCJ awarded a penalty on this petition.

8. Second Board Order

Both parties appealed. In its February 2004 decision the Board affirmed the remand WCJ's actions (Second Board Order).

9. Third Board Order

In March 2004, the Board affirmed the separate award of a penalty in Penalty Petition II (Third Board Order). The Board also agreed Employer's contest was reasonable because of a supersedeas request pending at the time.

Both parties appeal and raise multiple issues.⁴ By way of summary, Employer challenges the grant of reinstatement of benefits for the 1992 injury, challenges two days of benefits in 1992, challenges propriety of payment of the chiropractor bill, and contests the method of calculating the award of Claimant's attorney's fees. Claimant seeks to expand the award of attorney's fees, costs and penalties, seeks relief from the requirement that the chiropractor's bill be submitted in accordance with the Act and seeks an additional week of compensation. We address each issue.

II. First Board Order

A. Employer's Appeal — Reinstatement for 1992 Injury

Employer claims it was error for the Board to reverse the denial of Claimant's reinstatement petition, thereby granting reinstatement. Employer claims, in so deciding, the Board substituted its credibility determination for that of the fact-finder.

The essential question involving reinstatement was a factual one: did Claimant return to work after the 1992 injury with restrictions requiring job modification? If he returned to modified work, the loss of earning power following the 1995 lay off was presumed related to that injury. Klarich v. Workers' Comp. Appeal Bd. (RAC's Association), 819 A.2d 626 (Pa.Cmwlth.2003); Teledyne McKay v. Workmen's Comp. Appeal Bd. (Osmolinski), 688 A.2d 259 (Pa.Cmwlth.1997). If, however, Claimant returned to the time-of-injury job, he had the burden to affirmatively establish the causal connection between the 1992 injury and the loss of earnings following the 1995 lay off. Vista Int'l Hotel v. Workmen's Comp. Appeal Bd. (Daniels), 560 Pa. 12, 742 A.2d 649 (1999).

The first WCJ considered conflicting evidence. She rejected Claimant's testimony about restrictions as inconsistent.⁵ She accepted testimony from Employer's witness, Claimant's occasional supervisor, that Claimant returned to his prior job duties and performed them fully and without complaint. The first WCJ found Claimant "returned to work without restrictions in May 1993 and fully performed his pre-injury position ... until he was laid off due to manpower restrictions." Decision Circulated 8/29/97, Finding of Fact (F.F.) 14.

The Board reversed this decision, opining that Claimant's testimony as a whole was consistent. The Board also referenced an acknowledgment by Employer's witness on cross-examination that he was aware of physician restrictions placed on Claimant when he returned to work. The Board determined Claimant returned to work with restrictions, thus enabling him to rely on the presumed relationship between subsequent loss of earnings and the 1992 injury.

A WCJ must adequately explain why she rejected competent, conflicting evidence. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003). Where the fact-finder receives testimony by deposition, "some articulation of the actual objective basis for the credibility determination must be offered for the credibility decision to be a `reasoned' one which facilitates effective appellate review." Id. at 78, 828 A.2d at 1053.

Medical restrictions are material only if they require modification of a claimant's job duties. Klarich. Where a claimant, in spite of those limitations, is still able to perform his time-of-injury job, he is not entitled to the presumption. Id.; see Folk v. Workers' Comp. Appeal Bd. (Dana Corp.), 802 A.2d 1277 (Pa.Cmwlth.2002)

; Teledyne.

After careful review of the Claimant's deposition testimony, we agree with the Board that the record lacks substantial evidence to support the first WCJ's reason for her rejection of Claimant's testimony. Daniels.

Although not so described, the Board thereafter apparently applied a capricious disregard analysis to Claimant's testimony. Leon E. Wintermyer, Inc. v. Workers' Comp. Appeal Bd. (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002) (review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every agency case in which such question is raised). It apparently determined the testimony could not be disregarded as a matter of law.

Once the Board correctly concluded that the basis for rejecting Claimant's testimony was unsupported in the record, the Board had several choices as to further proceedings on the reinstatement petition. One option was to undertake a capricious disregard analysis. Doing so was not an abuse of discretion here. Further, Claimant's deposition clearly supports the Board's determinations. Among other things, the Claimant described modifications in his time-of-injury job. Under these circumstances, the Board correctly afforded Claimant a...