The Pennsylvania State University v. Workers' Compensation Appeal Board (Underhill), 111519 PACCA, 1662 C.D. 2018

Docket Nº:1662 C.D. 2018
Party Name:The Pennsylvania State University, Petitioner v. Workers' Compensation Appeal Board (Underhill), Respondent
Case Date:November 15, 2019
Court:Commonwealth Court of Pennsylvania

The Pennsylvania State University, Petitioner


Workers' Compensation Appeal Board (Underhill), Respondent

No. 1662 C.D. 2018

Commonwealth Court of Pennsylvania

November 15, 2019


Submitted: April 5, 2019




The Pennsylvania State University (Employer) petitions for review from the Workers' Compensation Appeal Board's (Board) order that affirmed a Workers' Compensation Judge's (WCJ) order granting William Underhill's (Claimant) Claim, Reinstatement and Penalty Petitions and awarding counsel fees under the Workers' Compensation Act (Act).1 Employer argues that the WCJ erred and abused her discretion by granting Claimant's Penalty Petition and awarding counsel fees based on Employer's alleged mishandling of the submission of appropriate documents. Employer also claims that the WCJ erred by granting Claimant's Claim and Reinstatement Petitions and awarding indemnity and medical expenses beyond February 3, 2016. Upon review, we affirm.

I. Background

Claimant worked for Employer for 11 years as a catering employee. On March 14, 2016, Claimant filed a Claim Petition alleging that he sustained a left knee patella subluxation/meniscus tear occurring on November 5, 2015, in the course and scope of his employment. Claimant sought partial disability benefits from November 6, 2015, to November 8, 2015, and total disability benefits thereafter, along with the payment of medical bills. Reproduced Record (R.R.) at 1a-3a.

Employer filed an answer stating that it issued a Notice of Temporary Compensation Payable (NTCP) on December 7, 2015, and paid benefits until February 3, 2016, when Employer issued a Notice Stopping Temporary Compensation (Notice Stopping) and a Notice of Compensation Denial (Denial). The Denial acknowledged a left knee sprain with a closed period payable from November 10, 2015 through February 2, 2016. Employer denied any ongoing disability. R.R. at 4a-5a.

Thereafter, Claimant filed Penalty and Reinstatement Petitions alleging that Employer unilaterally stopped payment of total disability benefits on February 3, 2016, without following the statutory requirements. Claimant asserted that Employer's Notice Stopping and the Denial, both dated February 3, 2016, were null and void because no NTCP was ever filed with the Bureau of Workers' Compensation (Bureau). Having failed to file an NTCP, Employer's payment of total disability benefits up to February 2, 2016, constituted an admission of liability tantamount to issuing a Notice of Compensation Payable (NCP). Claimant asserted that total disability benefits are payable as of February 3, 2016, and ongoing. In addition, Claimant requested penalties in the amount of 50 percent of unpaid benefits along with the payment of counsel fees based on Employer's violation of the Act. R.R. at 8a.

Employer filed a timely answer denying all material allegations in Claimant's Penalty and Reinstatement Petitions. Employer alleged that its carrier filed an NTCP dated November 30, 2015, by mail, which the Bureau received as acknowledged by its notice of receipt dated December 7, 2015. It also served the NTCP on Claimant by mail. Employer appropriately stopped benefits on February 3, 2016. R.R. at 12a.

Claimant subsequently amended his petitions to indicate that a suspension of benefits was appropriate as of September 19, 2016, based on his return to full-duty work.

Hearings before a WCJ ensued on all petitions. Claimant testified and presented the deposition testimony of Bureau Representative Harte Pricer (Bureau Representative), and his treating physician, Mark Buseck, M.D., a board-certified orthopedic surgeon (Claimant's Physician). In opposition, Employer presented Bureau documents, three surveillance videos, and the deposition testimony of Carrie Andrews, the carrier's claims adjuster (Claims Adjuster), John Michael Lindner, Employer's Director of Housing and Food Services, and Thomas Kramer, M.D., a board-certified orthopedic surgeon (Employer's Physician). A summary of the relevant testimony and findings follows.

With regard to the injury, Claimant testified his job as a catering employee was relatively physical and involved lifting heavy boxes and moving food carts. He testified that he injured his left knee while pulling a pallet jack with a heavy load that was stuck in an elevator. When he strained, he felt and heard a pop in his left knee, accompanied by an onset of pain, which continues. He worked the rest of his shift, then reported the injury to his supervisor and filled out an incident report. The next day, he returned to work, but could not continue working. He received treatment and returned to work with light-duty restrictions, which were no lifting over 10 pounds and no standing for more than two hours in a shift. Claimant worked Saturday, November 7, 2015, and was not scheduled to work on Sunday, November 8, 2015. He reported to work on Monday, November 9, 2015, but only worked a couple hours before his manager told him there was no more light-duty work available. Claimant testified that he received workers' compensation benefits until he returned to light-duty work on December 14, 2015. WCJ's Op., 6/30/17, Finding of Fact (F.F.) No. 9; R.R. at 43a-51a.

On December 16, 2015, Claimant returned to Claimant's Physician's office, reporting increased pain in his knee, at which point, Claimant was taken off work. On February 26, 2016, Claimant's Physician performed surgery on Claimant, where a cadaver bone was used to repair his medial patellofemoral ligament. After surgery, Claimant developed deep vein thrombosis blood clots and was treated with blood thinners, physical therapy, and a brace. In April 2016, Claimant underwent another anesthesia procedure, performed by his Physician, to manipulate his knee. Claimant's condition improved and he was released to light-duty work on July 1, 2016, but work within his restrictions was not offered. Claimant testified that he returned to full-duty work on September 19, 2016, and has been working ever since. He continues treatment for his knee, which remains symptomatic and painful. F.F. Nos. 9, 13; R.R. at 51a-59a.

Claimant's Physician testified that he examined and began treating Claimant's left knee injury on December 7, 2015. Claimant's Physician took a history from Claimant, reviewed his medical records, and conducted a medical exam. He observed swelling of the left knee and mobility issues. Claimant's Physician diagnosed Claimant with patellar subluxation with disruption of the medial patellofemoral ligament. He released Claimant to light-duty work. Upon a return examination on December 16, 2015, Claimant reported that his knee pain had worsened and he had difficulty climbing in and out of his work truck. At this point, a physician's assistant removed Claimant from work. At a follow-up visit in January 2016, Claimant continued to complain of pain and swelling. The diagnosis remained the same. Due to the persistence of pain, Claimant's Physician recommended surgical intervention. He operated on Claimant on February 26, 2016. Thereafter, Claimant developed deep vein thrombosis, which slowed down Claimant's therapy and recovery. Claimant's Physician performed a second surgical procedure to manipulate the left knee. Thereafter, Claimant's condition continued to improve. Claimant's Physician released Claimant to full-duty work as of September 19, 2016. Claimant's Physician opined that Claimant's left knee condition was causally related to the November 5, 2015, work injury as described by Claimant. F.F. No. 18.

Employer presented surveillance evidence, in the form of three videos and a report. The WCJ found: The one dated December 22, 2015 is very unstable and difficult to watch, but appears to show . . . Claimant walking at the Grove City Outlet. The surveillance appears to be following three (3) young men, however, you can only see them from behind and the picture is extremely jittery and it's impossible to note the gait of any of the individuals. Subsequent footage shows what appears to be young men trying on shirts or jackets, but the footage is in shadows and you can't make out who any of the individuals are let alone how they are moving. The other two (2) DVDs are of better quality, but similarly show . . . Claimant walking, sometimes with a limp, for relatively short periods of time. Sometimes the footage is of . . . Claimant going to or leaving physical therapy.

F.F. No. 17.

When questioned about the surveillance, Claimant explained that he "sucked it up" and was "willing to pay for it afterwards" in order to buy Christmas gifts for his children. F.F. No. 9; R.R. at 68a. He also testified that he was wearing a brace on his knee while...

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