M. Salvadori v. WCAB (UEGF and Farmers Propane, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Salvadori, :
Petitioner :
: No. 2166 C.D. 2015
v. :
: Argued: October 18, 2016
Workers’ Compensation Appeal :
Board (Uninsured Employers :
Guaranty Fund and Farmers :
Propane, Inc.), :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge (P.)
OPINION BY
JUDGE McCULLOUGH FILED: December 5, 2016
Mark Salvadori (Claimant) petitions for review of the October 9, 2015
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of the Workers’ Compensation Judge (WCJ) insofar as she granted
Claimant’s claim petition against Farmers Propane, Inc. (Employer), but reversed the
WCJ’s decision insofar as she granted Claimant’s claim petition against the
Uninsured Employers Guaranty Fund (UEGF).
Facts and Procedural History
Employer operates a trucking business in Ohio. Employer hired
Claimant as a truck driver. Claimant worked almost exclusively in Pennsylvania,
with a specific route from Pittsburgh, Pennsylvania to Blair, Pennsylvania. Claimant
would also make an occasional trip to Maryland. In the course and scope of his
employment on February 4, 2013, Claimant sustained numerous injuries after his
truck was struck by another truck. At the time, Claimant was parked at a truck stop
in Pennsylvania and he was doing paperwork in the front seat of his cab. Another
truck apparently lost its brakes coming down a hill and ran directly into Claimant’s
truck. He blacked out upon impact and woke up on the sleeper floor in the rear of his
cab. Claimant had to be extricated by rescue personnel as the cab of his truck was
totaled. (WCJ’s Findings of Fact Nos. 6(c)-(d), (p).)
As a result of the accident, Claimant sustained injuries to his right
shoulder, right arm, neck, hips, legs, and head. Claimant was initially transported to a
hospital in West Virginia and later sought treatment with his personal physician and
several specialists. Claimant spoke with his supervisor both on the day of the
accident and the day after to advise him of the accident and his resultant injuries.
Claimant has been unable to return to work due to his injuries. (WCJ’s Findings of
Fact Nos. 6(e)-(m).)
On February 15, 2013, Claimant filed a claim petition against Employer
alleging the injuries noted above. The petition was assigned to the WCJ with a
notation that insurance coverage could not be determined. (WCJ’s Finding of Fact
No. 1.) At a pre-trial hearing on April 5, 2013, counsel for Employer “tentatively”
appeared on its behalf, noting an apparent lack of coverage in Pennsylvania and
recommending that Claimant initiate a claim against the UEGF. (Reproduced Record
(R.R.) at 3a.) Employer filed an untimely answer on June 24, 2013,1 denying the
material allegations of Claimant’s petition and stating that it had no Pennsylvania
1
As a result, the WCJ later granted a motion filed by Claimant pursuant to Yellow Freight
System, Inc. v. Workmen's Compensation Appeal Board (Madara), 423 A.2d 1125 (Pa. Cmwlth.
1981), and deemed admitted all well pled factual averments in Claimant’s petition against
Employer. (WCJ’s Finding of Fact No. 5.)
2
insurance. In the meantime, Claimant filed a notice of claim with the UEGF on April
19, 2013. (WCJ’s Finding of Fact No. 2.) Shortly thereafter, on May 13, 2013,
Claimant filed a claim petition against the UEGF alleging the same injuries. The
UEGF filed an answer denying the material allegations of Claimant’s petition. The
UEGF also denied that Claimant complied with the notice requirements of section
1603(b) of the Workers’ Compensation Act (Act).2 This petition was consolidated
with Claimant’s earlier claim petition for purposes of hearing and decision by the
WCJ.
At a hearing held on April 24, 2013, newly-retained counsel confirmed
that Employer did not have Pennsylvania workers’ compensation insurance coverage
for the alleged injury date. Since Employer had not filed proof of insurance coverage
consistent with section 1605 of the Act, 77 P.S. §2705,3 the WCJ noted that there was
a rebuttable presumption of uninsurance. (WCJ’s Finding of Fact No. 3.) The matter
proceeded with further hearings. Claimant testified regarding the accident, his
resultant injuries, and his continuing medical treatment for the same. Claimant stated
that he never applied for Ohio workers’ compensation benefits and never submitted
any documentation to the Ohio Bureau of Workers’ Compensation.
Claimant also offered the deposition testimony of Steven Grossinger,
D.O., who is board-certified in psychiatry and neurology, as well as pain medicine.
2
Act of June 2, 1915, P.L. 736, added by the Act of November 9, 2006, P.L. 1362, 77 P.S.
§2703. Section 1603(b) requires an injured worker to “notify the fund within 45 days after the
worker knew that the employer was uninsured.” 77 P.S. §2703(b).
3
Added by the Act of November 9, 2006, P.L. 1362. Section 1605(a) provides that
“[w]ithin ten days of notice of a claim, [UEGF] shall demand from the employer proof of applicable
insurance coverage. Within 14 days from the date of [UEGF’s] request, the employer must provide
proof of insurance. If the employer does not provide proof, there shall be [sic] rebuttable
presumption of uninsurance.” 77 P.S. §2705(a).
3
Dr. Grossinger first saw Claimant on March 6, 2013, at which time Claimant had
been diagnosed with a right shoulder rotator cuff tear, injury to the anterior chest
wall, and disc herniations in his neck and low back. At the time, Claimant also
suffered from concussion symptoms, including headaches, nausea, and vertigo, and
experienced trouble with concentration and forgetfulness. Claimant received several
epidural steroid injections in his lower back and underwent multiple diagnostic
studies, including EMGs and MRIs. Dr. Grossinger testified that the results of these
studies were consistent with the injuries Claimant sustained as a result of the
February 4, 2013 work accident. Dr. Grossinger opined that Claimant was unable to
return to his pre-injury job and required further medical treatment, but could perform
some type of sedentary work.
Neither Employer nor the UEGF presented any medical or fact witnesses
in rebuttal. The WCJ accepted the testimony of Claimant and Dr. Grossinger as
credible and persuasive. The WCJ noted that the UEGF submitted evidence, without
objection by Claimant, in an attempt to rebut the presumption of uninsurance,
including a section 305.2(c)4 certification form and a copy of correspondence from
the Ohio Bureau of Workers’ Compensation.
4
Section 305.2 was added by the Act of December 5, 1974, P.L. 782, 77 P.S. §411.2.
Section 305.2(c) provides, in part, as follows:
If an employe is entitled to the benefits of this act by reason of an
injury sustained in this State in employment by an employer who is
domiciled in another state and who has not secured the payment of
compensation as required by this act, the employer or his carrier may
file with the director a certificate, issued by the commission or agency
of such other state having jurisdiction over workmen’s compensation
claims, certifying that such employer has secured the payment of
compensation under the workmen’s compensation law of such other
state and that with respect to said injury such employe is entitled to
the benefits provided under such law.
(Footnote continued on next page…)
4
Regarding the former, the WCJ indicated that said form stated that
Claimant was covered by Employer’s Ohio workers’ compensation insurance carrier
on February 4, 2013, and was entitled to benefits under Ohio’s workers’
compensation law. However, the WCJ found that there was no evidence that
Employer or its Ohio insurance carrier complied with all of the requirements outlined
in section 305.2 “so as to be deemed to have secured the payment of compensation
under the Pennsylvania Workers’ Compensation Act.” (WCJ’s Finding of Fact No.
4.) Additionally, the WCJ noted that the representations of Employer’s counsel were
contrary to the representations in this certification.
Regarding the latter, the WCJ noted that it consisted of a copy of
correspondence from the Ohio Bureau of Workers’ Compensation’s Law
Section/Subrogation Unit to ACS Claim Service, Inc., in Pennsylvania, and included
the contents of a March 4, 2014 letter sent to an attorney, John Warren, in Blue Bell,
Pennsylvania, seeking to enforce its subrogation rights as to $3,873.49 in medical
bills that the Ohio Bureau of Workers’ Compensation paid on behalf of Claimant.5
However, the WCJ found that “this documentation does not support that the
Employer had workers’ compensation insurance coverage in Pennsylvania on
February 4, 2013. Rather, it merely supports the entitlement to a credit for medical
payments made referable to the instant matter.” Id.
(continued…)
77 P.S. §411.2(c).
5
While not entirely clear in the record, it appears from the content of the letter as though
Attorney Warren had been representing Claimant in a third-party lawsuit against the driver and/or
owner of the truck that struck him. Indeed, the letter asks that Attorney Warren contact authorities
in Ohio to obtain a final lien amount prior to any settlement.
5
Finally, the WCJ noted that representatives of the Ohio Bureau of
Workers’ Compensation and Sheakley Uniservice never appeared or entered an
appearance in this matter, even though the latter received the assignment notice and
notice of all hearings.6 In this regard, the WCJ found that “[t]he aforementioned
entities have never indicated during the litigation of this matter that the Employer had
insurance in Pennsylvania for claims brought pursuant to the Pennsylvania Workers’
Compensation Act and have not taken any steps that would suggest any
acknowledgment of coverage for this Pennsylvania work injury.” Id.
WCJ’s Decision
Ultimately, the WCJ granted Claimant’s claim petitions against both
Employer and the UEGF. The WCJ concluded that Claimant had successfully proven
that he sustained work-related injuries on February 4, 2013, which rendered him
totally disabled as of that date. The WCJ also concluded that the UEGF was
secondarily liable for payment of the award because the evidence of record
established that Employer did not maintain workers’ compensation insurance in
Pennsylvania at the time of Claimant’s work injury. The WCJ further concluded that
UEGF failed to meet its burden of proving that Claimant did not file a timely notice
of claim pursuant to section 1603 of the Act. Employer and the UEGF thereafter
filed appeals with the Board.
6
During oral argument before this Court, the UEGF identified Sheakley Uniservice as a
third-party workers’ compensation administrator for the Ohio Bureau of Workers’ Compensation.
6
Board’s Decision
The Board affirmed the decision of the WCJ as to the grant of
Claimant’s claim petition against Employer, but reversed the decision of the WCJ as
to the grant of Claimant’s claim petition against the UEGF. In affirming the WCJ’s
grant of Claimant’s claim petition against Employer, the Board held that the credible
testimony of Claimant and Dr. Grossinger supported the WCJ’s finding that Claimant
sustained an injury at work on February 4, 2013, that rendered him totally disabled.
In reversing the WCJ’s grant of Claimant’s claim petition against the UEGF, the
Board held that the WCJ erred in finding that the UEGF was secondarily liable for
payment of the award. More specifically, the Board concluded that the section 305.2
certification submitted into evidence established that Employer was not uninsured,
that Employer had secured the payment of compensation under Ohio law, and that
Claimant was entitled to benefits under said law. The Board noted that the
aforementioned correspondence evidenced the payment of medical benefits on behalf
of Claimant by the Ohio Bureau of Workers’ Compensation. Claimant thereafter
filed a petition for review with this Court.
Discussion
On appeal to this Court,7 Claimant argues that the Board erred in
concluding that the section 305.2(c) certification form submitted into evidence by the
UEGF conforms to the dictates of the Act to allow Employer to be deemed insured as
7
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).
7
a matter of law and that, in reaching this conclusion, the Board improperly rejected
the supported findings of the WCJ, re-weighed evidence, and interpreted inferences
in the manner least favorable to him when he prevailed before the WCJ.
Section 305.2(c) of the Act
Section 305.2(c) provides as follows:
If an employe is entitled to the benefits of this act by reason
of an injury sustained in this State in employment by an
employer who is domiciled in another state and who has not
secured the payment of compensation as required by this
act, the employer or his carrier may file with the director a
certificate, issued by the commission or agency of such
other state having jurisdiction over workmen’s
compensation claims, certifying that such employer has
secured the payment of compensation under the workmen’s
compensation law of such other state and that with respect
to said injury such employe is entitled to the benefits
provided under such law.
In such event:
(1) The filing of such certificate shall
constitute an appointment by such employer or
his carrier of the Secretary of Labor and
Industry as his agent for acceptance of the
service of process in any proceeding brought
by such employe or his dependents to enforce
his or their rights under this act on account of
such injury;
(2) The secretary shall send to such employer
or carrier, by registered or certified mail to the
address shown on such certificate, a true copy
of any notice of claim or other process served
on the secretary by the employe or his
dependents in any proceeding brought to
enforce his or their rights under this act;
8
(3)
(i) If such employer is a qualified
self-insurer under the workmen’s
compensation law of such other
state, such employer shall, upon
submission of evidence,
satisfactory to the director, of his
ability to meet his liability to such
employe under this act, be
deemed to be a qualified self-
insurer under this act;
(ii) If such employer’s liability
under the workmen’s
compensation law of such other
state is insured, such employer’s
carrier, as to such employe or his
dependents only, shall be deemed
to be an insurer authorized to
write insurance under and be
subject to this act: Provided,
however, That unless its contract
with said employer requires it to
pay an amount equivalent to the
compensation benefits provided
by this act, its liability for income
benefits or medical and related
benefits shall not exceed the
amounts of such benefits for
which such insurer would have
been liable under the workmen’s
compensation law of such other
state;
(4) If the total amount for which such
employer’s insurance is liable under clause (3)
above is less than the total of the compensation
benefits to which such employe is entitled
under this act, the secretary may, if he deems it
necessary, require the employer to file
9
security, satisfactory to the secretary, to secure
the payment of benefits due such employe or
his dependents under this act; and
(5) Upon compliance with the preceding
requirements of this subsection (c), such
employer, as to such employe only, shall be
deemed to have secured the payment of
compensation under this act.
77 P.S. §411.2(c).
Ohio Law
Claimant first argues that the Board erred in failing to undertake any
review of Ohio law to support a determination that Claimant was in fact entitled to
benefits in Ohio for his Pennsylvania work injury. However, Claimant cites no
authority, either statutory or case law from this Commonwealth, requiring a WCJ or
the Board to undertake such a review. Instead, Claimant relies on two Ohio cases,
Prendergast v. Industrial Commission of Ohio, 27 N.E.2d 235 (Ohio 1940), and
Industrial Commission of Ohio v. Gardinio, 164 N.E. 758 (Ohio 1929), for support.
Claimant’s reliance is misplaced.
In Prendergast, Charles Prendergast (Decedent), husband of Thelma
Prendergast (wife), suffered fatal injuries in a 1931 accident in Indiana while selling
water meters for Bailey Meter Company (Bailey), an Ohio company. Following
Decedent’s death in 1931, his wife filed a claim for compensation first in Missouri,
which denied the same, and later in Ohio. The Industrial Commission of Ohio denied
the claim, but a common pleas court reversed. An Ohio appeals court affirmed this
decision, as did the Ohio Supreme Court. In its decision, the Ohio Supreme Court
concluded that the Ohio compensation law applied to “any employer doing business
10
in Ohio who hires employees to work either in Ohio or elsewhere.” Id. at 237. The
Ohio Supreme Court held that “[w]here an Ohio employer enters into a contract with
a person to perform transitory work outside of this state, without specification as to
the exact location or nature of the work, such as that of a traveling salesman, there is
no good reason why such person should not have coverage under the Ohio
Workmen’s Compensation Act.” Id. at 238. Thus, Prendergast actually supports an
out-of-state employee’s entitlement to Ohio benefits.
While Ohio benefits were denied in Gardinio, that case is factually
distinguishable from the present case. In Gardinio, an Ohio company hired an
employee to perform work exclusively in Pennsylvania, where he was injured.
However, the Ohio company had complied with, and covered the employee, under
the Act’s predecessor in this Commonwealth. In fact, the employee actually applied
for and received workers’ compensation benefits in accordance with Pennsylvania
law. Nevertheless, the employee filed a second claim in Ohio, in essence attempting
to recover double the amount of benefits to which he was entitled. The Ohio
Supreme Court ultimately reversed the decision of an appeals court awarding Ohio
benefits to employee, concluding that said benefits were not available to the
employee and stressing the employee’s recovery in this state.
In the present case, there is no dispute that Employer did not maintain
workers’ compensation coverage in this Commonwealth. However, this lack of
coverage did not preclude the grant of Claimant’s claim petition here. Indeed, the
Board affirmed the WCJ’s grant of Claimant’s claim petition against Employer. In
such cases, section 305.2(c) of the Act simply permits an out-of-state employer to file
a certification form with the Pennsylvania Bureau of Workers’ Compensation in
order to access its Ohio coverage for payments. The benefit of this legislative
11
enactment is clear, that the responsible employer, and not the UEGF, is liable for the
payment of compensation benefits.8 Moreover, we note that the record herein reveals
that the Ohio Bureau of Workers’ Compensation paid $3,873.49 in medical bills on
behalf of Claimant, further discounting any argument that Claimant would not be
entitled to benefits under Ohio law.
Section 305.2(c) Certification Form
Claimant next challenges the sufficiency of the section 305.2(c)
certification form submitted by Employer. However, we see no merit to this
argument by Claimant. At the hearings before the WCJ, the UEGF submitted a
packet of documents, certified by the Pennsylvania Bureau of Workers’
Compensation, which included the certification form. This certification form was
submitted on behalf of the Ohio Bureau of Workers’ Compensation and signed by
Shelli Hensley, who identifies herself as an operations manager for Sheakley
Uniservice. The certification form states that Employer had workers’ compensation
insurance coverage in Ohio on February 4, 2013, the date of Claimant’s work injury,
that Claimant was covered under this policy, and that Claimant was entitled to
benefits under Ohio’s workers’ compensation law. The certification form identifies
the Ohio Bureau of Workers’ Compensation as the insurer responsible for the claim
and proceeds to set forth an insurance policy number, effective December 19, 2008,
which policy remained active as of January 6, 2014, the date the form was signed.
8
Indeed, the UEGF is primarily funded by assessments of Pennsylvania workers’
compensation insurers and self-insurers. See Sections 1602 and 1607 of the Act, added by the Act
of November 9, 2006, P.L. 1362, 77 P.S. §§2702, 2707.
12
Thus, the certification form complied with the requirements of section 305.2(c) of the
Act.
While Claimant takes issue with the lack of any evidence that Employer
was domiciled in Ohio or the lack of further activity under sections 305.2(c)(1)-(5) of
the Act, the fact remains that section 305.2(c) imposes no such requirement regarding
the former and the latter relates to post-submission actions undertaken by the
Secretary of the Department of Labor and Industry, not Employer. In the course of
this argument, we also note that Claimant misidentifies Sheakley Uniservice as
Employer’s third-party workers’ compensation administrator in Ohio, when it appears
that Sheakley Uniservice acts in that capacity for the Ohio Bureau of Workers’
Compensation. Further, Claimant argues that the certification form lacks any
statement that Employer has secured payment of compensation to Claimant to which
he is entitled under Ohio law. However, the certification form states that Employer
had workers’ compensation insurance in Ohio at the time of the accident and that
Claimant was entitled to benefits under Ohio law. These statements, coupled with the
record evidence that the Ohio Bureau of Workers’ Compensation paid $3,873.49 in
medical bills on behalf of Claimant, belie Claimant’s argument.
Board’s Scope and Standard of Review
Finally, Claimant argues that the Board erred by improperly rejecting
the supported findings of the WCJ, re-weighing evidence, and interpreting inferences
in the manner least favorable to him when he prevailed before the WCJ. However,
we disagree with Claimant’s characterization of the Board’s actions. The Board
recognized the WCJ’s complete authority over questions and evidentiary weight. See
Board op. at 3. Contrary to Claimant’s arguments, the Board merely held that the
13
certification form submitted by Employer met the requirements of section 305.2(c) of
the Act such that the WCJ’s finding that Employer was uninsured was not supported
by substantial evidence. Based upon our review above, we see no error in the
Board’s holding.
Conclusion
Because the certification form submitted into evidence by the UEGF
conforms to the requirements of section 305.2(c) of the Act, the Board properly held
that Employer was deemed to be insured as a matter of law. The Board did not
improperly reject the supported findings of the WCJ, re-weigh evidence, or interpret
inferences in the manner least favorable to Claimant. Instead, the Board merely held
that the WCJ’s finding that Employer was uninsured was not supported by the record.
Accordingly, the order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Salvadori, :
Petitioner :
: No. 2166 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Uninsured Employers :
Guaranty Fund and Farmers :
Propane, Inc.), :
Respondents :
ORDER
AND NOW, this 5th day of December, 2016, the order of the
Workers’ Compensation Appeal Board, dated October 9, 2015, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge