Bryn Mawr Landscaping Co. v. WCAB (Cruz-Tenorio) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryn Mawr Landscaping Company, :
Petitioner :
:
v. : No. 1268 C.D. 2018
: Submitted: February 22, 2019
Workers’ Compensation Appeal Board :
(Cruz-Tenorio), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: October 18, 2019
Bryn Mawr Landscaping Company (Employer) petitions for review of
an adjudication of the Workers’ Compensation Appeal Board (Board) that granted
Jonathan De Jesus Cruz-Tenorio’s (Claimant) claim petition and denied Employer’s
termination and suspension petitions that were each submitted pursuant to the
Workers’ Compensation Act (Act).1 In doing so, the Board affirmed the decision of
the Workers’ Compensation Judge (WCJ) that Claimant suffered a disabling injury
at work. Discerning no error, we affirm the Board.
Claimant worked for Employer for three years performing tree
trimming and removal services. On May 15, 2015, Claimant was struck in the head
by a large tree branch. On June 1, 2015, Employer issued a medical only Notice of
Temporary Compensation Payable (NTCP) listing head concussion as the injury.
On June 2, 2015, Employer issued a second medical only NTCP accepting head
contusion as Claimant’s injury.2
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2710.
2
Steel Suppliers Erectors, Inc. was improperly listed as the employer on the first NTCP.
On August 5, 2015, Claimant filed a claim petition alleging that he
sustained a “concussion, traumatic brain injury with difficulty comprehending,
memory loss, severe headaches and migraines, severe dizziness, head pain, bilateral
vision problems including double vision, neck pain that radiates to the right
shoulder; anxiety and depression” as a result of the May 15, 2015, incident.
Reproduced Record at 2 (R.R.__). On the same day, Claimant filed a penalty
petition asserting that Employer had violated the Act by not issuing a Notice of
Compensation Payable (NCP) and not paying indemnity benefits as of the date of
injury. Claimant further averred that Employer interfered with his ability to obtain
medical treatment. Employer filed an answer denying the allegations, and the matter
was assigned to a WCJ. Thereafter, Employer filed a termination petition alleging
that Claimant had fully recovered from his work-related injuries. Employer also
filed a suspension petition seeking, as “lesser included relief,” a change in
Claimant’s status to partially disabled because he could not lawfully work in the
United States. R.R. 31.
Claimant testified before the WCJ on September 3, 2015. Claimant,
who is a citizen of Mexico, testified that he has come to the United States to work
for Employer every year since 2012. He explained that his job with Employer
required him to cut branches with a chainsaw and place them in a branch chipper.
On May 15, 2015, a tree branch being pulled by a cable struck him in the head behind
his right ear. The force was strong enough to break the right ear protector of his
helmet. Claimant immediately saw darkness and experienced dizziness and head
pain. Claimant was initially treated in the emergency room at Paoli Hospital.
Thereafter, he began treating with Dr. Dan Gzesh, a neurologist, and Dr. Bruce
Menkowitz, an orthopedic surgeon.
2
Claimant testified that the injury caused pain to his head, neck and right
shoulder. The pain in his head extended from behind his right ear to the front of his
head. He experienced memory loss, dizziness, vision problems and nervousness.
On June 15, 2015, he was driving to get a prescription but became confused and
could not remember where he was or where he was going. He called his brother,
who took him to Einstein Hospital Emergency Room. Claimant has not driven since
this incident.
Claimant testified by deposition on February 2, 2016. As of that date,
Claimant was still treating with Dr. Gzesh and Dr. Menkowitz, who had not cleared
him to return to work. Claimant testified that he continues to suffer headaches, neck
and right shoulder pain and, on occasion, dizziness and blurry vision. Claimant
stated that he was depressed, nervous and insecure because of his symptoms.
Claimant was going to physical therapy twice a week to treat his neck and shoulder
pain.
Claimant offered the deposition testimony of Dr. Gzesh, a board-
certified neurologist, who began treating Claimant in June 2015 for headaches,
dizziness, double vision, memory loss, hearing loss, ringing noises in his ears and
problems with balance and trouble sleeping at night.
After a physical and neurological examination, Dr. Gzesh found that
Claimant had abnormal eye movements, which Dr. Gzesh deemed congenital.
Claimant also had nystagmus, a condition causing beating eye movements when a
patient looks in one direction. Dr. Gzesh explained that nystagmus may be caused
by problems with the vestibular system, which was distinct from Claimant’s
congenital abnormal eye movements. Dr. Gzesh diagnosed Claimant with post-
3
concussive syndrome,3 post-concussive headaches, nystagmus and vestibular
dysfunction, all of which he attributed to the May 15, 2015, injury.
Dr. Gzesh referred Claimant for vestibular therapy to help with his
dizziness and ordered magnetic resonance imaging (MRI) to rule out other possible
causes of Claimant’s nystagmus. Dr. Gzesh saw Claimant again in July, September,
and November of 2015. During this time, Dr. Gzesh prescribed four different
medications, none of which alleviated Claimant’s headaches. Dr. Gzesh stated that
this is not uncommon. Claimant could not attend vestibular therapy because his
insurance did not cover the cost.
Dr. Gzesh opined that Claimant’s initial symptoms had not resolved.
He stated that Claimant’s return to work in tree trimming was a “very poor idea”
because of Claimant’s impaired cognition and balance. N.T., 11/25/2015, at 24;
R.R. 322. On cross-examination, Dr. Gzesh conceded that post-concussive
symptoms usually resolve after a three to six-week period but stated that it is “not
uncommon for people to have persistent symptoms [for] more than six months.” Id.
at 65; R.R. 363. Dr. Gzesh further explained that if a patient is unable to receive
vestibular therapy when it is prescribed, his recovery from post-concussive
syndrome will be delayed and his balance and function may be adversely affected.
Claimant offered the deposition testimony of Dr. Menkowitz, who is
board certified in orthopedic surgery. Dr. Menkowitz began treating Claimant in
August 2015. Claimant reported pain and limited motion in his right arm and pain
in his neck. A physical examination revealed Claimant had full range of cervical
motion, but experienced tenderness in his right shoulder and pain during extension
3
Post-concussive syndrome is a group of symptoms present after a head injury and can include
headaches, dizziness, insomnia, depression, cognitive impairment, anorexia, irritability, mood
swings and depression. Notes of Testimony (N.T.), 11/25/2015, at 18; R.R. 316.
4
and internal rotation of his right arm. Dr. Menkowitz diagnosed Claimant with a
cervical sprain and strain, neuralgia, neuritis and radiculitis, all of which were
directly related to Claimant’s May 15, 2015, injury. Dr. Menkowitz recommended
physical therapy and an MRI of Claimant’s cervical spine.
Dr. Menkowitz saw Claimant again in October 2015. Claimant
reported pain in his right shoulder. An MRI revealed inflammation in the right
rotator cuff and adhesive capsulitis, which occurs when “the covering over the joint
has become thickened and tightened down” and “restricts motion.” N.T.,
11/13/2015, at 20; R.R. 414. This condition is known as an “acquired stiff shoulder,”
and it remained the same when Dr. Menkowitz saw Claimant in November 2015.
Dr. Menkowitz opined that Claimant could not return to his pre-injury job, but that
he could work in a sedentary capacity.
On cross-examination, Dr. Menkowitz conceded that there was no
indication that Claimant had been struck in the shoulder, but explained that “in any
injury where the side of the head is struck there’s going to be motion of the neck.
And any motion that is not voluntary has an extremely high incidence of causing
tissue damage.” Id. at 42-43; R.R. 436-37. This tissue damage limits the motion of
the neck and extends to the shoulder, causing adhesive capsulitis. Dr. Menkowitz
opined that adhesive capsulitis does not resolve on its own and typically requires
physical therapy and anti-inflammatory medications. However, Dr. Menkowitz
could not prescribe anti-inflammatory medications because of Claimant’s
neurological issues.
Claimant presented the deposition testimony of Jennifer Bertolini, the
adjuster who began handling his claim on August 14, 2015. Bertolini testified that
the Paoli Hospital Emergency Room records of May 26, 2015, reported that
5
Claimant sustained head and cervical injuries. On June 1, 2015, Employer issued a
medical only NTCP stating there was no medical evidence of disability. Employer
also received disability notes from Dr. Gzesh and Dr. Menkowitz, but did not pay
Claimant because it was waiting for an affidavit of recovery from its own physicians.
Bertolini conceded that Claimant had a valid work visa on the date of injury, but
Employer investigated Claimant’s immigration status in May 2015 to see how it
impacted the claim.
Employer offered the deposition testimony of Dr. Richard Katz, a
board-certified neurologist who conducted an independent medical examination
(IME) of Claimant on October 8, 2015. Dr. Katz testified that his examination of
Claimant was normal, except for findings related to Claimant’s nystagmus and the
slight deviation of his right eye. Dr. Katz opined that these findings indicated a
problem with Claimant’s brain stem that could not be attributed to Claimant’s May
15, 2015, work injury. Dr. Katz further stated that Claimant sustained a concussion
from the work injury and that most patients recover in 6 to 12 weeks. He agreed
with Dr. Gzesh’s diagnosis of post-concussive syndrome but disagreed that the
syndrome continued as of his IME. He did not believe Claimant’s complaints were
attributable to the work injury. Dr. Katz disagreed with Dr. Gzesh’s diagnosis of
vestibular dysfunction because Claimant had no symptoms of vertigo.
Employer also provided the deposition testimony of Dr. Arnold
Berman, a board-certified orthopedic surgeon, who did an IME of Claimant on
October 13, 2015. Dr. Berman determined Claimant had suffered a neck strain and
sprain that radiated to the right shoulder, but it had resolved. Dr. Berman explained
that a neck strain and sprain typically resolves itself in two to four weeks, but
occasionally resolves in six to eight weeks. Dr. Berman opined that abnormalities
6
found on the MRI were attributable to Claimant’s prior unrelated repetitive heavy
work and lifting as a landscaper.
Employer presented the deposition testimony of its president, Thomas
Foga, Jr. He testified that Employer sponsored workers every year and that these
workers were authorized to work in the United States by an H-2B visa from April to
December each year. Foga testified that he did not know about Claimant’s
immigration status after the date of his injury on May 15, 2015.
In April 2016, the parties submitted a stipulation of facts to the WCJ,
which she accepted. The stipulation read, in pertinent part, as follows:
8. Upon approval of this Stipulation, Employer agreed Claimant
will receive [Temporary Total Disability] benefits for the closed
period of May 15, 2015 through October 13, 2015 at an average
weekly wage of $494.60 corresponding to a compensation rate
of $445.14.
***
11. The Employer admits that Claimant’s accepted injury will
include a cerebral concussion pursuant to Dr. Richard Katz’s
October 8, 2015 IME report. The Employer also admits
Claimant’s accepted injury will include a neck sprain/strain
pursuant to Dr. Arnold Berman’s October 13, 2015 IME report.
Acceptance of these diagnoses was proposed via stipulation to
Claimant’s counsel on February 5, 2016.
12. Currently pending before the Honorable Kelly Melcher is
Claimant’s Claim Petition, Penalty Petition and Employer’s
Termination Petition and Suspension Petition. The Parties agree
the Stipulation of Fact only resolves the Claim Petition, except
for Claimant’s claim for unreasonable contest attorney’s fees.
Employer will be proceeding with litigation on the Termination
and Suspension Petitions and Claimant will proceed with the
Penalty Petition.
13. The Parties reserve all other rights under the Act. Claimant
specifically reserves the right to file a Review Petition to expand
the description of injury. Employer specifically reserves the right
7
to file future petitions to modify, suspend, or terminate
Claimant’s benefits. Employer also reserves the right to file a
Utilization Review Request to address the reasonableness and
necessity of Claimant’s medical treatment.
14. Claimant and his attorney have entered into a fee agreement
of 20% which will be deducted from the Claimant’s share of
benefits.
R.R. 844-45.
The WCJ granted Claimant’s claim petition and denied Employer’s
termination and suspension petitions. The WCJ found Claimant’s testimony
credible and persuasive. She found that Claimant was authorized to work in the
United States on the date of the injury, May 15, 2015, pursuant to an H-2B visa.4
The WCJ found that Claimant’s compensable injuries included a concussion and
post-concussive syndrome, vestibular dysfunction, nystagmus, cervical
sprain/strain, right shoulder sprain/strain, radiculitis, adhesive capsulitis, neuritis
and neuralgia. The WCJ further found that Claimant was not able to return to work.
4
An H-2B visa is issued pursuant to Section 101(a)(15)(H)(ii)(b) of the Immigration and
Nationality Act of 1952, which provides, in part:
(15) The term “immigrant” means every alien except an alien who is within one of
the following classes of nonimmigrant aliens—
***
(H) an alien
***
(ii)(b) having a residence in a foreign country which
he has no intention of abandoning who is coming
temporarily to the United States to perform other
temporary service or labor if unemployed persons
capable of performing such service or labor cannot
be found in this country.
8 U.S.C. §1101(a)(15)(H)(ii)(b).
8
The WCJ credited Dr. Gzesh’s testimony over that of Dr. Katz, citing
Dr. Gzesh’s status as Claimant’s treating physician and his sterling credentials. The
WCJ discredited Dr. Katz’s testimony that Claimant had fully recovered because
there was no evidence that his ongoing symptoms pre-dated the work injury. The
WCJ found Dr. Menkowitz’s testimony more credible and persuasive than Dr.
Berman’s testimony because he was Claimant’s treating physician. The WCJ noted
that Dr. Menkowitz’s opinions were consistent with Claimant’s testimony about his
ongoing symptoms. As to the cause of Claimant’s neck and right shoulder pain, the
WCJ stated that “Dr. Berman acknowledged the findings in the right shoulder on
MRI but opined that the findings were unrelated to the work injury of May 15, 2015
but then stated that the findings were the result of work activities as a landscaper.”
WCJ Decision, 12/12/2016, at 19. Citing these contradictory findings, the WCJ
discredited Dr. Berman’s testimony.
The WCJ credited Bertolini’s testimony about when Employer learned
of Claimant’s injuries and work restrictions. The WCJ concluded that Employer
violated the Act by not paying indemnity benefits despite receiving out-of-work
notes from Paoli Hospital’s emergency room and Claimant’s neurologist. The WCJ
granted Claimant’s penalty petition, assessing a 50-percent penalty on all
outstanding indemnity benefits and a 25-percent penalty on the indemnity benefits
already paid in January 2016. The WCJ further found that Employer failed to present
a reasonable contest from the date of the injury through October 13, 2015, the date
of Dr. Berman’s IME. Although Claimant had not submitted a quantum meruit fee
request, the WCJ determined that an appropriate award of counsel fees for the
limited scope of the unreasonable contest was $4,000.00. Because Claimant’s
counsel had already received $2,390.14, the WCJ ordered that the remainder of the
9
$4,000.00 would be paid by Employer without deducting it from Claimant’s ongoing
wage loss “until such time that it represents 20% of the fees owed from the indemnity
benefits from October 14, 2015 and ongoing. Thereafter, 20% shall be deducted
from Claimant’s weekly indemnity benefits.” Id. at 22. Employer appealed to the
Board.
On appeal, the Board reversed the grant of Claimant’s penalty petition.
The Board remanded the matter to the WCJ to allow Claimant to submit an
itemization of litigation costs. On remand, the WCJ awarded reimbursement of
Claimant’s litigation costs in the amount of $7,684.64. Employer appealed the
WCJ’s second decision for the sole purpose of obtaining an order from the Board
making its prior order final and appealable to this Court. The Board granted this
request.
On appeal,5 Employer raises several issues. First, Employer argues that
Claimant did not sustain his burden of proving his entitlement to benefits because
he offered no evidence that he can lawfully work in the United States. Second,
Employer argues that, even if Claimant were entitled to benefits, the WCJ erred in
denying its suspension petition because the record showed Claimant’s work visa had
expired and he was physically capable of returning to sedentary work. Third,
Employer argues that the WCJ’s findings that Claimant suffered additional injuries
are not supported by substantial evidence and the WCJ’s decision is not well-
reasoned. Fourth, Employer argues that the WCJ erred in awarding Claimant
litigation costs and in holding that Claimant’s counsel is entitled to a quantum meruit
5
Our review determines whether there has been a violation of constitutional rights, whether errors
of law have been committed, whether board procedures were violated, or whether necessary
findings of fact are supported by substantial evidence. Reed v. Workers’ Compensation Appeal
Board (Allied Signal, Inc.), 114 A.3d 464, 468 n.3 (Pa. Cmwlth. 2015). Additionally, when raised,
this Court will review for capricious disregard of evidence. Id.
10
fee. Claimant counters that Employer’s petition for review is frivolous and,
accordingly, he is entitled to an award of counsel fees by this Court.
In its first issue, Employer argues that Claimant did not sustain his
burden of proving his entitlement to benefits because he offered no evidence that he
can lawfully work in the United States.6 A claimant seeking workers’ compensation
benefits must establish: (1) he was injured while in the course of employment, and
(2) the injury resulted in a loss of earning power. Bethlehem Steel Corporation v.
Workmen’s Compensation Appeal Board (Baxter), 708 A.2d 801, 802 (Pa. 1998).
Our Supreme Court has explained:
Inasmuch as these are the only two things a claimant is required
to demonstrate in order to successfully maintain a claim petition
and obtain compensation for wage loss and medical treatment
costs under the [Act], a claimant’s eligibility to lawfully work in
the United States is not a relevant consideration in establishing
either of these factors.
Cruz v. Workers’ Compensation Appeal Board (Kennett Square Specialties), 99
A.3d 397, 407 (Pa. 2014) (emphasis in original). The WCJ found that Claimant
proved that he sustained a work-related injury on May 15, 2015, that this injury
caused Claimant’s ongoing disability. His citizenship status was irrelevant to his
6
Claimant responds by stating that he was not undocumented on the date of his injury; therefore,
his immigration status did not cause his wage loss. Claimant asserts that even if he was
undocumented, Employer waived this argument by stipulating that Claimant met his burden of
showing “disability” for purposes of the claim petition. Claimant Brief at 9. The parties entered
into a Stipulation of Fact in April 2016. See R.R. 843-45. Employer accepted Claimant’s injuries
as a cerebral concussion and neck sprain/strain pursuant to its experts’ testimony. Generally, “once
a stipulation of facts has been effectively entered into, there can be no valid contention or
conclusion that facts within the scope of the stipulation are unsupported by substantial evidence.”
Kostecky v. Mattern, 452 A.2d 100, 104 (Pa. Cmwlth. 1982). However, the parties did not stipulate
that Claimant’s work injury was the sole cause of his disability.
11
eligibility for benefits. Id. Simply, Employer’s argument on Claimant’s ability to
work in the United States lacks merit.
In its second issue, Employer argues that, even if Claimant is entitled
to benefits, the WCJ erred in denying its suspension petition. The record shows that
Claimant’s work visa had expired and he was physically capable of returning to
work.
Beginning with the visa issue, Employer asserts that it met its burden
for suspension of benefits because Claimant’s “disability,” i.e., lack of earning
capacity, is attributable to his undocumented status. Employer further asserts that
Claimant had the burden of proving that he was legally entitled to work in the United
States following the date of his injury. We disagree.
Under Section 413 of the Act, 77 P.S. §772, a claimant’s benefits may
be suspended if his loss of earning capacity can be attributed to something other than
the work-related injury.7 The employer has the burden of proof on this point.
Campbell v. Workers’ Compensation Appeal Board (Antietam Valley Animal
Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998). Employer did not establish
that Claimant was an unauthorized alien and that his loss of earning power was
7
Section 413 provides, in part:
A workers’ compensation judge designated by the department may, at any time,
modify, reinstate, suspend, or terminate a notice of compensation payable, an
original or supplemental agreement or an award of the department or its workers’
compensation judge, upon petition filed by either party with the department, upon
proof that the disability of an injured employe has increased, decreased, recurred,
or has temporarily or finally ceased, or that the status of any dependent has changed.
Such modification, reinstatement, suspension, or termination shall be made as of
the date upon which it is shown that the disability of the injured employe has
increased, decreased, recurred, or has temporarily or finally ceased, or upon which
it is shown that the status of any dependent has changed.
77 P.S. §772.
12
caused by his immigration status, as opposed to his work injury. Employer’s
president, Thomas Foga, Jr., testified that he believed Claimant’s visa had expired
in December 2015, but he acknowledged that he was not sure of Claimant’s
immigration status after his injury. Claimant was working legally pursuant to his H-
2B visa when he sustained the work-related injury, and the WCJ so found. Employer
failed to establish that Claimant’s loss of earning power was caused solely by his
immigration status.
Employer asserts as an alternative basis for suspension that Claimant
was capable of returning to work. The WCJ found that Employer offered no credible
evidence that Claimant was capable of working in any capacity, which is supported
by the credited evidence. Dr. Gzesh opined that Claimant could not return to work
because of his impaired cognition and balance. Dr. Menkowitz did not believe
Claimant could return to his pre-injury job but might be able to work in a sedentary
position. Accordingly, the WCJ did not err in denying Employer’s suspension
petition.
Employer asserts that Dr. Katz and Dr. Berman provided substantial
evidence that Claimant could return to work. However, the WCJ did not find either
witness credible or persuasive. Instead, the WCJ credited Dr. Gzesh’s statements
that Claimant could not return to work because of his impaired cognition and
balance. Dr. Menkowitz conceded that Claimant could work in a sedentary position,
but that was not dipositive because Dr. Gzesh would not clear him to work because
of his neurological issues. The WCJ credited the testimony of both of Claimant’s
doctors, and the WCJ, as factfinder, has sole discretion to assess credibility and to
resolve conflicts in the evidence. Bethenergy Mines, Inc. v. Workmen’s
Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa. 1992). We decline
13
to revisit the WCJ’s credibility determinations. Minicozzi v. Workers’
Compensation Appeal Board (Industrial Metal Plating, Inc.), 873 A.2d 25, 28-29
(Pa. Cmwlth. 2005) (explaining that this Court is bound by the WCJ’s credibility
determinations).
In its third issue, Employer argues that the WCJ’s findings that
Claimant suffered additional injuries are not supported by substantial evidence and
the WCJ’s decision is not well-reasoned. More specifically, Employer argues that
the record does not support the WCJ’s conclusion that Claimant sustained injuries
in addition to the concussion and cervical sprain/strain identified in the stipulation.
Substantial evidence is such evidence that a reasonable mind might accept as
adequate to support a conclusion. Peak v. Unemployment Compensation Board of
Review, 501 A.2d 1383, 1387 (Pa. 1985). In doing a substantial evidence analysis,
this Court views the evidence in a light most favorable to the party who prevailed
before the factfinder. Birmingham Fire Insurance Company v. Workmen’s
Compensation Appeal Board (Kennedy), 657 A.2d 96, 98 (Pa. Cmwlth. 1995).
The WCJ credited Claimant’s medical experts, Dr. Gzesh and Dr.
Menkowitz, that Claimant sustained additional injuries to his eyes, neck and right
shoulder. Dr. Gzesh opined that Claimant’s nystagmus was caused by a problem
with his vestibular system as a result of the work injury. Claimant was unable to
afford vestibular therapy to help with his eyes so his condition did not improve. The
WCJ found Dr. Gzesh more credible and persuasive than Employer’s neurologist,
Dr. Katz, because Dr. Gzesh was Claimant’s treating physician, whereas Dr. Katz
saw Claimant only for the purposes of litigation. The WCJ also found that Dr. Gzesh
had superior credentials.
14
Similarly, the WCJ credited Dr. Menkowitz’s testimony regarding
Claimant’s additional neck and right shoulder injuries because he treated Claimant
on numerous occasions. Both doctors agreed that Claimant sustained a work-related
injury to his neck and right shoulder. Employer’s orthopedic expert, Dr. Berman,
attributed Claimant’s right shoulder pain to his work as a landscaper, but then stated
it was unrelated to the work injuries, which the parties stipulated occurred while
Claimant was performing landscaping work. The WCJ discredited Dr. Berman’s
contradictory testimony. On the other hand, the WCJ found Dr. Menkowitz’s
testimony on this point was consistent with Claimant’s testimony. In sum, the
WCJ’s findings on additional injuries are supported by substantial competent
evidence.
Finally, Employer argues that the WCJ improperly awarded litigation
costs and quantum meruit fees to Claimant. Employer argues that Claimant was not
entitled to litigation costs because “there was no evidence of litigation costs until a
second hearing was held on February 22, 2018 pursuant to the [Board’s remand],”
and that, based on the record, no costs should be awarded to Claimant because “there
[was] no reason for essentially reopening the record.” Employer Brief at 35.
However, Section 440(a) of the Act, added by Section 3 of the Act of February 8,
1972, P.L. 25, as amended, 77 P.S. §996(a),8 provides that a successful claimant
8
Section 440(a) provides:
(a) In any contested case where the insurer has contested liability in whole or in
part, including contested cases involving petitions to terminate, reinstate, increase,
reduce or otherwise modify compensation awards, agreements or other payment
arrangements or to set aside final receipts, the employe or his dependent, as the case
may be, in whose favor the matter at issue has been finally determined in whole or
in part shall be awarded, in addition to the award for compensation, a reasonable
sum for costs incurred for attorney’s fee, witnesses, necessary medical
examination, and the value of unreimbursed lost time to attend the proceedings:
15
shall be awarded litigation costs. Indeed, the Board’s regulations provide that the
evidentiary record may be held open if it is determined that additional evidence
needs to be submitted. 34 Pa. Code §131.101(c).9 Because the issues in this case
were decided in Claimant’s favor, the WCJ did not err in awarding costs in the
amount of $7,684.64. Braun Baking Company v. Workmen’s Compensation Appeal
Board (Stevens), 583 A.2d 860, 864 (Pa. Cmwlth. 1990) (when a claimant prevails
on a petition under the Act, this Court defers to the WCJ’s exercise of discretion in
awarding reasonable litigation costs.).
Employer also asserts that the WCJ erred in finding that Employer’s
contest was not reasonable and that Claimant was entitled to an award of attorney
fees. Section 440(a) of the Act, 77 P.S. §996(a), provides that a claimant who is
successful in whole or in part in the litigation is entitled to an award of attorney fees,
unless the employer’s contest is reasonable. Jones v. Workers’ Compensation
Appeal Board (Steris Corporation), 874 A.2d 717, 720 (Pa. Cmwlth. 2005). A
contest is reasonable where the employer presents medical evidence that is contrary
to the claimant’s evidence and where it is evident that the employer’s contest is not
Provided, That cost for attorney fees may be excluded when a reasonable basis for
the contest has been established by the employer or the insurer.
77 P.S. §996(a).
9
Section 131.101(c) provides:
(c) The evidentiary record is closed when the parties have submitted all of their
evidence and rested or when the judge has closed the evidentiary record on a party’s
motion or the judge’s own motion. If the judge determines that additional hearings
are necessary, or that additional evidence needs to be submitted, or if the judge
schedules additional written or oral argument, the evidentiary record may be held
open by the judge. When the judge determines that the evidentiary record is closed,
the judge will notify the parties that the evidentiary record is closed on the record
or in writing.
34 Pa. Code §131.101(c) (emphasis added).
16
frivolous or done to harass the claimant. United States Steel Corporation v. Workers’
Compensation Appeal Board (Luczki), 887 A.2d 817, 821 (Pa. Cmwlth. 2005).
“[T]he reviewing court must look at the totality of the circumstances,” not whether
there is a conflict in the evidence on which one party prevails. Majesky v.
Workmen’s Compensation Appeal Board (Transit America, Inc.), 595 A.2d 761, 764
(Pa. Cmwlth. 1991). The reasonableness of an employer’s contest depends on
whether the issue involved a genuine dispute, which can be a legal or factual issue,
or both. McGuire v. Workmen’s Compensation Appeal Board (H.B. Deviney Co.,
sub. of J.M. Smucker Co.), 591 A.2d 372, 374 (Pa. Cmwlth. 1991).
The WCJ found that Employer failed to present a reasonable contest
from the date of injury through October 13, 2015, the date of Dr. Berman’s IME
report stating that Claimant had fully recovered. We agree with the WCJ that
Employer’s contest became reasonable once it received Dr. Berman’s report. We
also agree with the WCJ’s conclusion that Employer’s contest before October 13,
2015, was not reasonable. That conclusion is supported by the record evidence, i.e.,
the testimony by the claims adjuster for Employer’s insurer that it received a note
from the Paoli Hospital Emergency Room excusing Claimant from work but still
contested Claimant’s entitlement to disability compensation. Further, Employer
issued a medical only NTCP. The claims adjuster also testified that Employer had
Claimant’s emergency room records and information confirming that Claimant had
a legitimate work visa and could not work. Because Employer failed to present a
reasonable contest until October 13, 2015, we find that the WCJ did not err in
awarding attorney fees.
As to the amount of attorney fees awarded, quantum meruit fees are
based on the “complexity of the factual and legal issues involved” and the skills
17
required and actually expended. Ramich v. Workers’ Compensation Appeal Board
(Schatz Electric, Inc.), 770 A.2d 318, 322 (Pa. 2001) (quoting Section 440(b) of the
Act, 77 P.S. §996(b)). So long as the amount and difficulty of the work performed
by counsel is reasonably related to the fee, this Court will not disturb the award. City
of Philadelphia v. Workers’ Compensation Appeal Board (Andrews), 948 A.2d 221,
231 (Pa. Cmwlth. 2008). During her representation of Claimant for the period from
the date of injury through October 13, 2015, Attorney Levin defended against
Employer’s petitions, filed several petitions and attended hearings and depositions.
The WCJ’s award of a quantum meruit attorney fee of $4,000.00 for the hours spent
by Attorney Levin is reasonable and supported by the record.
Finally, we address Claimant’s request for counsel fees. Pennsylvania
Rule of Appellate Procedure 2744 permits an appellate court to award reasonable
counsel fees “if it determines that an appeal is frivolous … or that the conduct of the
participant against whom costs are to be imposed is dilatory, obdurate or vexatious.”
PA. R.A.P. 2744. A frivolous appeal is one that “has no justiciable question
presented, is recognizable as devoid of merit and has little prospect of success.”
Carson/Kent Joint Venture v. Workmen’s Compensation Appeal Board (Scafidi),
663 A.2d 828, 830 (Pa. Cmwlth. 1995).
Claimant argues that Employer’s appeal is frivolous because it asks this
Court to reassess the WCJ’s credibility determinations and reweigh the evidence.
We agree. Employer’s appeal to this Court consisted solely of a challenge to the
reasoning underlying the WCJ’s determinations of credibility and evidentiary
weight. As noted above, the WCJ has the sole discretion to assess credibility and to
resolve conflicts in the evidence. Bethenergy Mines, Inc., 612 A.2d at 437. For
these reasons, Claimant is entitled to reasonable attorney fees in accordance with
18
Rule 2744. See Newcomer Products v. Workers’ Compensation Appeal Board
(Irvin), 826 A.2d 69, 75 (Pa. Cmwlth. 2003) (a claimant was entitled to counsel fees
when his employer’s appeal “consisted of nothing more than an invitation [] to re-
assess the credibility of the witnesses and the weight to be accorded to the
evidence.”).
Accordingly, we affirm the Board’s order and award reasonable
counsel fees in accordance with PA. R.A.P. 2744 to Claimant. Claimant must file a
bill of costs indicating the attorney’s hourly rate and the total hours worked on the
appeal in this case.
_____________________________________
MARY HANNAH LEAVITT, President Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryn Mawr Landscaping Company, :
Petitioner :
:
v. : No. 1268 C.D. 2018
:
Workers’ Compensation Appeal Board :
(Cruz-Tenorio), :
Respondent :
ORDER
AND NOW, this 18th day of October, 2019, the order of the Workers’
Compensation Appeal Board dated August 28, 2018, in the above-captioned matter
is AFFIRMED, and liability for reasonable counsel fees is imposed on Bryn Mawr
Landscaping pursuant to PA. R.A.P. 2744. Claimant, Jonathan De Jesus Cruz-
Tenorio, must file an itemized bill of costs with this Court indicating the attorney’s
hourly rate and the total hours worked on the appeal in this case within 30 days of
this order.
_____________________________________
MARY HANNAH LEAVITT, President Judge