J. Torres v. WCAB (Sweet Street Desserts, Inc.) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jose Torres, :
:
Petitioner :
:
v. : No. 1500 C.D. 2019
: Submitted: February 21, 2020
Workers’ Compensation Appeal :
Board (Sweet Street Desserts, Inc.) :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 11, 2021
Jose Torres (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the decision of a
workers’ compensation judge (WCJ) denying and dismissing Claimant’s Claim
Petition and Reinstatement Petition filed against Sweet Street Desserts, Inc.
(Employer), and granting Employer’s Termination Petition, pursuant to the
provisions of the Workers’ Compensation Act (Act).2 We affirm.
1
The decision in this case was reached before January 4, 2021, when President Judge
Leavitt served as President Judge.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
On August 20, 2014, Claimant sustained a right knee injury in the
course and scope of his employment as a laborer for Employer when a skid hit his
knee. On September 2, 2014, Employer issued a Notice of Temporary
Compensation Payable (NTCP), which described the injury as a right knee bruise,
and began paying weekly compensation benefits of $466.00 based on an average
weekly wage of $556.10. Reproduced Record (R.R.) at 1a. On October 13, 2014,
Employer issued a Notice Stopping Temporary Compensation (NSTC), ending the
payment of compensation benefits. Id. at 5a-6a. That same day, Employer issued
a Notice of Workers’ Compensation Denial (NCD), which stated that: Claimant
returned to work on October 6, 2014, and resumed full duty on October 13, 2014;
the “[e]xtent of further disability [is] being contested”; and “[a]ll causally related
and necessary medical expenses will continue to be covered under this claim and
are hereby subject to all provisions outlined specifically in the [Act].” Id. at 3a.
On July 13, 2017, Claimant filed a Claim Petition in which he alleged
that he sustained a work-related disabling right knee crush injury, sought
temporary total disability (TTD) benefits from July 7, 2017, and ongoing, and
reimbursement for related medical expenses, litigation fees, and unreasonable
contest attorney’s fees. R.R. at 7a-10a, 13a. That same day, Claimant filed a
Reinstatement Petition, seeking the reinstatement of disability benefits effective
July 7, 2017, due to a worsening of his work-related condition, and the payment of
unreasonable contest attorney’s fees. Id. at 13a. On October 20, 2017, Employer
filed a Termination Petition, alleging that Claimant had fully recovered from his
work-related injury as of September 27, 2017. Id.
2
On August 9, 2018, the WCJ issued a decision disposing of the
petitions in which he made the following relevant findings of fact based upon the
testimony and evidence that was presented:
18. As noted at the outset, Claimant’s reinstatement
petition should be dismissed, because disability was
properly denied, so that Claimant carries a claim burden
of proof.
19. I do not find that Claimant’s August 20, 2014
work-related injury caused him to suffer disability
beginning on July 7th or 10th of 2017. Because
Employer’s October 2014 denial agreed that Claimant
suffered a right knee contusion that did not cause
disability, but only medical expenses, and it prevailed on
those contentions, Claimant has not proven a
compensable injury.
20. I find that Claimant was recovered from his right
knee contusion on or after October 13, 2014, that he did
not suffer any earnings loss due to it thereafter, that his
treatment beginning on September 2, 2016, and thereafter
was not due to his August 20, 2014 injury, and that he
was fully recovered no later than [Employer’s doctor’s]
September 27, 2017 evaluation.
***
22. Claimant and counsel entered into a 20%
contingent fee agreement that I find fair and reasonable,
but no fee is due, as no award is made.
23. Claimant’s counsel offered [a] litigation costs
exhibit totaling $5,310.64 that I find reasonable, but not
recoverable because Claimant did not partially prevail.
Employer conceded a non-disabling right knee contusion,
and it fully prevailed on that contention.
24. Employer presented a reasonable contest because it
prevailed on all petitions.
3
R.R. at 23a.
Based on the foregoing, the WCJ concluded, in pertinent part: (1)
Claimant did not meet his burden of proving that his August 20, 2014 work-related
injury caused disability and a loss of earnings on or after July 2017; (2) Claimant’s
Reinstatement Petition should be dismissed as moot because there is no basis to
reinstate compensation benefits “for an injury that had not been acknowledged as
disabling”; (3) Employer “met the burden of proving that Claimant’s medical
treatment from and after September 2, 2016, and loss of earnings from and after
July 7, 2017, were not related to his August 20, 2014 work-related injury and that
he was fully recovered from it no later than September 27, 2017”; (4) Claimant and
his counsel executed “a valid fee agreement”; (5) “Claimant’s counsel incurred
reasonable, but not recoverable litigation costs”; and (6) “Employer presented a
reasonable contest.” R.R. at 24a. Accordingly, the WCJ issued an order denying
and dismissing Claimant’s Claim Petition and Reinstatement Petition, granting
Employer’s Termination Petition effective September 27, 2017, and directing that
“Employer is not responsible for Claimant’s medical expenses incurred on or after
September 2, 2016.” Id. at 25a.
Claimant appealed the WCJ’s decision to the Board, arguing that the
WCJ erred in failing to award litigation costs. The Board rejected this claim,
stating in relevant part:
Claimant alleges that he was entitled to litigation costs
because he succeeded in part in the litigation. Claimant
argues that the WCJ found that [he] sustained a work
injury in the nature of a right knee contusion, noting that
such a finding was a matter at issue in the litigation for
which he was successful given [Employer’s] denial of the
claim. However, [Employer] actually acknowledged that
Claimant sustained a work-related right knee bruise via
4
[the] NTCP. While [Employer] subsequently issued an
NCD, the NCD specifically provided that [Employer]
was denying further liability due to Claimant’s return to
work, but that Claimant’s reasonable and necessary
medical expenses for the knee contusion would continue
to be reimbursed by [Employer]. [We note that the NCD
appears to be more properly construed as a medical[-
]only Notice of Compensation Payable (NCP), where
[Employer] has acknowledged that Claimant sustained a
work injury and accepted liability for medical expenses,
but controverted work-related disability.] Therefore, for
all practical purposes, [Employer] accepted liability for
Claimant’s knee contusion, but denied related disability
after Claimant returned to work in October 2014.
Consequently, the matters at issue in the Claim Petition
did not include whether Claimant sustained a work injury
in the nature of a knee contusion, as [Employer] had
admitted such. Rather, the matters at issue in the instant
Claim Petition were whether Claimant sustained a “knee
crush injury,” as alleged in his Claim Petition, and
whether this alleged injury resulted in disability
beginning in July 2017, and continuing. The WCJ found
in favor of [Employer] on these matters and further
granted [Employer’s] Termination Petition. Therefore,
Claimant did not prevail on any contested matters, nor
did he receive any financial gain from instituting the
litigation proceedings. . . . Claimant conceded that
[Employer] paid him a period of disability from the date
he sustained his knee contusion to the date he returned to
work in October 2014. Moreover, the NCD
acknowledged that medical expenses would be paid, and
Claimant never alleged any unpaid medical benefits due
to his knee contusion. Consequently, by filing the Claim
Petition, Claimant did not receive any additional benefits
which [Employer] had not already paid or agreed to pay
via the NTCP and NCD.
5
R.R. at 31a-32a. Accordingly, the Board issued an order affirming the WCJ’s
decision, id. at 33a, and Claimant filed the instant petition for review of the
Board’s order.3
On appeal, Claimant contends that the Board erred in affirming the
WCJ’s decision denying the award of litigation costs.4 Specifically, Claimant
asserts that Employer improperly used an NTCP and NCD to accept his claim on a
3
Our scope of review in a workers’ compensation appeal is limited to determining
whether an error of law was committed, whether constitutional rights were violated, or whether
necessary findings of fact are supported by substantial evidence. Bloom v. Workmen’s
Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1318 n.4 (Pa. Cmwlth.
1996). Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal
Board (Skirpan), 612 A.2d 434, 436 (Pa. 1992). Credibility determinations and the evaluation of
the weight of evidence are within the province of the WCJ as a fact-finder, and the WCJ may
accept or reject the testimony of any witness, including medical testimony, in whole or in part.
Canavan v. Workers’ Compensation Appeal Board (B & D Mining Co.), 769 A.2d 1250, 1252
n.2 (Pa. Cmwlth. 2001) (citation omitted).
4
Section 440(a) of the Act, added by the Act of February 8, 1972, P.L. 25, as amended,
77 P.S. §996(a), authorizes an award to a claimant for “a reasonable sum for costs incurred for
attorney’s fees, witnesses, necessary medical examination, and the value of unreimbursed lost
time to attend the proceedings.” Such an award is appropriate where a “matter at issue has been
finally determined in whole or in part” in the claimant’s favor. Id. As this Court has observed:
Under Section 440 of the Act, a prevailing claimant is
entitled to recover litigation costs and an award of reasonable
attorney’s fees unless the record establishes that the employer had
a reasonable basis for contesting liability. A determination of
whether the employer’s contest was reasonable is a question of law
that depends upon the facts and the legal issues involved in each
case. A reasonable contest is established when the medical
evidence is conflicting or susceptible to contrary inferences and
there is an absence of evidence that an employer’s contest was
frivolous or intended to harass the claimant.
Byfield v. Workers’ Compensation Appeal Board (Philadelphia Housing Authority), 143 A.3d
1063, 1066-67 (Pa. Cmwlth. 2016) (citation omitted).
6
medical-only basis5 so that any averments in the instant NCD purportedly
accepting ongoing medical-only liability should be disregarded, and the NCD
should be considered to be an outright denial of any and all liability. When so
construed, Claimant argues that a litigation cost award is warranted based on the
WCJ’s recognition of the 2014 work-related right knee contusion injury.
However, Claimant’s construction of the documents that Employer
filed with respect to his work-related right knee contusion injury is untenable, as it
patently ignores the contents and effect of those documents.6 Undoubtedly,
Employer incorrectly filed an NCD in lieu of filing a medical-only NCP.
Nevertheless, by filing the NTCP, the NSTC, and the NCD upon Claimant’s return
to work, while acknowledging continuing medical liability for expenses related to
the accepted work-related right knee contusion injury, the Board correctly
determined that “for all practical purposes, [Employer] accepted liability for
Claimant’s knee contusion, but denied related disability after Claimant returned to
5
See Zuchelli v. Workers’ Compensation Appeal Board (Indiana University of
Pennsylvania), 35 A.3d 801, 806 n.4 (Pa. Cmwlth. 2011) (“Notably, in 2011, the Bureau of
Workers’ Compensation revised the NCD form. Employers are now instructed not to accept
medical[-]only cases by use of the NCD form. The form employers should use is the medical-
only NCP.”) (citation omitted). See also Employer’s NCD, R.R. at 3a (“Do not use this form to
accept a medical-only claim.”) (emphasis in original).
6
See, e.g., VNA Home Health Services of NE PA v. Workers’ Compensation Appeal
Board (Volpicelli) (Pa. Cmwlth., No. 211 C.D. 2014, filed September 11, 2014), slip op. at 13
(“Moreover, this Court has made clear that in workers’ compensation cases, where a party has
sought relief and demonstrated a right to relief, the form of the filing is not controlling and does
not prevent the WCJ from granting that relief.”) (citations omitted); Liberty Baking Co. v.
Workmen’s Compensation Appeal Board, 439 A.2d 1276, 1279 (Pa. Cmwlth. 1981) (“This Court
has consistently maintained that the rules governing pleadings in Workmen’s Compensation
cases do not mirror the Pennsylvania Rules of Civil Procedure, and that the pleadings in
compensation cases should be liberally construed.”) (citations omitted).
7
work in October 2014,” and “Claimant never alleged any unpaid medical benefits
due to his knee contusion.” R.R. at 32a.
As this Court has explained:
[The] employer incorrectly filed an NCD because when,
as here, an employer accepts liability for a claimant’s
injury but not for disability, i.e., [his] loss of earning
power, a medical-only NCP is required to be filed. That
. . . is in accord with our decision in Armstrong v.
Workers’ Compensation Appeal Board (Haines &
Kibblehouse, Inc.), 931 A.2d 827, 830-32 (Pa. Cmwlth.
2007). The purpose of the medical-only NCP is to fix the
nature of the injury and to keep the burden of proof on
the employer when it seeks to challenge the claimant’s
medical bills. Orenich v. Workers’ Compensation
Appeal Board (Geisinger Wyoming Valley Medical
Center), 863 A.2d 165, 169-70 (Pa. Cmwlth. 2004)[.]
We have also held that where an employer has filed an
NCD disputing the claimant’s disability but not the
existence of the actual injury, we have given the NCD
the same effect as a medical-only NCP. Armstrong, 931
A.2d at 832. Also, as explained in Orenich, where an
NCD or medical-only NCP is filed and the claimant
wishes to establish disability, [he] should do so by filing
a claim petition. Orenich, 863 A.2d at 170. . . .
Allied Personnel Services v. Workers’ Compensation Appeal Board (Rosario) (Pa.
Cmwlth., Nos. 1139 & 1168 C.D. 2013, filed March 7, 2014), slip op. at 11 n.5
(emphasis in original).7
The foregoing procedure is precisely what occurred in this case, and
the WCJ and the Board properly construed and considered the contents of the
documents actually filed in disposing of the relevant issues. Moreover, in
reviewing the WCJ’s and the Board’s disposition of this matter, it is clear that
7
This unpublished opinion is cited for its persuasive value in accordance with Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).
8
Claimant did not prevail in any manner in the proceedings below. Claimant did
not prevail in any manner on his Claim Petition seeking TTD benefits from July 7,
2017, and ongoing, and the reimbursement for related medical expenses, based on
a purportedly disabling work-related right knee crush injury. See R.R. at 22a-23a.
Likewise, Claimant did not prevail in any manner on his Reinstatement Petition
seeking disability benefits from July 7, 2017, and ongoing, based on that
purportedly disabling work-related injury. See id.As a result, the WCJ did not err or abuse his discretion in refusing to
award litigation costs under Section 440(a) of the Act, and the Board did not err in
affirming the WCJ’s decision in this regard. See, e.g., Watson v. Workers’
Compensation Appeal Board (Special People in Northeast), 949 A.2d 949, 955
(Pa. Cmwlth. 2008) (“[The c]laimant did not prevail on any disputed issue before
the WCJ. Stated otherwise, the WCJ awarded [the c]laimant no financial benefit
beyond the medical expenses [the e]mployer previously agreed to pay. Under
these circumstances, [the c]laimant’s entitlement to medical benefits does not
warrant an award of litigation costs.”).
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jose Torres, :
:
Petitioner :
:
v. : No. 1500 C.D. 2019
:
Workers’ Compensation Appeal :
Board (Sweet Street Desserts, Inc.) :
:
Respondent :
ORDER
AND NOW, this 11th day of January, 2021, the order of the Workers’
Compensation Appeal Board dated October 4, 2019, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge