E. Jeantel v. Success America (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eddy Jeantel, :
Petitioner :
:
v. : No. 76 C.D. 2022
: Submitted: December 9, 2022
Success America (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: September 12, 2023
Eddy Jeantel (Claimant) petitions for review of the January 5, 2022 Order of
the Workers’ Compensation Appeal Board (Board) that, in relevant part, affirmed a
Workers’ Compensation Judge’s (WCJ) denial of Claimant’s request for penalties
against Success America (Employer).1 Although the WCJ held, and the Board
affirmed, that Employer committed a technical violation of the Workers’
Compensation Act2 (Act), the Board found no abuse of discretion in the WCJ’s
denial of penalties under the circumstances in this case. On appeal, Claimant argues
the failure to impose penalties harms the workers’ compensation (WC) system and
defeats the Act’s intention of ensuring employer compliance through the imposition
1
The WCJ also denied Claimant’s claim petition, but Claimant did not appeal that denial
to the Board, and, therefore, it is not at issue in this appeal.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
of penalties and, therefore, was an abuse of discretion. Upon thorough review, we
affirm.
I. BACKGROUND
Claimant, while driving a bus for Employer, sustained work-related injuries
on August 1, 2019, when he became “involved in a physical altercation with an
unruly student.” (WCJ Decision at 1.) Employer issued a medical-only notice of
temporary compensation payable on August 15, 2019, which converted by law into
a medical-only notice of compensation payable. (WCJ Decision, Finding of Fact
(FOF) ¶ 1.) When Claimant reported his injuries to Employer’s owner (Owner),
Owner did not provide Claimant with a list of Employer’s panel physicians or
indicate that Claimant had a choice of panel physicians, but made an appointment
for Claimant to be seen by a particular panel provider, WorkNet. (Id. ¶¶ 6d & n.1,
6i, 6j, 19g, 19m, 19n.) Claimant obtained treatment from WorkNet from August 2,
2019, through October 2, 2019. (Id. ¶ 3b, 3d.) On September 20, 2019, the
physicians at WorkNet ordered an electromyogram (EMG), but Claimant indicated
at his October 2, 2019 appointment that he did not feel the study was needed, given
the significant improvement in his symptoms in his legs. (Id. ¶ 14k, 14l.)
Claimant’s WorkNet records reflect he subsequently requested an EMG on
November 22, 2019, after his WC claim had been closed, and that, per Owner,
Claimant was “not to be seen until [Employer got the] OK from work comp
insurance.” (Id. ¶ 14m.) In an email exchange between Owner and a WC insurance
adjuster (Adjuster) dated November 22, 2019, Owner asked Adjuster how to proceed
with Claimant’s EMG request. (Ex. C-1 at 3, Reproduced Record (R.R.) at 37a.)
Adjuster responded that Claimant’s “claim has already been closed and since he was
released from care 10/2/2019, [Adjuster] really d[id]n’t think [the WC Insurer] will
2
reopen it again,” and Owner replied “[t]hat’s fine with [him]. [He’s] not going to
say anything to [Claimant]. WorkNet won’t do anything without [Owner’s] okay.”
(Ex. C-1 at 2, R.R. at 36a.) Owner did not recall discussing Claimant’s leg pain or
the November 2019 EMG request with WorkNet directly and explained his email
meant it was up to Employer’s WC insurer to determine whether to pay for the study.
(FOF ¶ 19n, 19o.) Owner did recall that an EMG had been recommended prior to
Claimant’s discharge from treatment, but that Claimant would not undergo the
study.3 (Id. ¶ 19n.) Owner denied having a “special relationship” with WorkNet or
trying to control WorkNet’s treatment of Claimant. (Id. ¶ 19m.)
Claimant continued to have low back pain, and he sought treatment from his
own providers. (Id. ¶¶ 6f-g, 7.) Those providers indicated Claimant was disabled
from his pre-injury position from August 1, 2019, through March 15, 2020. (Id.
¶ 10.) One of these providers, Ghassem Kalani, M.D., performed an EMG on
Claimant’s lower extremities on February 4, 2020. (Id. ¶ 9j.) Claimant submitted
those medical records and bills to the WCJ. (Id. ¶¶ 8-9.)
During a hearing on a claim petition filed by Claimant, which was ultimately
denied, Claimant sought the imposition of penalties due to Employer’s failure to
provide him a list of panel physicians at the time of injury as required by the Act.
(Id. ¶ 6d n.1; Hr’g Tr., Jan. 1, 2021 (Jan. 2021 Hr’g Tr.), at 18, 35-36, Certified
Record (C.R.) Item 15.) Employer acknowledged nothing in the record showed that
Claimant signed anything indicating that he received notice of Employer’s panel
physicians or his rights under the Act. (Jan. 2021 Hr’g Tr. at 19.) Claimant also
3
Claimant last worked for Employer on January 8, 2020. Claimant did not report to work
as scheduled on January 9 and 10, 2020, at which time Employer considered him “no call/no
show,” and he was removed from the schedule. (FOF ¶ 19i, 19j.)
3
asserted Employer conspired with its insurer to deny the November EMG request in
violation of the Act. (FOF ¶ 22h.)
The WCJ made the following findings regarding Claimant’s request for
penalties:
g. This [WCJ] finds the unrebutted testimony of [Owner] to be credible
that [] Employer provided [] Claimant with written notice of his rights
and duties at the time of hire and posted a panel provider list. However,
[] Employer engaged in a technical violation of Bureau [of Workers’
Compensation (Bureau)] Regulation 127.75[5, 34 Pa. Code § 127.755,]
by failing to provide [] Claimant with written notice of his rights and
duties immediately after the work injury. Nonetheless, this [WCJ] finds
that said violation does not warrant an award of penalties, since []
Employer referred [] Claimant to a provider on the panel list; there was
no evidence of record that [] Claimant’s treatment was delayed or
denied; [] Claimant chose to also treat with his own providers after the
work incident; and [] Employer’s failure to provide the appropriate
notice to [] Claimant necessarily relieves [] Claimant of his duties
specified in the notice, and [] Employer remains liable for all treatment
rendered to [] Claimant due to its failure to provide said written notice.
h. [] Claimant alleges that [] Employer engaged in a conspiracy to deny
diagnostic studies to [] Claimant, studies which were recommended by
WorkNet, in violation of the . . . Act. In this regard, this [WCJ] finds
that she does not have jurisdiction over matters of alleged insurance
fraud, criminal matters or other alleged malfeasance. That being said,
this [WCJ] notes that [] Claimant did not provide any testimony
regarding an alleged inability to obtain medical care after the work
incident. Additionally, the WorkNet medical records support
admissions by [] Claimant that he did not attempt to schedule an EMG
in September 2019 as requested by WorkNet, ostensibly due to contact
being made by the medical facility during work hours, and then by
October 2, 2019, [] Claimant no longer desired said testing and did not
continue to have leg complaints. [] Claimant provided no testimony
concerning a request for EMG testing in November 2019[,] and
subsequently treated with Dr. Kalani in January 2020[,] who did not
recommend the testing until February 2020, which [] Claimant did
undergo at that time.4 Dr. Kalani provided no representations that the
results of the EMG testing were related to the August 1, 2019 work
4
incident. Based on the foregoing, this [WCJ] finds no violation of the
. . . Act.
FN4 [] Claimant has not alleged that [] Employer has failed
and/or refused to pay for [] Claimant’s causally[-]related
and reasonable and necessary medical treatment related to
the August 1, 2019 work incident.
(FOF ¶ 22g, 22h.) In making these findings, the WCJ credited Owner’s testimony
that he did not determine what treatment WorkNet provided and did not interfere in
that patient/physician relationship. (Id. ¶¶ 19m, 19n, 19o, 22f.) For these reasons,
the WCJ denied Claimant’s request for penalties, but ordered Employer to “continue
to assume responsibility for all medical bills incurred to evaluate and treat []
Claimant’s August 1, 2019 work injuries . . . through and including March 14, 2020.”
(WCJ Decision, Order.)
Claimant appealed to the Board, arguing the WCJ committed an error of law
and abused her discretion by not imposing substantial penalties. (Claimant’s Appeal
at 1, R.R. at 13a.) According to Claimant, Owner’s admitted “special relationship”
with WorkNet, in which WorkNet would not do anything without Owner’s approval,
was a “pollution of the system” that “is unacceptable and worthy of the severest of
penalties.” (Id.) On its review, the Board affirmed the WCJ’s Decision, finding no
error or abuse of discretion in not imposing penalties. Claimant now petitions this
Court for review.4
4
This Court’s scope of review “is limited to determining whether necessary findings of
fact are supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated.” Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936
A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
5
II. PARTIES’ ARGUMENTS
Claimant argues the WCJ abused her discretion in not imposing penalties
because Employer’s violation of the Act was not a technical one, but “a gross
violation warranting the severest of penalties.” (Claimant’s Br. at 7.) Claimant
acknowledges that the award of penalties is the subject of the WCJ’s discretion;
however, such “discretion is not without bounds.” (Id. at 8.) In this matter, Claimant
contends, Employer’s violation of the Act by failing to give him a list of panel
physicians was “enhanced by [] [E]mployer’s mandating by whom [C]laimant shall
be treated,” which was a provider that would not “do anything without [Owner’s]
okay.” (Id. at 9 (quoting R.R. at 36a).) That he may not have been “harm[ed]” is
not the point, Claimant asserts, because the greater injury is the Board’s “ignoring
the chief purpose behind [Section 435 of the Act,] 77 P.S. § 991[,5] which is to
obviate bad conduct on the part of employers and their carriers.” (Id. at 10.)
Employer responds the violation here, its failure to provide Claimant notice
at the time of injury of the available panel providers from which Claimant could
choose, was a technical violation that did not warrant the imposition of a penalty.
(Employer’s Br. at 8.) Contrary to Claimant’s arguments, Employer maintains, the
WCJ offered “objective and appropriate reasons” to support the decision not to
impose penalties, including the lack of testimony that Claimant was unable to obtain
care or testing at any time, which does not reflect harm on the WC system. (Id. at
9.) Employer asserts the record does not contain evidence of bias or ill that would
support a finding of an abuse of discretion and, therefore, the Board’s Order should
be affirmed. (Id.)
5
Section 435 was added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended.
6
III. DISCUSSION
At issue in this matter is the denial of Claimant’s request for penalties based
on Employer’s violation of the Act. Section 435(d)(i) addresses the imposition of
penalties and states:
The [D]epartment [of Labor and Industry], the [B]oard, or any court
which may hear any proceedings brought under this [A]ct shall have
the power to impose penalties as provided herein for violations of the
provisions of this [A]ct or such rules and regulations or rules of
procedure:
(i) Employers and insurers may be penalized a sum not
exceeding ten per centum of the amount awarded and
interest accrued and payable: Provided, however, That
such penalty may be increased to fifty per centum in cases
of unreasonable or excessive delays. Such penalty shall
be payable to the same persons to whom the compensation
is payable.
77 P.S. § 991(d)(i) (emphasis added).
The burden of proving a violation of the Act or regulations is on the claimant.
Shuster v. Workers’ Comp. Appeal Bd. (Pa. Hum. Rels. Comm’n), 745 A.2d 1282,
1288 (Pa. Cmwlth. 2000). Penalties may be imposed “to assure compliance with the
Act.” Allegis Gr. & Broadspire v. Workers’ Comp. Appeal Bd. (Coughenaur), 7
A.3d 325, 328 (Pa. Cmwlth. 2010). However, even where a violation is apparent on
the record, “the imposition of a penalty is at the discretion of the WCJ and is not
required.” Candito v. Workers’ Comp. Appeal Bd. (City of Philadelphia), 785 A.2d
1106, 1108 (Pa. Cmwlth. 2001). “Because the assessment of penalties, as well as
the amount of penalties imposed is discretionary, we will not overturn a [decision
on a penalty] absent an abuse of discretion by the WCJ.” Id. “[A]n abuse of
discretion occurs where the WC[J]’s judgment is manifestly unreasonable, where
7
the law is not applied[,] or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.” Allegheny Power Serv. Corp. v. Workers’
Comp. Appeal Bd. (Cockroft), 954 A.2d 692, 698 n.8 (Pa. Cmwlth. 2008).
Section 306(f.1)(1)(i) of the Act sets forth employers’ obligations to pay for
reasonable medical services and to give notice to claimants of their rights under the
Act. That section states, in pertinent part:
The employer shall provide payment in accordance with this section for
reasonable . . . medical services, services rendered by physicians or
other health care providers. . . , as and when needed. Provided an
employer establishes a list of at least six designated health care
providers, no more than four of whom may be a coordinated care
organization and no fewer than three of whom shall be physicians, the
employe shall be required to visit one of the physicians or other
health care providers so designated and shall continue to visit the
same or another designated physician or health care provider for a
period of ninety (90) days from the date of the first visit: Provided,
however, That the employer shall not include on the list a physician or
other health care provider who is employed, owned or controlled by the
employer or the employer’s insurer unless employment, ownership or
control is disclosed on the list. . . . . It shall be the duty of the
employer to provide a clearly written notification of the employe’s
rights and duties under this section to the employe. The employer
shall further ensure that the employe has been informed and that he
understands these rights and duties. This duty shall be evidenced only
by the employe’s written acknowledgment of having been informed
and having understood his rights and duties. Any failure of the
employer to provide and evidence such notification shall relieve the
employe from any notification duty owed, notwithstanding any
provision of this act to the contrary, and the employer shall remain
liable for all rendered treatment.
77 P.S. § 531(1)(i) (emphasis added). Section 127.755(c) of the regulations similarly
requires that “written notice . . . of the employee’s rights and duties . . . shall be
provided at the time the employee is hired and immediately after the injury, or as
8
soon thereafter as possible under the circumstances of the injury.” 34 Pa. Code
§ 127.755(c).
Reading these provisions together, employers are required “to provide written
notification and acknowledgment of employee’s rights and duties at two separate
times,” when hired and when the employee is injured. Pa. Dep’t of Corr./State Corr.
Inst. Somerset v. Workers’ Comp. Appeal Bd. (Kirchner), 805 A.2d 633, 635 (Pa.
Cmwlth. 2002). If an employer has a list of designated panel providers, that list is
to be provided to the claimant as well. 34 Pa. Code § 127.755(a), (d). If such notice
is not provided to the employee at the time of the injury, “the employee is relieved
of his duty to use the panel physician,” and the employer “‘remains liable for all
treatment rendered to the employee.” Kirchner, 805 A.2d at 636 (quoting 34 Pa.
Code § 127.255(d)).
Here, it is undisputed that Owner did not provide Claimant with a list of panel
physicians or notice of his rights, as required by the Act, but made an appointment
for Claimant with WorkNet, which was one of the providers on the panel list. This,
as the WCJ found and the Board affirmed, was a violation of the Act and Section
127.755 of the regulations. However, this does not mean that the imposition of a
penalty was required. Candito, 785 A.2d at 1108. The effect of Employer’s failure
to provide the requisite notice was that it was liable for all of the medical treatment
received for the work injury, which is the relief the WCJ granted. Such relief is
consistent with Section 306(f.1)(1)(i) and the regulations. Further, as the WCJ
explained, Claimant did not testify that he was unable to obtain treatment or care
after the work injury and, in fact, sought and obtained treatment from his own
providers, for which Employer was liable. (FOF ¶ 22g.) Under these circumstances,
we discern no evidence of ill will or bias in the WCJ not imposing penalties for this
9
technical violation of the Act, as she gave objective reasons for her decision, and,
therefore, there was no abuse of discretion in not imposing penalties.
Claimant also asserts penalties should have been imposed because Employer,
through Owner, interfered with Claimant’s medical treatment by conspiring with
Employer’s WC insurer to deny Claimant requests for diagnostic testing. However,
the WCJ did not find a violation of the Act based on this alleged conduct, and the
Board affirmed. The Board held
the evidence found credible by the WCJ does not support the contention
that [Employer] somehow interfered with Claimant’s ability to obtain
an EMG, which appears to be the gist of the claim. [The WCJ] accepted
[Owner’s] testimony and he indicated that [Employer] does not
determine what WorkNet does and that he did not interfere in any
patient/physician relationship. Claimant offered no testimony that he
was denied work-related [injury] care. While penalties may be assessed
where the employer fails to pay compensation when due, Varkey v.
[Workers’ Compensation Appeal Board] (Cardone Indus.), 827 A.2d
1267 (Pa. Cmwlth. 2003), Claimant did not establish a violation in this
respect.
(Board Opinion at 7-8.) We agree with the Board’s rationale. Issues of credibility
are solely for the WCJ as finder of fact, IDI Logistics, Inc. v. Clayton (Workers’
Comp. Appeal Bd.), 284 A.3d 248, 254 n.1 (Pa. Cmwlth. 2022), and, in this case, the
WCJ credited Owner’s testimony that he did not interfere with WorkNet’s treatment
of Claimant. Although Claimant introduced evidence he believed established
otherwise, the WCJ, acting within her authority as factfinder, gave more weight to
Owner’s testimony. In addition to crediting Owner’s testimony, the WCJ found no
violation of the Act because: Claimant did not present evidence that he was unable
to obtain treatment or his treatment was delayed; it was Claimant who did not
schedule the initial EMG because he no longer had leg complaints and did not desire
to have the study performed; Claimant did not testify about requesting an EMG in
10
November 2019; and an EMG was subsequently performed in February 2020,
although Dr. Kalani did not specifically relate the study to the August 2019 work
injury. (FOF ¶ 22h.) Because Claimant did not establish a violation of the Act on
this basis, as was his burden, Shuster, 745 A.2d at 1288, there was no abuse of
discretion in not imposing penalties.
IV. CONCLUSION
For the foregoing reasons, the Board did not err in upholding the WCJ’s
Decision denying Claimant’s request for penalties. Accordingly, we affirm the
Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eddy Jeantel, :
Petitioner :
:
v. : No. 76 C.D. 2022
:
Success America (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
NOW, September 12, 2023, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge