K. Woodley v. Independence Blue Cross (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevisha Woodley, :
Petitioner :
:
v. :
:
Independence Blue Cross :
(Workers’ Compensation Appeal :
Board), : No. 5 C.D. 2021
Respondent : Submitted: June 25, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 27, 2021
Kevisha Woodley (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) December 8, 2020 order
affirming the Workers’ Compensation Judge’s (WCJ) decision that granted Claimant’s
Claim Petition, and directed Independence Blue Cross (Employer) to: pay Claimant
temporary total disability (TTD) benefits from May 3, 2018, and ongoing, with credit
for any WC benefits paid under the temporary notice of compensation payable (TNCP)
for any wages earned, and for disability benefits paid, with statutory interest on the net
amount payable; deduct 20% of such net TTD benefits and interest owed to Claimant
after deduction of credits, and pay that amount to Claimant’s counsel; reimburse
Claimant’s counsel’s costs of litigation in the amount of $3,830.00; and pay Claimant’s
medical expenses for treatment that is reasonable, necessary and related to the work
injury. There are three issues before this Court: (1) whether Claimant’s appeal should
be quashed for untimeliness; (2) whether Claimant’s request for nunc pro tunc relief
should be granted; and (3) whether the WCJ erred as a matter of law regarding the
proper calculation of the attorney fee deduction from the gross amount awarded, and
whether that amount may be reduced by the credit for health and accident benefits paid
by Employer in accordance with Ford Aerospace v. Workmen’s Compensation Appeal
Board (Davis), 478 A.2d 507 (Pa. Cmwlth. 1984). After review, this Court quashes
Claimant’s appeal.
On November 9, 2018, Employer issued a TNCP for an August 29, 2018
injury described as bilateral carpal tunnel syndrome. On November 12, 2018,
Employer issued a Notice Stopping Temporary Compensation as of November 8, 2018,
and a Notice of WC Denial (NCD). The NCD indicated that the claim was denied
because Claimant did not suffer a work-related injury.
On November 15, 2018, Claimant filed a pro se claim petition alleging
bilateral carpal tunnel syndrome, anxiety, and numbness in both feet, occurring on May
2, 2018, and seeking TTD benefits from May 3, 2018, and ongoing. On December 12,
2018, Claimant, through counsel, filed the Claim Petition alleging a cumulative stress
injury arising from overuse of both hands and wrists, diagnosed as of August 29, 2018.
Claimant alleged in the Claim Petition that she was totally disabled from May 2, 2018,
and ongoing.
On January 16, 2020, the WCJ granted the Claim Petition and ordered
Employer to pay Claimant $703.30 per week in TTD benefits from May 3, 2018, and
ongoing, with credits to Employer for Employer-funded disability benefits, benefits
paid under the TNCP, and any wages earned. The WCJ approved a 20% contingent
fee agreement. The WCJ further ordered that the 20% contingent fee be calculated
after deduction of the credit for Employer-funded disability benefits.
On January 31, 2020, the WCJ issued an amended decision changing
Claimant’s benefit rate to $512.50 per week based on an average weekly wage of
$703.30, but reaffirming the January 16, 2020 decision in all other respects. Claimant
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appealed to the Board from the manner of the contingent fee calculation only. On
December 8, 2020, the Board affirmed the WCJ’s decision. Claimant appealed to this
Court on January 11, 2021.
By March 30, 2021 Order, this Court directed the parties to address, in
their principal briefs on the merits or in an appropriate motion, whether the appeal is
untimely. On May 11, 2021, Employer filed a Motion to Quash. By June 21, 2021
Order, this Court directed:
[I]t appearing that [Claimant] attached to her brief a separate
request that this Court consider her appeal nunc pro tunc,
alleging that her Petition for Review [(PFR)] was mailed on
January 4, 2021, as evidenced by the private postal mark on
the envelope containing the same, but did not arrive in a
timely manner due to significant mail delays caused by
United States Postal Service budget cuts, especially in the
Philadelphia area, [Employer’s] Motion [to Quash] and
[Claimant’s] request shall be listed with the merits of the
appeal.
June 21, 2021 Order.
Initially, Pennsylvania Rule of Appellate Procedure (Rule) 1512(a)
requires “a [PFR] . . . shall be filed with the prothonotary of the appellate court within
30 days after the entry of the order.” Pa.R.A.P. 1512(a). Because the Board’s order
was entered on December 8, 2020, Claimant’s PFR was due by January 7, 2021.
Claimant’s PFR was received on January 11, 2021.
Rule 1514(a) provides, in relevant part:
Filing with the prothonotary.--The [PFR], with proof of the
service that is required by paragraph (c) of this [R]ule
[(relating to service on necessary government parties)], shall
be filed with the prothonotary of the appellate court in person
or by first class, express, or priority United States Postal
Service mail.
If the [PFR] is filed by first class, express, or priority United
States Postal Service mail, the [PFR] shall be deemed
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received by the prothonotary for the purposes of [Rule]
121(a) [(relating to filing with the prothonotary)] on the date
deposited in the United States mail, as shown on a United
States Postal Service Form 3817 [(Form 3817)],
Certificate of Mailing, or other similar United States
Postal Service form from which the date of deposit can be
verified. The certificate of mailing or other similar Postal
Service form from which the date of deposit can be verified
shall be cancelled by the Postal Service and shall show the
docket number of the matter in the government unit, and shall
be either enclosed with the petition or separately mailed to
the prothonotary.
Pa.R.A.P. 1514(a) (text emphasis added).
This Court has explained:
Rule 1514 has two critical requirements for using Form
3817s. First, the [F]orm [3817] must identify the case to
which it pertains. [See] Pa. R.A.P. 1514(a). Second, the
party must include the [F]orm [3817] in the mailing, or mail
it separately to the prothonotary. [See i]d. The clear import
of these requirements is that they enable the prothonotary to
view the case docket number and the United States Postal
Service postmark on the Form 3817 and to immediately
determine whether a filing is timely.
Mills v. Workers’ Comp. Appeal Bd. (Sch. Dist. of Harrisburg), 24 A.3d 1094, 1096
(Pa. Cmwlth. 2011).
Here, Claimant mailed her PFR envelope separately to the Prothonotary,
as proof that her appeal was timely filed. Claimant’s PFR envelope contains a private
postmark with a date of January 4, 2021.1 However, the PFR envelope does not include
the identity of the case to which it pertains. The PFR envelope “only show[s] that
Claimant’s counsel mailed something to this Court in the days before the [PFR] was
due, not that Claimant timely mailed the [PFR] in this case.” Temple E., Inc. v.
Workers’ Comp. Appeal Bd. (Perri) (Pa. Cmwlth. Nos. 286, 463 C.D. 2018, filed Dec.
1
A private postmark is not the equivalent of a United States Postal Service postmark and
cannot establish the mailing date. See Lin v. Unemployment Comp. Bd. of Rev., 735 A.2d 697 (Pa.
1999); Sellers v. Workers’ Comp. Appeal Bd. (HMT Const. Servs., Inc.), 713 A.2d 87 (Pa. 1998).
4
20, 2018), slip op. at 12.2 “[Rule] 1514(a), which permits a [PFR] to take the date of
mailing rather than the date of receipt when the petitioner also submits a time-stamped
[United States Postal Service] certificate of mailing form, requires that the petitioner
indicate the agency docket number on the form.” Id., slip op. at 12 n.7. Because
Claimant did not submit a “Form 3817, Certificate of Mailing, or other similar United
States Postal Service form from which the date of deposit can be verified,” the date of
her appeal is the date which it was received by the Commonwealth Court’s
Prothonotary, as indicated by this Court’s January 11, 2021 timestamp. Pa.R.A.P.
1514(a). Accordingly, Claimant’s appeal was untimely filed.
Notwithstanding, Claimant requests that this Court consider her appeal
nunc pro tunc, alleging that Claimant’s counsel mailed her PFR on January 4, 2021,
but it did not arrive until January 11, 2021, three days after the expiration date for filing
the appeal, due to significant mail delays caused by United States Postal Service budget
cuts, especially in the Philadelphia area.
The Pennsylvania Supreme Court has clarified that, to permit an appeal
nunc pro tunc, an appellant must prove: “(1) the appellant’s notice of appeal was filed
late as a result of non-negligent circumstances, either as they relate to the appellant or
the appellant’s counsel; (2) the appellant filed the notice of appeal shortly after the
expiration date; and (3) the appellee was not prejudiced by the delay.” Criss v. Wise,
781 A.2d 1156, 1159 (Pa. 2001). Our Supreme Court further ruled that, “as delays in
the U[nited] S[tates] mail are both foreseeable and avoidable, [a claimant’s] failure to
anticipate a potential delay in the mail [is] not such a non-negligent circumstance for
2
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited for
its persuasive value, but not as binding precedent. Temple East, Inc. is cited herein for its persuasive
value.
5
which an appeal nunc pro tunc may be granted.” Id. at 1160. Accordingly, because
mailing delays are not non-negligent circumstances, Claimant failed to establish a basis
for nunc pro tunc relief.
For all of the above reasons, Claimant’s appeal is quashed.
_________________________________
ANNE E. COVEY, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevisha Woodley, :
Petitioner :
:
v. :
:
Independence Blue Cross :
(Workers’ Compensation Appeal :
Board), : No. 5 C.D. 2021
Respondent :
ORDER
AND NOW, this 27th day of July, 2021, Independence Blue Cross’s
Motion to Quash is GRANTED, and Kevisha Woodley’s (Petitioner) Request for
Nunc Pro Tunc Relief is DENIED. Petitioner’s appeal from the Workers’
Compensation Appeal Board’s December 8, 2020 order is quashed.
_________________________________
ANNE E. COVEY, Judge