A. Jacob v. WCAB (Cardone Industries, Inc. and Phoenix Ins. Co.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Annamma Jacob, :
Petitioner :
: No. 747 C.D. 2016
v. :
: Submitted: December 9, 2016
Workers’ Compensation Appeal :
Board (Cardone Industries, Inc. and :
Phoenix Insurance Company), :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 21, 2017
Annamma Jacob (Claimant) petitions for review of the April 20, 2016,
order of the Workers’ Compensation Appeal Board (Board) affirming as modified the
decision of the Workers’ Compensation Judge (WCJ) granting the penalties petition
against Cardone Industries, Inc., and Phoenix Insurance Company (collectively,
Employer).
Facts and Procedural History
Claimant filed a claim petition alleging injury on September 5, 2003, to
her head, neck, shoulder, left upper extremity, and left lower extremity at work when
she walked past a drill press, which entangled her long hair. (WCJ’s 3/21/06 decision
at pages 1-2.) A co-worker promptly stopped the machine, thus freeing the portion
of Claimant’s hair from the machine undamaged. Employer’s nurse took Claimant to
its own clinic and later a chaplain employed by Employer took Claimant to a hospital,
which treated her for a cervical strain and released her to light-duty work. (Id.,
WCJ’s Findings of Fact Nos. 4-8.)
Claimant testified that she had severe pain that evening but did not seek
additional treatment until September 9, 2003, when she saw a physician at
Employer’s clinic, Lawrence Axelrod, M.D., who prescribed physical therapy and
prescription medications. Claimant was dissatisfied with her treatment and consulted
her union, which referred her to a Dr. Barnett, whom she saw on September 15, 2003.
Dr. Barnett released Claimant to return to work at the modified duties and discharged
her to the care of Employer’s clinic doctor. Nonetheless, Claimant did not report to
work at the modified job until September 26, 2003. (Id., Nos. 10-11, 13.)
Claimant offered deposition testimony from Sanjay Gupta, M.D., a pain
management specialist who conceded he never took Claimant off work at Employer.
(Id., Nos. 19-20.)
Employer deposed Dr. Axelrod, who approved the light-duty work but
believed she was unfit for such work because of non-work-related hypertension. (Id.,
Nos. 12-18.)
Employer also adduced deposition testimony from Howard Levin, M.D.,
who examined Claimant twice on behalf of Employer. Dr. Levin diagnosed a
cervical strain but found her not disabled from performing the duties of her pre-injury
job. (Id., Nos. 21-24.)
After extensive hearings and depositions, the WCJ found Employer’s
examining physician, Dr. Levin, more credible than Claimant’s treating doctors, but
found for the Claimant, finding she had sustained a “cervical strain injury.” (Id.,
Findings of Fact Nos. 22, 36.) The WCJ suspended benefits from September 6, 2003,
2
through September 24, 2003, then awarded partial benefits from September 25, 2003,
through October 22, 2003, with benefits suspended effective October 23, 2003, and
benefits terminated as of March 18, 2004. (Id., Findings of Fact Nos. 37-40 and
Order.)
Claimant appealed and in a May 30, 2007, opinion, the Board remanded
“for a determination of whether Defendant offered Claimant employment within her
restrictions prior to September 25, 2003, and for the WCJ to make any related and
necessary findings of fact and conclusions of law,” but affirmed in all other respects.
On June 30, 2008, the WCJ found that Employer had not offered
“sufficient evidence” regarding any suitable work, and awarded Claimant total
disability benefits for the period from September 6, 2003, through September 24,
2003. (WCJ’s 6/30/08 Decision, Finding of Fact No. 3; Order.)
In November of 2008, Claimant filed a penalty petition, alleging
untimely payment of the wage loss benefits and failure to pay “proper interest” on the
back-due benefits. She sought a penalty of 50 percent. Employer filed an answer
denying all material allegations of Claimant’s petition.
The case was assigned to the WCJ, who held nine hearings in these
proceedings (in addition to countless hearings in related litigation with the same
parties), along with extensive deposition testimony and evidence submitted in excess
of hundreds of pages. In the course of these hearings, the WCJ allowed Claimant
extensive cross-examination of two defense witnesses, Douglas Fadden and Steven
Fireoved. Claimant wanted additional cross-examination of Mr. Fadden and new
cross-examination of a claims adjuster of the Employer. However, Employer sought
a protective order, which was granted by order of the WCJ dated October 13, 2009.
3
In a related proceeding involving the same parties, the WCJ circulated a
decision on December 2, 2009, denying Claimant’s motion for recusal. That decision
is relevant as it addressed similar issues and concerns, and was raised by Claimant in
the present appeal (Claimant’s brief at 9) and was responded to by Employer
(Employer’s brief at 17-18). Among the WCJ’s findings of fact were the following:
The Judge reasonably expects civil behavior in her courtroom
and has, on at least two occasions, adjourned the proceedings
after [Claimant’s] counsel’s failure to heed this Judge’s
warnings that she needed a respite from combative argument.
On these occasions, [Claimant’s] counsel continued to engage
the judge and hold the record hostage. [references to the record
not included.]
(WCJ’s 12/9/09 Decision, Finding of Fact No. 17.)
In the same decision, the WCJ noted:
Claimant’s counsel defines this conduct as zealous
representation; this judge regards this conduct as
disrespectful and contemptuous. . . . This Judge finds it
necessary to put time constraints on future depositions
because it cuts down on witness badgering and
harassment, such as occurred during the cross
examination of Douglas Fadden and George McMillan. . .
. Claimant has made a prima facie case for penalty;
therefore, the request to call future witnesses such as the
claims supervisor at this point is harassing and a waste of
time and money.
(Id., footnotes 18 and 19.)
By decision circulated December 29, 2010, the WCJ granted Claimant’s
penalty petition and directed Employer to: (1) pay Claimant any unpaid benefits; (2)
pay interest on top of these unpaid benefits; (3) pay a 25 percent penalty on top of the
benefits and interest; and, (4) pay for limited costs of Claimant’s litigation. However,
4
the WCJ directed Claimant to pay her own counsel fees, concluding that Employer’s
contest was reasonable. (WCJ’s 12/19/10 Decision, Order.)
That decision was appealed to the Board by both parties. However, the
WCJ failed to submit the transcripts of testimony and the Board remanded on
September 25, 2013, for re-creation of the record, including submitting the missing
transcripts of the hearings and depositions. The WCJ held a hearing for this purpose
and lodged the transcripts with the Board. The WCJ noted the same in a decision
circulated April 16, 2015. Both parties filed protective appeals.
By order dated April 20, 2016, the Board upheld assessment of the
penalty, upheld the reasonableness of Employer’s contest of the proceedings, and
awarded Claimant most of her costs of litigation.
Claimant then filed a petition for review with this Court. On appeal,1
Claimant argues that: (1) the Board erred in affirming the WCJ’s refusal to allow
Claimant additional cross-examination of two of Employer’s witnesses, which would
have compelled assessment of a penalty of 50 percent instead of 25 percent; and, (2)
the Board erred in affirming that same refusal of the WCJ regarding Claimant’s case
for counsel fees based on unreasonable contest.2
1
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).
2
We note that Employer argues that Claimant waived any issue relating to unreasonable
contest attorney fees by failing to include this issue on the appeal form submitted to the
Board. While this issue was not included on the appeal form itself, Claimant did attach an
addendum to that appeal form noting that the appeal related back to the WCJ’s December 29, 2010
decision, which the Board remanded for re-creation of the record, and involved issues of penalties
and unreasonable contest attorney fees. The addendum further explained that on remand from the
(Footnote continued on next page…)
5
Discussion
The WCJ’s duty “is to resolve the claims before him in a fair and
efficient manner.” Sherrill v. Workmen’s Compensation Appeal Board (School
District of Philadelphia), 624 A.2d 240, 245 (Pa. Cmwlth. 1993). Indeed, where
there has been an inordinate passage of time, even under the relatively relaxed rules
of evidence and practice before WCJs, a WCJ’s decision to limit the evidence or
close the record is a matter of his or her discretion because “[t]he WCJ has control
over when to close the record.” Coyne v. Workers’ Compensation Appeal Board
(Villanova University), 942 A.2d 939, 950 (Pa. Cmwlth.), appeal denied, 960 A.2d
457 (Pa. 2008).
This Court in Sherrill was confronted with a workers’ compensation
referee3 who allowed the record to be reopened because of a significant typographical
error in the transcript of the testimony of the defense medical witness. Upon the
reconvening of the defense doctor’s deposition, it became clear that there was no
typographical error; rather, there was an “error in translation” in that the court
reporter had not heard accurately what the doctor had said. 624 A.2d at 244-245.
The referee denied the claim petition and the Board affirmed. This Court affirmed,
holding, “We believe that the referee’s action in this case had the effect of advancing
(continued…)
Board, the WCJ issued a new decision that contained no findings of fact or conclusions of law, but
merely listed the documents requested by the Board; hence, the lack of information on the current
appeal form and the necessity to preserve challenges related to the WCJ’s 2010 decision. Thus, we
cannot agree with Employer that Claimant waived any issue relating to an alleged unreasonable
contest.
3
The office of referee was changed to the office of WCJ by Public Law 190, Act 44 of
1993, as set forth in Section 401 of the Act of June 15, 1915, P.L. 736, as amended, 77 P.S. §701.
6
this goal [resolving claims in a fair and efficient manner], and thus there was no
abuse of discretion. Id. at 245.
This Court has long held that the WCJ has discretion to control the
evidence within the parameters of the rules of practice. For example, in City of
Philadelphia v. Workers’ Compensation Appeal Board (Rooney), 730 A.2d 1051 (Pa.
Cmwlth. 1999), the employer had been warned to depose its medical witnesses within
54 days of a hearing but employer failed to complete the depositions. The WCJ
closed the record and subsequently granted claimant’s two claim petitions. Id. at
1052. This Court held that the WCJ acted neither arbitrarily nor capriciously. Id. at
1052-53.
Moreover, WCJs are subject to the Special Rules of Practice and
Procedure Before Workers’ Compensation Judges (Special Rules).4 These Special
Rules direct the timing and deadlines for first hearings, discovery, scheduling of
depositions, hearings for testimony, and related matters of practice to which both
counsel and the WCJ must adhere. Special Rule 131.54 governs the “manner and
conduct of hearings” and states as follows:
(a) The judge will conduct fair and impartial hearings and
maintain order. At the discretion of the judge, the hearings
may be conducted by telephone or other electronic means if
the parties do not object. Disregard by participants or
counsel of record of the rulings of the judge shall be noted
on the record, and if the judge deems it appropriate, will be
made the subject of a written report to the Director of
Adjudication together with recommendations.
(b) If the participants or counsel are guilty of disrespectful,
disorderly or contumacious language or conduct in
connection with a hearing, the judge may suspend the
hearing or take other action as the judge deems appropriate,
4
34 Pa. Code §§131.1-131.227
including the submission of a written report to the Director
of Adjudication together with recommendations.”
34 Pa. Code §§ 131.54(a) and (b).
In applying Special Rule 131.54, this Court has found it helpful to
examine the entire record. In other words, specifically citing Sherrill, this Court has
held under Special Rule 131.54 that it needed to ascertain whether the conduct of
counsel was appropriate and whether “the WCJ exercised reasonable judgment and
there was no bias in that decision.” Dille v. Workers’ Compensation Appeal Board
(Consol PA Coal), (Pa. Cmwlth., No. 1137 C.D. 2016, filed August 12, 2011) slip op.
at 3.5 There, the claimant sought to re-open the record before the WCJ in order to
adduce additional testimony from the treating physician. In that termination
proceeding, this Court upheld the WCJ’s lenient application of the Special Rules
regarding time deadlines (having already extended the time for that claimant’s
counsel), and held that “absent an abuse of discretion, this Court will not reverse a
WCJ’s decision not to reopen the record.” (Slip op. at 2.) This Court in Dille defined
“abuse of discretion” through the precedent of our Supreme Court. For example,
abuse of discretion is “not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or is the result of partiality, prejudice, bias, or ill-will, as
shown by the evidence or the record, discretion is abused.” Kelly v. County of
Allegheny, 539 A.2d 608. 610 (Pa. 1988) (emphasis in original). A claimant must be
afforded the opportunity to present evidence to support her or his case, but “the
court’s duty does not extend to sending the record back for an opportunity to furnish
5
Pursuant to §414 of this Court’s Internal Operating Procedures, this unreported decision is
not precedential and is only cited for its persuasive value.
8
cumulative evidence to strengthen a weak case.” Cudo v. Hallstead Foundry, Inc.,
539 A.2d 792, 794 (Pa. 1988).
Finally, a WCJ will not have abused his or her discretion when resolving
the claims and running the hearings in a fair and efficient manner, even though this
impeded a “tactical decision” on the part of counsel. Haluska v. Workers’
Compensation Appeal Board (Beverly Healthcare) (Pa. Cmwlth., No. 1315 C.D.
2007, filed January 24, 2008), slip op. at 2.6 There, claimant’s counsel made a
tactical decision to rely on the preliminary report of the defense medical examination
instead of obtaining rebuttal evidence from claimant’s own treating physician. The
defense doctor, however, needed to review additional records, and once he did, he
issued a supplemental report which buttressed that employer’s defense of the claim
petition. The WCJ set a deadline for submission of additional evidence, and nearly
three months after that deadline, claimant’s counsel requested that the record be
reopened so that claimant could offer a report from claimant’s treating physician.
The WCJ denied the request as untimely, and later issued a decision denying the
claim petition. The Board affirmed, as did this Court, again relying directly on this
Court’s Sherrill decision.
In the present case, the WCJ permitted extensive cross-examination of
defense witnesses by Claimant’s counsel. Moreover, the WCJ afforded the parties the
opportunity for specially scheduled hearings which generated additional evidence.
Claimant provided no basis for the need or relevancy of additional cross-examination
of Fadden and Fireoved other than his generalized belief that with the same, he had a
6
Pursuant to §414 of this Court’s Internal Operating Procedures, this unreported decision is
not precedential and is only cited for its persuasive value.
9
better opportunity to establish that Employer’s contest was unreasonable and to
increase his likelihood of a higher penalty. Based on this record the WCJ did not
abuse her discretion by placing time restrictions on Claimant’s counsel, who was
afforded ample opportunity to complete his cross examination. Consequently, we
cannot say that the WCJ abused her discretion when she declined to allow additional
cross-examination of these witnesses.
Finally, we agree with the Board that the WCJ did not err in declining to
assess counsel fees as Employer’s contest in this matter was not unreasonable.
Rather, as the Board noted, Employer’s contest “focused on the genuinely disputed
issues as to which of Claimant’s injuries were work-related and the extent and
duration of her disability, and there was no evidence that [Employer’s] contest was
frivolous or intended to harass Claimant. . . .” (Board op. at 15) (citations omitted).
Accordingly, the order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Annamma Jacob, :
Petitioner :
: No. 747 C.D. 2016
v. :
:
Workers’ Compensation Appeal :
Board (Cardone Industries, Inc. and :
Phoenix Insurance Company), :
Respondents :
ORDER
AND NOW, this 21st day of April, 2017, the order of the Workers’
Compensation Appeal Board, dated April 20, 2016, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge