Philadelphia Eagles, LLC v. WCAB (Abiamiri)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Philadelphia Eagles, LLC, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Abiamiri), : No. 165 C.D. 2016
Respondent : Submitted: September 30, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 6, 2017
Philadelphia Eagles, LLC (Employer) petitions this Court for review of
the portion of the Workers’ Compensation (WC) Appeal Board’s (Board) January 8,
2016 order affirming the Workers’ Compensation Judge’s (WCJ) decision granting
Victor Abiamiri’s (Claimant) Claim Petition and Petition for Penalties (Penalty
Petition). There are two issues before this Court: (1) whether the WCJ erred by
granting the Claim Petition and, (2) whether the WCJ erred by granting the Penalty
Petition.1 After review, we affirm.
1
Employer’s specific issues are: (1) whether legally-competent expert medical testimony
supported the WCJ’s finding that Claimant was not capable of playing professional football as of
March 13, 2012; (2) whether legally-competent expert medical testimony supported the WCJ’s
finding that Claimant’s April 20, 2012 injury was a natural consequence of his August 5, 2011
injury; and (3) whether the WCJ erred by granting the Penalty Petition. Because Employer’s first
two issues related to whether Claimant’s April 20, 2012 injury was work-related, we consolidated
them for purposes of discussion herein.
Claimant was under contract to play professional football as a defensive
end for Employer for four seasons, beginning on March 1, 2007. On or about August
5, 2011,2 Claimant suffered a right Achilles tendon rupture while attending
Employer’s training camp, and Employer was timely notified. On August 9, 2011,
orthopedic surgeon Steven M. Raikin, M.D. (Dr. Raikin) surgically repaired
Claimant’s right Achilles tendon and, thereafter, Claimant underwent rehabilitation
with Employer’s athletic training staff. Employer did not issue a notice of
compensation payable (NCP) or pay Claimant wage loss benefits. Rather, Employer
paid Claimant his regular salary until his contract expired on March 13, 2012.3 See
Reproduced Record (R.R.) at 237a. Employer also gave Claimant a $55,000.00
severance payment when his contract expired. Claimant was thereafter considered a
free agent.
On April 20, 2012, while Claimant was performing a “W” drill at
“Power Train,” a weight training facility in Cherry Hill, New Jersey, he suffered a
left Achilles tendon rupture. That day, he requested of Employer’s staff and was
given a walking boot for his left foot. Claimant contacted Dr. Raikin who conducted
a surgical repair of Claimant’s left Achilles tendon on April 24, 2012. Claimant did
not return to professional football. Claimant began working for Brown Advisory as a
portfolio analyst on December 2, 2013.
On February 25, 2014, Claimant filed the instant Claim Petition seeking
full disability benefits from August 5, 2011 through December 2, 2013, and partial
disability benefits ongoing from December 2, 2013, plus medical benefits and
counsel fees, for an injury described as “[t]orn right Achilles leading to the left
2
According to the WCJ, “[t]he evidence suggest[ed that] the actual date of [] Claimant’s
injury was August 3, 2011.” WCJ Dec. at 3 n.1. However, since the majority of the record
references are to Claimant’s August 5, 2011 injury date, we will refer to that date as well.
3
Claimant’s four-year contract had been extended through the 2011/2012 season, due to
Claimant’s inability to play during the 2010/2011 season.
2
Achilles tear during rehabilitation.” R.R. at 1a. In its answers, Employer “admitted
that [C]laimant suffered a right Achilles tendon rupture while participating in training
camp for [Employer] on August 5, 2011[,]” but denied that the left Achilles injury
was work-related. R.R. at 4a.
Hearings were held before a WCJ on May 19, August 14 and October
16, 2014, and on January 23, 2015. By June 16, 2015 decision, the WCJ granted the
Claim Petition and the Penalty Petition and directed Employer to pay a 50% penalty
on all past-due compensation. The WCJ also ruled that Employer was entitled to a
credit for the severance payment to Claimant. Employer appealed to the Board
which, on January 8, 2016, reversed the WCJ’s decision relative to the severance
credit, but affirmed the WCJ’s decision in all other respects. Employer appealed to
this Court.4
Employer argues that the WCJ erred by granting the Claim Petition
because the WCJ’s findings that Claimant was not capable of playing professional
football as of March 13, 2012, and that Claimant’s April 20, 2012 injury was a
natural consequence of his August 5, 2011 injury, were not supported by legally-
competent expert medical testimony. We disagree.
An injured employee seeking to obtain [WC] benefits for a
work-related injury bears the burden of proving all elements
necessary to support an award. Pursuant to Section
301(c)(1) of the [WC] Act [(Act)5], 77 P.S. § 411(1), an
employee’s injuries are compensable if they (1) arise in the
course of employment and (2) are causally related thereto.
Further, an employee must demonstrate that he is disabled
as a consequence of the work-related injury. The term
4
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
3
‘disability’ is synonymous with an employee’s loss of
earning power.
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 75 n.4 (Pa.
Cmwlth. 2012) (citations omitted). This Court has specifically held that “[WC]
benefits are not intended as a remedy where the claimant’s loss in earnings is
attributable to factors other than the work injury[,]” such as the end of a professional
football player’s contract. Battles v. Workers’ Comp. Appeal Bd. (Pittsburgh Steelers
Sports, Inc.), 82 A.3d 477, 480 (Pa. Cmwlth. 2013) (wherein the claimant was paid
pursuant to his contract during his rehabilitation and thereafter was cleared to play
football, but the employer declined to renew his contract to sign a better player).
Here, the parties do not dispute that Claimant’s right Achilles tendon
rupture was work-related. The issue before the Court is whether Claimant’s left
Achilles tendon rupture occurred while Claimant was rehabilitating his accepted work
injury and, thus, was also work-related.
Claimant testified in support of his Claim Petition that, following the
surgery on his right Achilles tendon, he received medical treatment and underwent
rehabilitation at Employer’s Novacare Complex practice facility, all of which was at
Employer’s expense. He explained, however, that once his contract expired and he
was told that he was no longer able to use Employer’s facility, he “continued doing
[his] rehab at [Power Train - ] a facility [where he had previously] trained . . . .” R.R.
at 24a; see also R.R. at 37a. Claimant stated that Employer paid for his right Achilles
tendon rehabilitation at Power Train. See R.R. at 24a; see also R.R. at 37a.
Claimant recalled that at the time his left Achilles tendon injury occurred
on April 20, 2012, he was working with a trainer, “doing some resistance training to
try to build up [his] strength in his [right] Achilles.” R.R. at 38a. He related that he
was planting and cutting “to swirl out of a three[-]point stance” with resistance bands
around his wrists, when his left foot injury occurred. R.R. at 39a. Claimant believed
4
that Employer paid for his left Achilles tendon repair surgery, but did not pay for any
subsequent rehabilitation. See R.R. at 25a. He reported that he rehabilitated his left
foot on his own. See R.R. at 40a.
“[I]n cases where . . . the causal relationship between the injury and the
employment is not obvious, unequivocal medical testimony is required to establish
this causal relationship.”6 Rockwell Int’l v. Workers’ Comp. Appeal Bd. (Sutton), 736
A.2d 742, 744 (Pa. Cmwlth. 1999). Here, Claimant presented the deposition
testimony of Dr. Raikin in support of his Claim Petition.
Dr. Raikin testified that he specializes in treatment of the foot and ankle.
He confirmed that he conducted both of Claimant’s Achilles tendon surgeries, and
continued to treat Claimant after each of them. According to Dr. Raikin’s August 25,
2014 narrative report, Claimant’s recovery progressed well after his August 9, 2011
right Achilles tendon surgery:
By three months postoperatively, . . . he was walking full
weight[-]bearing . . . . He was doing very well with
physical therapy and working with his trainers without any
complaints. He had good strength in the Achilles tendon
and further rehabilitation was discussed with him as well as
directly with the trainers with regard to activity resumption.
At approximately six months out from surgical repair, on
February 2, 2012, [Claimant] was seen again and had
continued building up in his linear activities without any
problems, but still had mid-calf muscle atrophy as
compared to the contralateral side with a 10% deficit
compared to the left side. At this point, his rehabilitation
was advanced with a plan to get him back to full
participation with maximum recovery expected
approximately one year out from the surgical
construction.
6
“[M]edical testimony is unequivocal if a medical expert testifies, after providing
foundation for the testimony, that, in his professional opinion, he believes or thinks a fact exists.”
Amandeo, 37 A.3d at 80 (quoting O’Neill v. Workers’ Comp. Appeal Bd. (News Corp., Ltd.), 29
A.3d 50, 58 (Pa. Cmwlth. 2011)).
5
R.R. at 136a (emphasis added).
Dr. Raikin testified that although his goal with both surgeries was to
effectuate repairs that would allow Claimant to return to professional football, he had
“lesser expectations” after the second surgery. R.R. at 76a. Dr. Raikin’s narrative
report reflected that although Claimant’s rehabilitation after the second surgery was
uncomplicated, “[Claimant] was never able to regain the ability to do explosive and
cutting maneuvers required for high-level participation in the National Football
League [(NFL)] as a defensive end.” R.R. at 136a.
Dr. Raikin declared that, as of Claimant’s last examination on March 10,
2014,7 Claimant had excellent strength upon resistance, excellent plantar flexion
strength, normal reflexes, sensation and pulse, no tendon disruption, good resting
tension, and satisfactory lower extremity strength in both ankles and Achilles
tendons. See R.R. at 87a-89a. Dr. Raikin articulated that he did not advise Claimant
against returning to professional football as of March 10, 2014. See R.R. at 96a-97a.
However, he told Claimant that, “in [his] professional opinion[,] it would be highly
improbable that [Claimant] would ever return to playing professional football again at
the level and position that he had played before.” R.R. at 100a.
In his August 25, 2014 narrative report, Dr. Raikin quoted a study
published in the 2006 Journal of American Association of Orthopedic Surgeons in
which it was shown that 36% of NFL players who suffer Achilles tendon ruptures
never returned to play professional football. See R.R. at 90a, 137a. Dr. Raikin
acknowledged that, although there have been players who returned to professional
play within as few as eight months,
[a]n Achilles tendon rupture, despite anecdotal cases with
regard to this, generally with repair [] may only get 90 to
7
Approximately six months before Dr. Raikin’s deposition.
6
95% of [their] contralateral site normal with a single
Achilles tendon rupture.
....
With two Achilles tendon ruptures[,] I do not even
personally know of an anecdotal case of a professional
football player whose had . . . [a]n Achilles rupture on
two different legs that has got back to playing. If there
are any[,] I do not know of them. That would be very rare.
R.R. at 101a (emphasis added).
Relative to causation, Dr. Raikin opined within a reasonable degree of
medical certainty as follows:
Q. . . . Can you tell me at any point during that period of
time would [Claimant] be able to return to his duties as a
professional football player?
A. No, he would not have been able to do so.
Q. Can you tell me why?
A. Initially because of the recovery on the one side. The
general recovery time for an Achilles tendon rupture,
prior to resuming high-level activities such as
professional[-]level football, would be approximately
one year.
He ruptured his other Achilles tendon before ever being
cleared to play and after repair of the second Achilles
tendon he just -- through combination of the two sides --
was never quite able to get back to the ability do to the
explosive[-]type of high-level, high force, high intensity
and high muscle power requirements that he would need to
perform at a professional football player[’s] level.
Q. That second surgery of April 24, 2012, what caused that?
A. During his rehabilitation of his first tendon and while
working with the trainers rehabilitating the right-hand
side[,] he sustained a rupture on the left side.
R.R. at 71a-72a (emphasis added).
7
With respect to Claimant’s rehabilitation at Power Train, Dr. Raikin
declared that although he may have made a recommendation regarding Claimant’s
rehabilitation, he would not have prescribed a particular course of treatment or
recommended a specific facility at which the therapy should be conducted; rather,
Employer’s training staff would have specified where Claimant should go and what
rehabilitation protocol would be followed. See R.R. at 81a-82a, 94a. However, he
acknowledged that Employer’s head team physician Peter F. DeLuca, M.D. (Dr.
DeLuca) prescribed physical therapy for Claimant on March 28, 2012, two
weeks after Claimant’s contract expired. See R.R. at 98a-99a, 144a.
In defense of the Claim Petition, Employer presented the deposition
testimony of Employer’s head athletic trainer Christopher Peduzzi (Peduzzi), who
stated that he was one of Employer’s assistant athletic trainers when Claimant’s right
Achilles tendon injury occurred, and that he was involved in the direct care and
rehabilitation of Claimant’s right Achilles tendon after surgery. Peduzzi explained
that although Claimant was still receiving treatment at Employer’s facility in the
preceding weeks, and used the hot tub and performed correction exercises on his
last day with Employer, see R.R. at 169a-172a,
as of March 13th, . . . [Claimant] was doing all functional
skill work on the field, doing it very well, minimal
discomfort, felt very confident in the fact with his contract
expiring that by rules of the NFL he’s not allowed to rehab
with us or continue any further care here.
When he left us, he was doing very well. Everything
sports[-]specific got -- we would have had no issue with
him participating -- we don’t play football in March. But if
we had a mini camp or something like that, we would have
no issue with him participating in it at that time.
R.R. at 156a; see also R.R. at 173a. Peduzzi declared that while he does not
specifically recall evaluating Claimant on his last contract day, he could tell from
8
notes he reviewed that Claimant “was having no issue with doing functional football
activities for his . . . position[-]specific, functional skill pad.” R.R. at 157a. Peduzzi
represented that Claimant was physically capable of returning to regular football
activity. See R.R. at 172a-173a.
Peduzzi pronounced that Power Train is a weightlifting gym/functional
skill development center where many of Employer’s players work out and train to get
ready for the season, but Employer does not pay for it or have any other involvement
with it. He opined, based upon his review of Claimant’s Power Train strength
program forms, that Claimant was attending Power Train for typical weight training,
rather than specific rehabilitation purposes. See R.R. at 163a-164a.
Peduzzi recalled that after Claimant suffered his left Achilles tendon
rupture, he contacted Employer’s staff for a walking boot and explained that the
injury occurred while he was performing a “W” drill. Peduzzi acknowledged that,
although a “W” drill is not a specific rehabilitation technique for Achilles injuries,
and no one instructed Claimant to do it for that purpose, it is an exercise commonly
performed by defensive players “to work on [their] explosiveness both
accelerating and back pedal.” R.R. at 161a (emphasis added). Peduzzi stated that
Employer’s defensive players “do them every day in practice . . . as part of their
dynamic warm-up.” R.R. at 161a (emphasis added).
Employer also presented Dr. DeLuca’s deposition testimony in which
Dr. DeLuca stated that he evaluated Claimant on August 5, 2011, and referred him to
Dr. Raikin. Dr. DeLuca explained that after a typical Achilles tendon rupture, the
tendon heals and aggressive strength exercises are undertaken approximately three
months after surgery, and most players are back playing within six to eight months
post-surgery. See R.R. at 189a. He also explained that he defers to operating
surgeons for player injury clearances;”[i]f the operating surgeon says they are
9
cleared from that injury, then I usually clear them also, saying that they are ready to
play football.” R.R. at 186a; see also R.R. at 185a.
Dr. DeLuca recounted that after August 5, 2011, he only saw Claimant
again during his December 30, 2011 post-season physical, at which time,
“[Claimant] wasn’t completely rehabilitated,” and he told Claimant to “continue
rehab.” R.R. at 190a (emphasis added). He declared that since Power Train is a
performance facility focused on improving strength and speed, rather than a
rehabilitation facility, he did not specifically prescribe or direct Claimant to
participate in a Power Train program to rehabilitate his right Achilles tendon injury.
He pronounced that players do not typically go to places like Power Train until they
are “fully rehab[ilitat]ed.” R.R. at 187a.
Dr. DeLuca expressed that although Peduzzi is not a doctor, Peduzzi was
fully capable of determining that Claimant could engage in football-related activities
as of March 2012. See R.R. at 190a-191a. Dr. DeLuca further acknowledged that
Dr. DeLuca would defer to Dr. Raikin’s opinions regarding Claimant’s
treatments, but not his ability to return to football. See R.R. at 193a, 197a. Dr.
DeLuca stated that his assistant Tracy8 wrote Claimant’s March 28, 2012 prescription
stating: “PT evaluate and treat, diagnosis status post Achilles repair, right side. Two
to three times a week for four to six weeks. Strengthening for Achilles repair.” R.R.
at 195a-196a; see also R.R. at 144a. Dr. DeLuca stated that Tracy commonly wrote
physical therapy prescriptions, and she was qualified to do so “if she saw [the
player].” R.R. at 195a. He suspected that Claimant called and requested a physical
therapy prescription, and Tracy provided it. See R.R. at 195a. When asked if he
agreed with Tracy’s recommendation, Dr. DeLuca responded:
I don’t know if I would have recommended that. At that
point[,] he should have been completely healed and ready to
8
Tracy’s last name does not appear in the record.
10
play [or] close to it. That is March, the end of March? . . .
So, that’s eight months out from his surgery. He probably
would not have needed physical therapy at that point.
R.R. at 196a. However, Dr. DeLuca admitted that he had seen Claimant only
twice, and he did not review Claimant’s medical records, and did not read
Claimant’s or Dr. Raikin’s testimony, but agreed that Claimant’s left Achilles
tendon repair was medically necessary. See R.R. at 194a, 197a-198a, 200a.
“Substantial evidence is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion.” Washington v. Workers’ Comp.
Appeal Bd. (State Police), 11 A.3d 48, 54 n.4 (Pa. Cmwlth. 2011) (quotation marks
omitted). Further, the law is well established that “[t]he WCJ is the ultimate
factfinder and has exclusive province over questions of credibility and evidentiary
weight.” Univ. of Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8
(Pa. Cmwlth. 2011). “The WCJ, therefore, is free to accept or reject, in whole or in
part, the testimony of any witness, including medical witnesses.” Griffiths v.
Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Based upon the evidence presented in the instant case, the WCJ granted
the Claim Petition, stating:
Claimant established that he sustained a work-related right
Achilles tendon rupture on August 3, 2011, and that ‘but
for’ that injury, [] Claimant would not have sustained his
left Achilles tendon rupture on April 20, 2012. Thus, []
Claimant established that his left Achilles rupture was a
natural consequence of his right Achilles tendon
rupture, and is therefore work-related.
WCJ Dec. at 11 (emphasis added). The WCJ specifically found that “Claimant has
not fully recovered” but rather “continues to be totally disabled as a result of the
August 5, 2011 work injury . . . .” WCJ Dec. at 10. In reaching his decision, the
WCJ made the following credibility determinations:
11
14. . . . [T]his [WCJ] finds [] Claimant to be a credible
witness in all respects. In making this determination, this
[WCJ] considered all evidence including but not limited to
[] Claimant’s demeanor and deportment when testifying . . .
. [] Claimant convincingly presented himself in a candid,
forthright an non[-]evasive manner. I further considered the
fact that the mechanism of the injury and [] Claimant’s
treatment history were generally consistent with the
subjective complaints . . . [which] were generally supported
by the credible medical evidence, particularly the expert
testimony of Dr. Raikin and his surgical findings.
15. . . . [T]his [WCJ] finds the medical testimony of . . .
Dr. Raikin[] to be more credible than the testimony of . .
. [Dr. DeLuca]. In making this determination, this [WCJ]
considered all evidence including but not limited to the fact
that Claimant’s mechanism of injury was consistent with
the subjective complaints and supported by the initial
treatment records as well as the operative findings. Further,
Dr. Raikin had the benefit of treating and evaluating []
Claimant on multiple occasions over an extended period of
time. Of particular significance to this [WCJ] was Dr.
Raikin’s testimony wherein he cogently explained his
surgical findings and expected recovery time and
rehabilitation regiment following the Achilles tendon
rupture injury. In summary, the [WCJ] finds the opinions
of [Dr. Raikin] to be closely reasoned, logical and
sequential and supported by other credible medical
evidence, particularly the operative reports. To the extent
that the opinions of [Dr. DeLuca] differ from those of [Dr.
Raikin], I specifically reject them. Significant in this
determination is the fact that Dr. DeLuca only saw []
Claimant on two occasions and exhibited limited
knowledge of [] Claimant’s case and medical condition.
16. . . . [T]his [WCJ] finds the testimony of [Peduzzi] to be
credible in part to the limited extent of his factual
testimony. However, this [WCJ] rejects any medical
opinions offered by [] Peduzzi when in conflict with the
credible medical opinions of Dr. Raikin. While this [WCJ]
recognizes [] Peduzzi possesses highly[-]specialized
training, education and experience in the field of sports
medicine, he is not a doctor and his opinions simply do not
carry the same gravitas and weight as the opinions of Dr.
Raikin, a highly-experienced orthopedic surgeon who twice
12
operated on [] Claimant. In summary, to the extent []
Peduzzi’s testimony conflicts with the testimony of Dr.
Raikin, it is rejected as not credible.
WCJ Dec. at 8-9 (emphasis added).
Neither the Board nor the Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771
A.2d 1246 (Pa. 2001). Specifically, “Section 422(a) [of the Act, 77 P.S. § 834,] does
not permit a party to challenge or second-guess the WCJ’s reasons for credibility
determinations. [Thus, u]nless made arbitrarily or capriciously, a WCJ’s credibility
determinations will be upheld on appeal.”9 Pa. Uninsured Emp’rs Guar. Fund v.
Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014) (quoting
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195
(Pa. Cmwlth. 2006)). Finally, this Court has held:
‘In performing a substantial evidence analysis, this [C]ourt
must view the evidence in a light most favorable to the
party who prevailed before the factfinder.’ ‘Moreover, we
are to draw all reasonable inferences which are deducible
from the evidence in support of the factfinder’s decision in
favor of that prevailing party.’ It does not matter if there is
evidence in the record supporting findings contrary to those
made by the WCJ; the pertinent inquiry is whether the
evidence supports the WCJ’s findings.
3D Trucking Co., Inc., v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (quoting Waldameer Park, Inc. v.
Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003))
(citations omitted).
9
Capricious disregard “occurs only when the fact-finder deliberately ignores relevant,
competent evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862
A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist where, as
here, the WCJ expressly considered and rejected the evidence. Williams.
13
The Board in this case concluded that the WCJ did not err in granting the
Claim Petition, since Claimant met his burden of proving all of the elements
necessary to support the award. Specifically, the Board declared that Claimant was
able to meet his burden because Claimant and Dr. Raikin’s “credited testimony
constituted substantial, competent evidence to support the fact that Claimant
sustained a work injury that caused him to be disabled.” Board Op. at 5. The Board
also agreed that the credible testimony supported the WCJ’s findings that Claimant’s
left-sided Achilles tendon rupture occurred when Claimant was rehabilitating his
work injury and, thus, was also work-related.
The WCJ summarized all of the testimony and adequately explained his
credibility determinations. Because this Court may not reweigh the evidence or the
WCJ’s credibility determinations, and must view the evidence in a light most
favorable to Claimant, after a thorough review of the record, we agree that Claimant
proved the elements necessary to support his Claim Petition. Thus, the WCJ properly
granted the Claim Petition. Accordingly, the Board did not err by affirming the
WCJ’s decision.
Next, Employer asserts that the WCJ erred by granting Claimant’s
Penalty Petition. Section 435(d) of the Act provides, in relevant part:
The [D]epartment, 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:
[p]rovided, however, [t]hat 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.
14
77 P.S. § 991(d).10 “[A] claimant who files a penalty petition bears the burden of
proving a violation of the Act occurred. If the claimant meets his or her initial
burden of proving a violation, the burden then shifts to the employer to prove it did
not violate the Act.” Gumm v. Workers’ Comp. Appeal Bd. (Steel), 942 A.2d 222,
232 (Pa. Cmwlth. 2008) (citation omitted). Finally, “[t]he assessment of penalties,
and the amount of penalties imposed are matters within the WCJ’s discretion.” Id.
Thus, “absent an abuse of discretion by the WCJ . . . [a penalty award] will not be
overturned on appeal.” Indiana Floral Co. v. Workers’ Comp. Appeal Bd. (Brown),
793 A.2d 984, 991 n.18 (Pa. Cmwlth. 2002).
Section 406.1 of the Act provides, in relevant part:
(a) The employer and insurer shall promptly investigate
each injury reported or known to the employer and shall
proceed promptly to commence the payment of
compensation due either pursuant to an agreement upon the
compensation payable or a[n NCP] as provided in [S]ection
407 [of the Act] or pursuant to a[n NCP] as set forth in
subsection (d), on forms prescribed by the [D]epartment [of
Labor and Industry (Department)] and furnished by the
insurer. The first installment of compensation shall be paid
not later than the twenty-first day after the employer has
notice or knowledge of the employe’s disability. Interest
shall accrue on all due and unpaid compensation at the rate
of ten per centum per annum. Any payment of
compensation prior or subsequent to an agreement or [NCP]
or a notice of temporary compensation payable [(NTCP)] or
greater in amount than provided therein shall, to the extent
of the amount of such payment or payments, discharge the
liability of the employer with respect to such case.
....
(c) If the insurer controverts the right to compensation it
shall promptly notify the employe or his dependent, on a
form prescribed by the [D]epartment, stating the grounds
upon which the right to compensation is controverted and
shall forthwith furnish a copy or copies to the [D]epartment.
10
Added by Section 3 of the Act of February 8, 1972, P.L. 25.
15
(d)(1) In any instance where an employer is uncertain
whether a claim is compensable under this [A]ct or is
uncertain of the extent of its liability under this [A]ct, the
employer may initiate compensation payments without
prejudice and without admitting liability pursuant to a
[NTCP] as prescribed by the [D]epartment.
(2) The [NTCP] shall be sent to the claimant and a copy
filed with the [D]epartment and shall notify the claimant
that the payment of temporary compensation is not an
admission of liability of the employer with respect to the
injury which is the subject of the [NTCP]. The
[D]epartment shall, upon receipt of a[n NTCP], send a
notice to the claimant informing the claimant that:
(i) the payment of temporary compensation and the
claimant’s acceptance of that compensation does not mean
the claimant’s employer is accepting responsibility for the
injury or that a compensation claim has been filed or
commenced;
(ii) the payment of temporary compensation entitles the
claimant to a maximum of ninety (90) days of
compensation; and
(iii) the claimant may need to file a claim petition in a
timely fashion under [S]ection 315 [of the Act], enter into
an agreement with his employer or receive a[n NCP] from
his employer to ensure continuation of compensation
payments.
(3) Payments of temporary compensation shall commence
and the [NTCP] shall be sent within the time set forth in
clause (a).
(4) Payments of temporary compensation may continue
until such time as the employer decides to controvert the
claim.
77 P.S. § 717.1.11
In its brief and during its witness deposition testimony, Employer
acknowledged that it did not issue a notice of compensation or any other
11
Added by Section 3 of the Act of February 8, 1972, P.L. 25.
16
documentation to Claimant relative to his accepted work injury, as required by
Section 406.1 of the Act, but merely admitted the injury in its Answer to the
Claim Petition. Employer Br. at 9, 15 n.3, 44-45, 51. In its defense, Employer
presented the deposition testimony of its human resources vice president Kristie
Pappal (Pappal), whose duties include handling workers’ compensation claims. See
R.R. at 207a. She described that since football is a very physical contact sport,
Employer’s players sustain 800 to 1,000 injuries during the eight months of regular
season practice. See R.R. at 208a.
Pappal admitted that Employer does not maintain WC files for injured
players, nor does it submit all WC claims to Employer’s insurance company. Rather,
Employer creates WC insurance claims only when treatment is required outside
Employer’s training room. See R.R. at 216a-217a. She acknowledged that she is
familiar with the Act, and is aware of the requirements of Section 406.1 of the Act.
See R.R. at 227a, 230a-231a. Pappal explained that, due to the high volume of
injuries, “[i]t’s not practically possible” to formally administer such a high
volume of weekly claims by filing NCPs or medical-only NCPs, “[s]o, we have . . .
a process by which . . . they are treated and . . . upon request we have filed the
[m]edical-[o]nly NCPs[.]” R.R. at 214a (emphasis added); see also R.R. at 243a.
She stated that Employer submits approximately only four or five injury claims to the
insurance company each week. See R.R. at 222a. Pappal described that Employer’s
insurer issues NCPs as necessary, and Employer relies upon its WC attorney to advise
her regarding Employer’s legal obligations. See R.R. at 221, 247a. She clarified that,
even if the claims are not formally administered, Employer covers all medical costs
related to reported work-related injuries. See R.R. at 214a.
Pappal testified that Employer never issued an NCP for Claimant’s work
injury, but has not denied Claimant’s right Achilles tendon rupture, and Employer has
covered Claimant’s medical bills incurred as a result thereof. See R.R. at 210a-212a.
17
She acknowledged, however, that Employer has not paid Claimant anything,
including WC benefits, since his contract ended. See R.R. at 249a.
The WCJ made the following finding:
22. This [WCJ] finds [] Employer failed to promptly issue
a[n NCP] within 21 days after notice or knowledge to []
Employer of [] Claimant’s disability in violation of Section
406.1 of the [Act] and Section 121.7(a) of the
[Department’s Bureau of WC]’s [(Bureau)] rules and
regulations. . . . [T]he record established that Employer
was well aware of [] Claimant’s work injuries (and the
extent thereof) and yet specifically decided not to issue
any type of [B]ureau documents. The violation of the Act
is further aggravated because the instant case does not
involve minor strains or bruises – injuries that undoubtedly
are commonplace each and every day of [Employer’s]
training camp. Instead, this case involves a serious injury
involving the rupture of an Achilles tendon requiring
prompt surgical intervention. Simply admitting to the
occurrence of the injury in [] Employer’s Answer does
not obviate the need for [] Employer to comply with the
Act and to issue appropriate [B]ureau documents.
Accordingly, this [WCJ] finds the violation of the Act under
these facts to be intentional, excessive, unexcused and
prejudicial to [] Claimant. Therefore, I assess a penalty in
an amount of 50% on all amounts due and owing under this
decision.
WCJ Dec. at 10 (emphasis added; footnote omitted). On appeal, the Board declared
that the WCJ did not err by granting the Penalty Petition since Pappal’s testimony
supported the WCJ’s finding that Employer violated Section 406.1 of the Act by
failing to accept or deny Claimant’s work injury as required. See Board Op. at 6-7.
Finding no error in either the Board’s or the WCJ’s reasoning or conclusions in light
of the Act’s clear requirements and no abuse of the WCJ’s discretion, we hold that
the Board did not err by affirming the WCJ’s grant of Claimant’s Penalty Petition.
18
Based upon the foregoing, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Philadelphia Eagles, LLC, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Abiamiri), : No. 165 C.D. 2016
Respondent :
ORDER
AND NOW, this 6th day of March, 2017, the Workers’ Compensation
Appeal Board’s January 8, 2016 order is affirmed.
___________________________
ANNE E. COVEY, Judge