Opinion
No. 1909 C.D. 2014
07-24-2015
Thomas Keefer (Deceased) and Dani Keefer (Dependent of Deceased), Petitioner v. Workers' Compensation Appeal Board (American Mineral Sales Co.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant, Dani Keefer, petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the order of Workers' Compensation Judge (WCJ) Melcher denying her fatal claim petition as time barred under Section 301(c)(1) of the Workers' Compensation Act (Act) because the death did not occur within three hundred weeks of the date of injury. In this non-occupational "disease-as-injury" case, Claimant in her capacity as the dependent daughter of Decedent, Thomas Keefer, sought benefits based on his death due to alleged complications from a previously established work injury of Legionnaire's Disease. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
The disease at issue is not one of the occupational diseases listed in Section 108 of the Act, 77 P.S. § 27.1, which are compensable through Section 301(c)(2) of the Act, 77 P.S. § 411(2). Only certain diseases are specifically listed as occupational diseases because they "already have been scientifically proven to result especially from employment in particular occupations . . . [and] also have been proven to result only from the day by day exposure to unhealthful conditions over an extended period of time." Formicola v. Workmen's Comp. Appeal Bd. (City of Phila.), 509 A.2d 434, 437 (Pa. Cmwlth. 1986). If a death occurs when an employee is receiving benefits for an occupational disease pursuant to Section 301(c)(2), a fatal claim petition may be filed even though death occurs more than three hundred weeks after the date of injury.
In 1994, Decedent filed a claim petition alleging that he contracted Legionnaire's disease while employed as an international sales manager for Employer American Mineral Sales Company. WCJ Williamson determined that Decedent established that he was exposed to the Legionella while on a business trip and that he "sustained his burden of establishing with unequivocal medical evidence that his . . . disease was contracted in the course and scope of his employment and thus constitutes a work-related injury." WCJ Williamson's May 30, 1996 Decision, Conclusion of Law No. 2; Reproduced Record (R.R.) at 18a. Accordingly, the WCJ ruled as follows: "The employer shall pay all of the claimant's necessary and related medical expenses as set forth herein. [It] shall continue to pay [his] reasonable, necessary and related medical expenses ongoing until the status of his injury changes under the Act." Id., Finding of Fact (F.F.) No. 4; R.R. at 18a.
Following Decedent's July 2012 death, his daughter filed a fatal claim petition alleging that his cause of death was as follows: "'complications of Legionella' as given by 'death certificate.'" November 2, 2013 Fatal Claim Petition at 1; R.R. at 4a. The answer of the State Workers' Insurance Fund (SWIF) was untimely under Section 416 of the Act, 77 P.S. § 821, and, consequently, Claimant's counsel made a motion for an award of benefits based on Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board (Madara), 423 A.2d 1125, 1127 (Pa. Cmwlth. 1981). SWIF subsequently conceded that it did not have a reasonable excuse for its tardiness and, accordingly, WCJ Melcher found that the fatal claim petition yielded the following well-pled facts:
In Yellow Freight, 423 A.2d at 1127, this Court held that, where an employer belatedly filed an answer without an adequate excuse, the WCJ had to decide the matter on the basis of the petition and evidence presented by the petitioner. Further, we held that the employer was barred from raising any affirmative defenses.
a. [Decedent] sustained a work related injury on May 4, 1992.WCJ Melcher's June 6, 2013 Decision, F.F. No. 14.
b. [Decedent] died on July 27, 2012 (more than 20 years after the injury).
c. [Decedent's] cause of death was complications of Legionella.
d. [Claimant] is the dependent daughter of [Decedent].
Also before the WCJ was SWIF's motion to dismiss the petition as time barred under Section 301(c)(1) of the Act, which provides, in pertinent part, as follows:
( 1) The terms "injury" and "personal injury" as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, . . . arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury; and wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury. [Emphasis added.]
Ultimately, WCJ Melcher denied Claimant's Yellow Freight motion, concluding that she was not entitled to benefits. The WCJ granted SWIF's motion to dismiss, based on the fact that Decedent died more than twenty years after the date of the compensable injury. The Board affirmed and Claimant's petition for review followed.
We first address SWIF's contention that Claimant failed to preserve the issues addressed in her petition for review and brief due to her failure to state the particular grounds for her appeal from the WCJ's decision in compliance with 34 Pa. Code § 111.11(a)(2). Specifically, SWIF maintains that Claimant merely attached the WCJ's decision to her appeal to the Board, without any statement whatsoever. In support, SWIF attaches as an appendix to its brief what purports to be Claimant's appeal. This attachment, however, does not match the appeal in the Board's certified record. Although both the attachment and the appeal appear to bear the signature of Claimant's counsel, only the appeal bears a Bureau Claim Number of 413224 and a Board time-stamp of June 25, 2013. Further, the appeal indicates certificates of service for WCJ Melcher, American Mineral Sales Co., Paul C. Cipriano and SWIF. In any event, this Court may consider only the appeal found in the certified record. On the basis of that appeal and the petition for review, we turn now to SWIF's argument that Claimant waived some or all of her arguments on appeal.
The address for Mr. Cipriano matches the address for counsel listed on the cover page of SWIF's brief. In any event, we cannot assume that Claimant's counsel sent an incomplete and/or incorrect certificate of service to SWIF. If that was the case, however, SWIF was not prejudiced in light of our disposition of Claimant's petition for review.
This Court may not accept appendixes attached to a party's brief that are dehors the record. Rossi v. Unemployment Comp. Bd. of Review, 675 A.2d 390, 392 (Pa. Cmwlth. 1996).
In her appeal from the WCJ's decision, Claimant challenged Findings of Fact Nos. 15, 16 and 17 and Conclusion of Law No. 3. Noting that only well-pled facts could be deemed admitted, the WCJ in those fact-findings determined that the issue of whether survivor benefits are payable is a question of law, which could not be deemed admitted. Further, on the basis of what she determined were the well-pled facts, the WCJ found that Claimant was not entitled to benefits because Decedent's death occurred more than twenty years after the compensable injury. In the disputed conclusion of law, the WCJ determined that Section 301(c)(1) of the Act is a statute of repose.
Findings of Fact Nos. 15-17 are as follows:
15. The filing of a late Answer only results in the admission of well pled facts, not conclusions of law. In the instant matter, Claimant clearly pled the above facts which are deemed admitted. However, those facts are a double edged sword. The facts do not support the conclusion of law that benefits are payable due to the death of [Decedent]. Even IF counsel for Claimant is correct and Section 301(c)(1) is a "definition" section of the Act, it is a definition that clearly and plainly outlines when survivor benefits are payable which is a conclusion of law. A conclusion of law cannot be deemed admitted by a late answer. If the facts, as pled, are deemed admitted, then [Claimant] is not entitled to benefits under the Act regardless of what she might try to prove in the litigation. [Claimant] has not once alleged that the allegations as pled were erroneous.WCJ Melcher's June 6, 2013 Decision, F.F. Nos. 15-17.
16. This Judge finds that [Decedent's] death occurred more than 20 years after the date of the compensable injury and therefore, [Claimant] is not entitled to benefits under Section 301(c)(1) of the Act based on the facts pled in the petition. The Yellow Freight Motion is denied.
17. This Judge further finds that Section 301(c)(1) is a statute of repose and [SWIF's] Motion to Dismiss is granted.
Regarding what issues Claimant may have preserved on appeal, she made the same averment for each fact-finding: "The Judge is making a legal conclusion and not finding a fact. Her conclusions are wrong." Claimant's June 25, 2013 Appeal at 1. Regarding the disputed conclusion of law, Claimant averred that the WCJ erred in determining that Section 301(c)(1) is a statute of repose. Based on her averments, Claimant waived an argument that her claim was compensable under Section 301(c)(2) of the Act, 77 P.S. § 411(2). McGaffin v. Workers' Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94, 101 (Pa. Cmwlth. 2006) (petitioner waives issues by not raising them in the appeal documents before the Board). She also waived arguments that the WCJ failed to issue a reasoned decision regarding her determination that Section 301(c)(1) was a statute of repose and that the petition was timely because Decedent had been receiving benefits before his death for the same injury that caused his death. Given the fact that the only conclusion that the WCJ made in the disputed fact-findings was that the determination of whether survivor benefits are payable under Section 301(c)(1) is a question of law, we conclude that Claimant preserved that challenge. In addition, she preserved the issue of whether Section 301(c)(1) is a statute of repose. We turn now to those issues.
Contrary to Claimant's contention, the WCJ correctly determined that the issue of whether survivor benefits are payable is a question of law. In that regard, "[a]lthough a party can admit a factual event, it cannot admit how the legal effect of those facts should be characterized." Bensing v. Workers' Comp. Appeal Bd. (James D. Morrissey, Inc.), 830 A.2d 1075, 1078 (Pa. Cmwlth. 2003). The determinative issue for the WCJ, therefore, was whether, based on the well-pled facts, benefits were payable as a matter of law. In that regard, an employer's failure to file a timely answer does not operate to automatically satisfy a claimant's burden of proof. Greeley v. Workers' Comp. Appeal Bd. (Matson Lumber Co.), 647 A.2d 683, 687 (Pa. Cmwlth. 1994). The well-pled factual allegations must be legally sufficient to support the claim. Id. Accordingly, although Claimant reaped the advantage of the admission of her well-pled facts as a result of SWIF's unexcused late answer, she did not garner the benefit of an admission to any legal conclusions such as whether benefits were payable. See Bensing, 830 A.2d at 1077 (an unexcused late answer results in an admission of facts, but not conclusions). If that were true, then an unexcused late answer would be tantamount to a default judgment, which is not the case. Neidlinger v. Workers' Comp. Appeal Bd. (Quaker Alloy/CMI, Int'l), 798 A.2d 334, 338 (Pa. Cmwlth. 2002).
Moreover, as SWIF suggests, Claimant should not have reaped the advantage of the admission to the well-pled "fact" of Decedent's cause of death as "complications of Legionella." An unexcused late answer does not excuse a claimant from establishing all of the elements necessary to support an award of compensation, i.e., whether the injury arose in the course and scope of employment and whether it is causally related thereto. Dandenault v. Workers' Comp. Appeal Bd. (Phila. Flyers, Ltd.), 728 A.2d 1001, 1006 (Pa. Cmwlth. 1999). Resolution of both of those elements requires legal determinations. Neidlinger, 798 A.2d at 338; Dandenault, 728 A.2d at 1005. Regarding causation in the present case, Claimant's burden was to establish that Decedent's death resulted from Legionnaire's disease and its resultant effects. Section 301(c)(1) of the Act. Accordingly, the WCJ erred in accepting the cause of death as a well-pled fact because causation cannot be deemed admitted based on an unexcused late answer to a claim petition. Neidlinger, 798 A.2d at 338.
In any event, the well-pled facts pertaining to timing indicate that Decedent sustained a work-related injury on May 4, 1992, and died on July 27, 2012, which is clearly beyond the death manifestation time restriction found in Section 301(c)(1) of the Act. As a matter of law, therefore, benefits were not payable. As we observed in Brockway Pressed Metals v. Workers' Compensation Appeal Board (Holben), 948 A.2d 232, 234 n.4 (Pa. Cmwlth. 2008) [citing David B. Torrey and Andrew E. Greenberg, Pennsylvania Workers' Compensation Law and Practice (Torrey), § 5:20 (2008)]: "[B]ecause it is not a true 'occupational disease' claim, a disease-as-injury claim will be subject to the section 301(c)(1) death manifestation requirements, and if an original claim is granted, and the employee dies more than three hundred weeks after the injury, the fatal claim will be barred." We reiterated this well-settled tenet in Whitesell v. Workers' Compensation Appeal Board (Staples, Inc.), 74 A.3d 297, 300 (Pa. Cmwlth. 2013), appeal denied, 85 A.3d 485 (Pa. 2014), holding: "This Court has consistently held, without exception, that Section 301(c)(1) denies benefits to a claimant when more than 300 weeks have elapsed between the commencement of the compensable injury and the injury-related death."
We have updated the Torrey treatise reference from Brockway to reflect the fact that the relevant sections pertaining to death claims in the "disease-as-injury" context have moved.
In light of our disposition, we need not address the issue of whether Section 301(c)(1) is a statute of repose. In that regard, we note only the suggestion in the Torrey treatise that the death manifestation requirement found in Section 301(c)(2) of the Act is a statute of repose. Torrey, § 5:60 (2008). --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 24th day of July, 2015, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge