Opinion
No. 81 C.D. 2014
11-19-2014
Julia Goldman, Petitioner v. Workers' Compensation Appeal Board (Aspen Dental Management and Pennsylvania Manufacturers Indemnity Company), Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Julia Goldman (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that reversed the decision of the Workers' Compensation Judge (WCJ) to impose penalties upon Aspen Dental Management (Employer) pursuant to the Workers' Compensation Act (Act), 77 P.S. §991(d). We affirm the Board.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §991(d).
Claimant began working for Employer as a registered dental hygienist in 2007. Approximately one year into her employment, Claimant began to suffer numbness, cramping, and pain in her hands. She was eventually diagnosed with bilateral cubital tunnel syndrome. On January 22, 2009, Employer issued a Notice of Temporary Compensation Payable. On April 3, 2009, Employer issued a Notice Stopping Temporary Compensation and a Notice of Workers' Compensation Denial, asserting that Claimant's injuries were not work-related. However, Employer did not schedule Claimant to undergo an independent medical examination (IME) until 10 days after it issued the Notice Stopping Temporary Compensation. Employer's IME physician, Dr. Sanjiv Naidu, reported that Claimant suffered from bilateral cubital tunnel syndrome, but the condition was not work-related. Claimant underwent cubital tunnel surgery on her left elbow on May 5, 2009, and on her right elbow on July 1, 2009.
On March 8, 2010, Claimant filed a claim petition for workers' compensation benefits. Claimant underwent a second IME on September 30, 2010. This time Dr. Naidu, revising his earlier opinion, concluded that Claimant's cubital tunnel syndrome was work-related. During the proceedings before the WCJ on the claim petition, Claimant did not file a penalty petition or make a request on the record for penalties. However, in the brief Claimant submitted to the WCJ after the record was closed, Claimant requested penalties. Employer responded in its own proposed findings that
Employer did not violate the Act such that penalties are properly awarded. Moreover, it must be noted that Claimant never filed a penalty petition and has inappropriately raised this request for the first time in her brief.Reproduced Record at 40a (R.R. ___).
On August 3, 2011, the WCJ granted Claimant's claim petition, awarded attorney's fees for an unreasonable contest and imposed a penalty of 30% of past due compensation and medical bills. Employer appealed, and the Board affirmed in part and reversed in part. Specifically, the Board held that the WCJ erred in imposing a penalty on Employer without proper notice or an opportunity to be heard; the Board affirmed the WCJ's decision in all other respects. Claimant now petitions for this Court's review.
Our review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether the Board's procedures were violated, whether constitutional rights were violated, or whether an error of law was committed. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Graves v. Workers' Compensation Appeal Board (Philadelphia Housing Authority), 983 A.2d 241, 244 n.6 (Pa. Cmwlth. 2009).
Claimant argues on appeal that the Board erred in reversing the award of penalties. She raised the issue of penalties in her post-hearing brief with the WCJ, and Employer responded to the argument in its brief. However, Employer did not request a hearing. Alternatively, Claimant argues that if a hearing was required, the Board should have held a hearing or remanded the issue to the WCJ for that purpose.
Section 435 of the Act authorizes a WCJ to impose a penalty on an employer of up to 10% of the claimant's award "for violations of the provisions of this act or such rules and regulation or rules of procedure." 77 P.S. §991(d). The penalty may be increased to 50% "in cases of unreasonable or excessive delays." 77 P.S. §991(d)(i). The employer must be given notice and an opportunity to be heard on the issue of penalties as a matter of due process. Crangi Distribution Co. v. Workmen's Compensation Appeal Board, 333 A.2d 207, 210 (Pa. Cmwlth. 1975). "A request for the imposition of penalties need not be made at the outset of the proceedings; it may be made at any appropriate time before the record is closed." Edmond v. Workmen's Compensation Appeal Board, 402 A.2d 715, 717 n.1 (Pa. Cmwlth. 1979). For example, this Court has held that an oral request for penalties made by claimant's counsel during the hearing was sufficient to give employer an opportunity to be heard. Id; see also 34 Pa. Code §131.121(b) ("Penalty proceedings initiated by a party in a pending proceeding may be initiated . . . by motion on the record in the pending proceeding.").
Section 435(d) states:
The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violations of the provisions of this act or such rules and regulations or rules of procedure:
77 P.S. §991(d).(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.
(ii) Any penalty or interest provided for anywhere in this act shall not be considered as compensation for the purposes of any limitation on the total amount of compensation payable which is set forth in this act.
(iii) Claimants shall forfeit any interest that would normally be payable to them with respect to any period of unexcused delay which they have caused.
Claimant argues that Employer violated the Act by not investigating the claim before stopping temporary compensation; refusing to pay the claim without a good faith argument; and continuing to contest the claim after its own IME physician, Dr. Naidu, acknowledged that Claimant's injuries were work-related. Claimant contends that Employer had the opportunity to be heard on the issue of penalties because it addressed the issue in its own post-hearing brief. Employer chose not to request a hearing on Claimant's request for penalties. Alternatively, Claimant argues that the Board should have conducted its own hearing on penalties under Section 435(d) or remanded the matter to the WCJ under Section 419. Employer counters that it did not have notice or the opportunity to be heard because Claimant did not raise the issue of penalties until after the record was closed; therefore, Claimant waived the issue of penalties. We agree with Employer.
Section 419 of the Act states:
The board may remand any case involving any question of fact arising under any appeal to a referee to hear evidence and report to the board the testimony taken before him or such testimony and findings of fact thereon as the board may order. The department may refer any question of fact arising out of any petition assigned to a referee, to any other referee to hear evidence, and report the testimony so taken thereon to the original referee.77 P.S. §852. Section 419 was added by the Act of June 26, 1919, P.L. 642.
Claimant did not file a penalty petition or make an oral request for penalties while the record before the WCJ was still open. Raising the issue in her post-hearing brief was too late in the process. In Edmond, 402 A.2d at 717 n.1, we explained that a "request for the imposition of penalties . . . may be made at any appropriate time before the record is closed." (emphasis added). Had Employer been aware that penalties were a possibility, it may have produced evidence to explain its actions and convince the WCJ not to award any penalty or at least a lesser amount. Penalties are not automatic; they are discretionary with the WCJ, who may decide not to impose any penalty even where he concludes that the employer has violated the Act.
Claimant argues that Employer did not request a hearing because it had no evidence to present. This is speculation. --------
By waiting until the record was closed to raise the issue, Claimant deprived Employer of the opportunity to present an evidentiary defense to the imposition of penalties. It was not Employer's burden to request the record to be reopened to permit a defense against an issue not raised by Claimant. Rather, it was Claimant's burden to make penalties an issue in the proceeding before the record closed.
For similar reasons, we hold that a remand was not appropriate. The record was closed when Claimant first requested penalties. Once the record was closed, the issue of penalties was waived. See Wheeler v. Workers' Compensation Appeal Board (Reading Hospital and Medical Center), 829 A.2d 730, 734 (Pa. Cmwlth. 2003) (noting that an issue is waived unless it is preserved at every stage of a proceeding).
In summary, we hold that the Board properly reversed the WCJ's award of penalties. Accordingly, we affirm the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 19th day of November, 2014, the order of the Workers' Compensation Appeal Board dated December 17, 2013, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge