Opinion
No. 1355 C.D. 2011
03-14-2012
Tammy Little, Petitioner v. Workers' Compensation Appeal Board (PA Dept. of Labor & Industry), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Tammy Little (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) decision denying a penalty petition for the Department of Labor and Industry's (Employer's) failure to pay wage loss benefits because no wage loss benefits were due. Claimant also contends that the Board erred in finding her Review Petition to correct the award was precluded. If the Board decisions are upheld, Claimant also appeals the Board's determination that Employer is required to pay attorneys' fees and costs of litigation actually paid rather than a quantum meruit calculation. We reverse and remand for the reasons set forth in this opinion.
Although the petition is captioned "Tammy Little v. Workers' Compensation Appeal Board," Ms. Little is now deceased. Thus, "Claimant" will refer both to Ms. Little and her estate as appropriate.
Section 440 of the Workers Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 44 of the Act of February 8, 1972, P.L. 25, 77 P.S. §996, provides that a successful Claimant is entitled to attorneys' fees unless the employer establishes "a reasonable basis for contest."
On March 17, 2005, Claimant was injured at work when an elevator she was on made a sudden jerking motion and dropped nearly 12 floors, throwing Claimant and aggravating a pre-existing back injury. She continued to work until the pain increased to the point that she was advised by her physician not to work. On March 21, 2006, she filed a claim petition seeking workers' compensation benefits to which Employer responded by filing a termination petition on July 18, 2006, alleging full recovery.
The WCJ found that Claimant was leaving work and got on an elevator which made a sudden jerking motion, throwing Claimant about "like she was on an amusement park ride." (Reproduced Record [R.R.] at 21a.) Once the elevator stopped, she called the Capitol Police who told her how to get herself out of the elevator. Claimant reported that she felt pain on the left and right sides of her lower back immediately following the incident and that she had a previous back injury for which she received treatment. She tried to continue working but it became increasingly difficult as the pain grew worse daily. She was taken out of work on August 8, 2005, pursuant to a doctor's order. Another treating physician diagnosed Claimant with degenerative disc changes and arthritic, bony spondylitic changes, which were aggravated by the March 17, 2005 incident. The WCJ also found that Claimant was denied workers' compensation benefits on August 12, 2005. Based on these findings, the WCJ determined that Employer unreasonably contested its liability and awarded Claimant costs of litigation and Section 440 attorneys' fees. He also determined that Claimant was entitled to workers' compensation benefits for the March 17, 2005 injury. Employer appealed to the Board and filed a Request for Supersedeas on March 23, 2007, as well as a Petition to Suspend on May 20, 2007, but withdrew the requests in June 2007. Claimant passed away on June 26, 2007, for reasons unrelated to the work injury.
Claimant then filed a petition for penalties alleging failure to pay wage loss benefits or attorneys' fees and litigation costs as awarded in the March 6, 2007 decision. Employer answered, alleging that the March 6, 2007 decision only awarded an injury, not wage loss benefits or attorneys' fees. On October 24, 2008, a different WCJ found that the March 6, 2007 decision acknowledged a work injury, but did not provide for wage loss benefits. He also found that the order did not establish a value for the costs of litigation, attorneys' fees, witnesses, medical examinations, and loss of time to attend proceedings. Based on these findings, the WCJ determined that the March 6, 2007 decision establishes a work-related injury but did not award wage loss benefits because it did not contain findings with regard to disability. He also determined that the earlier decision did not contain any of the factual findings necessary to award attorneys' fees. The WCJ further clarified that Claimant "could have requested an Amended Decision to clarify the specific obligations of [Employer], or could have filed an Appeal." (R.R. at 41a.) As a result, the penalty petition was denied.
Section 435(d) of the Act, 77 P.S. §991(d), provides, in relevant part:
The department[ or] the board ... 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 ... 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.
Claimant appealed to the Board, which affirmed the WCJ's denial of the wage loss claim, determining that the March 6, 2007 opinion did not "conclude with certainty that Claimant produced the necessary unequivocal medical testimony linking her loss of earnings to her work injury." (R.R. at 54a.) Because Claimant purportedly did not make out the causal connection, the Board found that Employer had not violated the Act by failing to pay wage loss benefits. However, the Board also determined that Claimant was entitled to attorneys' fees for the unreasonable contest pursuant to the Act, but it noted that Claimant had not submitted her costs to the WCJ, so it remanded for submission of those costs and directed that reasonable costs and attorneys' fees be paid to Claimant.
On March 22, 2010, Claimant filed a review petition to amend the March 6, 2007 order to include wage loss benefits. As to the remanded portion of the penalty petition dealing with attorneys' fees and costs, Claimant submitted a list of litigation costs and a quantum meruit list of attorneys' fees on June 10, 2010; litigation costs totaled $2,655.21, and attorneys' fees totaled $4,100. The review petition and attorneys' fees matters were consolidated. On October 5, 2010, the WCJ found that the March 6, 2007 decision was final and did not award wage loss benefits, and the WCJ refused to review the decision on the basis of res judicata and collateral estoppel. He also found that "any fees paid by Claimant to his counsel were to be reimbursed directly to Claimant," (R.R. at 75a), so such fees should be deducted from Claimant's compensation benefits. The WCJ, therefore, ordered Employer to pay Claimant attorneys' fees and litigation costs that Claimant actually paid, rather than the quantum meruit determination. Claimant appealed both the denial of that portion of the penalty petition and review petition to the Board.
The Board determined that the WCJ's application of res judicata and collateral estoppel were proper because the issues Claimant raised in the most recent appeal were identical, actually litigated, essential to the judgment, and material to the adjudication with regard to the March 6, 2007 determination on the claim petition. The Board also found that the award of attorneys' fees actually paid was proper, even though it basically provided no attorneys' fees because Claimant was not awarded indemnity benefits, as "the [WCJ] complied with the purpose of Section 440 in awarding a fee representative of the amount of counsel fees actually deducted from Claimant's compensation benefits and paid." (Exhibit A to Claimant's Brief at 7.) The Board, therefore, affirmed the WCJ's decision. Claimant then appealed the now final order of denial of the penalty petition and dismissal of the review petition to us.
The Board also noted that failure to raise an issue on appeal to the Board constitutes waiver of the issue, Edwin L. Heim Co. v. Workmen's Compensation Appeal Board (Reever), 663 A.2d 290 (Pa. Cmwlth. 1995), and a judge's findings are final unless an appeal is taken within 20 days. Fiorentino v. Workmen's Compensation Appeal Board (Concrete Industries, Inc., and Danlandi Construction Co., Inc.), 571 A.2d 554 (Pa. Cmwlth. 1990). Claimant did not appeal the March 6, 2007 decision.
Our review of a decision of the Board is limited to determining whether errors of law were made, constitutional rights were violated or whether the record supports the necessary findings of fact. Ward v. Workers' Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159 (Pa. Cmwlth. 2009). --------
On appeal, Claimant contends that the Board erred in not awarding penalties and indemnity benefits because the March 2007 unappealed adjudication purportedly did not award indemnity benefits. She also contends that the Board erred in finding that she was precluded from bringing a review petition to seek clarification of the March 2007 award because the penalty petition had decided that issue. Employer contends that Claimant is precluded from bringing either the penalty petition or review petition because the March 2007 order did not award wage loss benefits. If the March 2007 order did not award indemnity benefits, we would agree with Employer that the Board properly denied benefits and that review petition should have been denied because Claimant was precluded from challenging that order in a subsequent proceeding. Therefore, the central question is whether the March 2007 order awarded wage loss benefits.
To make that determination, we have to review the March 2007 claim petition award. At the hearing, the statement of wages and the fee agreement were introduced. After finding Claimant's witnesses more credible than Employer's, the WCJ then issued an award with the following pertinent finding of fact:
7. Claimant testified that she continued to try and perform her usual job but that due to her condition, it was becoming increasingly difficult and that her pain was becoming worse each day.
8. Claimant testified that she was referred to Dr. Morganstein, who treated her with physical therapy.
9. On August 8, 2005, claimant was taken out of work completely by another treating physician, Dr. D'Amico.
10. Claimant has not currently returned to work.
11. Claimant is currently being treated by Dr. Morganstein, Dr. D'Amico and Dr. Santo. Neither of these three doctors has returned claimant to work.(R.R., at 22a-25a.) After making those findings, the WCJ issued the following order:
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14. Dr. Morganstein began treating Tammy Little on August 5, 2005. He conducted a physical examination on this date. Dr. Morganstein stated that the claimant reported being injured on March 17, 2005 when a work elevator which she was riding dropped twelve floors, jarring the claimant's lower back.
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17. Dr. Morganstein opined unequivocally that he felt that the claimant's condition was caused by an aggravation of her pre-existing back condition. Specifically, claimant's MRI findings showed degenerative disc changes and arthritic, bony spondylitic changes. The incident on March 17, 2005 resulted in an aggravation of those conditions.
18. Dr. Morganstein testified that he agreed with Dr. Santo who had seen the claimant previous to his initial examination and agreed with Dr. Santo when she took the claimant off work.
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27. The Judge finds that after examining all the medical evidence and the testimony of Dr. Morganstein, finds that Dr. Morganstein expressed his opinions unequivocally that the claimant's injury was work related and he testified that his opinion was given within a reasonable degree of medical certainty.
AND NOW, to wit, this 6th day of March, 2007, the claim petition is hereby granted.
The termination petition is denied and dismissed.(R.R., at 29a.)
The employer/insurer has acted in an unreasonable manner, thus demanding that the claimant be granted the costs of litigation and Section 440 attorney fees.
The defendant is hereby ordered and directed to pay claimant for costs incurred for attorney fees, witnesses, necessary medical examinations and the value of unreimbursed loss of time to attend any proceedings.
The fee agreement between claimant and counsel is hereby approved as fair and reasonable.
In interpreting the WCJ's order, the Board determined that this order did not award wage loss benefits because the WCJ did not specifically indicate whether Claimant was entitled to wage loss benefits or the amount of wage loss benefits she would be entitled to receive. What that position ignores is that the WCJ granted the claim petition, and the claim petition sought, among other things, loss of wages from August 8, 2005, onward. (See paragraph 14 of the Claim Petition.) As to the Board affirming the denial of the petition on July 10, 2009, because Claimant did not establish the causal connection between the injury and loss of earning power, that is both factually wrong as evidenced by the findings set forth above and irrelevant because in the penalty petition, we are looking at what was awarded, not whether the unappealed decision was correct or not. Because the WCJ did award wage loss benefits, neither the penalty nor the review petition was precluded.
Accordingly, we remand this matter to the WCJ to calculate the amount of the weekly wage loss benefits from August 8, 2005, onward to Claimant's death, and award attorneys' fees as calculated by the fee agreement, as well as costs incurred. We also remand the Penalty Petition to the Board for it to remand to the WCJ to determine if penalties are appropriate.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 14th day of March, 2012, the order of the Workers' Compensation Appeal Board, dated June 24, 2011, is reversed. This matter is remanded back to a Workers' Compensation Judge for calculation of indemnity benefits owed, calculation of attorneys' fees and litigation costs pursuant to this opinion, and to consider whether penalties should be awarded.
Jurisdiction relinquished.
/s/_________
DAN PELLEGRINI, President Judge