Opinion
No. 671 C.D. 2014
01-14-2015
Irametta Thompson, Petitioner v. Workers' Compensation Appeal Board (Stivers Temporary Personnel), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Irametta Thompson (Claimant) petitions for review of the Workers' Compensation Appeal Board (Board) Order which affirmed the Workers' Compensation Judge's (WCJ) denial of Claimant's Petition for Penalties (Penalty Petition).
The WCJ made the following relevant findings of fact:
1. Irametta Thompson (hereinafter 'Claimant') filed a Penalty Petition alleging that Stiver's Temp Personnel (hereinafter 'Employer') violated the Act when it failed to pay Claimant's benefits and/or attorney's fees, litigation costs and medical expenses pursuant to the decision of WCJ Olin circulated July 22, 1996.
2. The Petition was assigned on October 1, 2010 and Employer filed an Answer denying all material allegations.
3. In support of his [her] Petition, Claimant presented...the Decision of Judge Olin dated July 26, 1996 granting a Claim Petition upon remand and awarding temporary total disability benefits at the rate of $180.00 per week from December 20, 1990 through September 30, 1992, partial weekly disability benefits of $70.00 from October 1, 1992 through March 1, 1993 and partial weekly disability benefits of $40.00 from March 2, 1993 through February 12, 1995. Claimant's benefits were terminated as of February 13, 1995. Claimant was also awarded payment of medical bills and attorney's fees.
4. In support of his [sic] Petition, Claimant presented...a Decision of Judge Olin dated February 1, 2001. WCJ Olin reaffirmed upon remand his original decision granting Claimant's Petition but directed all interest due on the award forfeited due to Claimant's undue delay.
....
8. In opposition to Claimant's Petition, Employer presented...a business record from Travelers showing a payment detail in reference to Claimant and her attorney at the time of the litigation, Allen Feingold, Esquire. The financial inquiry document produced from Travelers reflects that substantial payments in compensation were made to Claimant and Claimant's counsel in the weeks following Judge Olin's July 26, 1996 decision and again in 2001, when a series of checks were issued in March and April pursuant to Judge Olin's February 1, 2001 decision on remand.
9. Employer presented... [a] correspondence dated August 14, 1996 to Claimant's counsel, Allen L. Feingold, Esquire, from Employer's counsel advising that a tax identification number was necessary for the issuance of the attorney's fee check. Also admitted...was correspondence dated August 21, 1996 delineating four checks sent to Claimant's counsel, Allen Feingold, Esquire, confirming that he received the checks
and not mentioning anything about returning them nor is an enclosure noted on the letter. On September 17, 1996, Employer's counsel forwarded correspondence to Mr. Feingold along with three checks payable to him representing counsel fees. On September 23, 1996, Employer's counsel forwarded a check for the litigation costs to Allen Feingold, Esquire. This Judge notes that the amounts set forth in the correspondence comport with the amounts of the checks.
10. Exhibit D-3 is the decision of the Disciplinary Board of the Supreme Court of Pennsylvania dated March 3, 2006, suspending Claimant's counsel, Allen Feingold, from the practice of law in the Commonwealth of Pennsylvania... for a period of three years.
11. Claimant testified before this Judge on May 19, 2011 as follows:
a. Claimant currently resides in Illinois. Claimant testified that following the decision of July 26, 1996 awarding her benefits, she does not recall receiving any checks in payment of the award. Claimant said that over the past fourteen years she has 'touched base' with her attorney of record, Mr. Feingold, but was not aware of his suspension from practicing law in the Commonwealth of Pennsylvania.
12. Mr. Allen Feingold, prior Claimant's counsel, testified before this Judge on May 19, 2011 as follows:
a. Mr. Feingold admitted that he received checks following the circulation of WCJ Olin's decision....He testified that he had a disagreement with the adjuster from Traveler's [sic] because he would not provide his social security number. He admitted that his legal case files have been impounded by the Court of Common Pleas of Philadelphia [County] and he is not allowed to access them. According to Mr. Feingold, he sent all checks received back to Travelers and he did
not provide his client with the checks made payable to her.
13. Claimant did not allege or prove that the distribution checks sent by Travelers were incorrect in their amounts or sent to an incorrect address in having been forwarded to Claimant's counsel at the time, Mr. Feingold. Any argument Claimant makes that the checks were incorrectly sent to Mr. Feingold for distribution is mooted by the fact that Mr. Feingold accepted the checks. Furthermore, Claimant produced no evidence of record to support a finding that Travelers incorrectly produced the checks to Claimant's counsel where Claimant has moved out of state. Claimant's only allegation is that Mr. Feingold did not cash the checks and that he purportedly returned them to the carrier. There is no proof of record to support this allegation. The testimony of Mr. Feingold is not credible in support of the allegations. Mr. Feingold's credibility is impeached by his suspension from the Commonwealth of Pennsylvania. In addition, his contention that monies were not distributed due to his failure to provide a social security number is easily impeached by Exhibit D-2, provided by Employer and its carrier. Exhibit D-2 is credible evidence on the issue of whether or not checks were dispersed following the circulation of WCJ Olin's decision. The documentation shows that despite Mr. Feingold failing to supply his tax ID number when asked, the carrier chose to distribute the monies in accordance with the Judge's decision anyhow, withholding the taxable portion of Mr. Feingold's fees.
14. Employer's evidence in this matter is credible and supports a finding that all monies due and owing pursuant to WCJ Olin's decision on remand were forwarded to Mr. Feingold for distribution to Claimant. There is no correspondence of record to support Mr. Feingold's testimony that he forwarded the checks back to the insurance carrier.
15. Claimant's testimony that she did not receive any monies following a decision favorable to her is not credible on the issue of whether payment was rendered
by the Employer and/or its carrier. The fact that she didn't receive the proceeds is not dispositive of the fact that the proceeds were sent to her counsel of record, Mr. Feingold, and Employer's obligation pursuant to the WCJ's Order satisfied.WCJ's Decision, October 26, 2012, (Decision) Finding of Fact Nos. 1-4, 8-15, and Conclusions of Law No. 1 at 3-5.
....
CONCLUSIONS OF LAW
1. Claimant has failed to meet her burden of proof to establish Employer violated any provision of the Act to warrant imposition of a penalty.
Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2708.
Claimant appealed and the Board affirmed the denial of the Penalty Petition.
Essentially, Claimant contends that the Board erred when it affirmed the WCJ's denial of Claimant's Penalty Petition because Employer failed to sustain its burden of proof on the affirmative defense of payment. Claimant also contends that the WCJ erred when she failed to recuse herself from the case.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
In her statement of Questions Presented, Claimant raised the following three issues:
1. Whether the Appeal Board and the WCJ erred in holding that the employer had met its burden of proof on the affirmative defense of payment? Answered in the negative by the tribunals below.
2. Whether the Appeal Board and the WCJ erred in refusing to award penalties against the employer? Answered in the negative by the tribunals below.
3. Whether WCJ McCormick erred in failing to recuse herself from claimant's case? Answered in the negative by the tribunals below.
Once a workers' compensation claimant files a penalty petition, the onus is on her to establish a violation of the Act or its rules or regulations, and once that is done, the burden shifts to the employer to prove that it did not violate the Act or its rules. See Shuster v. Workers' Compensation Appeal Board (Pennsylvania Human Relations Commission), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000), appeal denied, 781 A.2d 151 (Pa. 2001). The imposition of a penalty in a workers' compensation case and the amount of the penalty to be imposed are typically left to the sound discretion of a workers' compensation judge. See City of Philadelphia v. Workers' Compensation Appeal Board (Calderazzo), 968 A.2d 841, 850 (Pa. Cmwlth.), appeal denied, 980 A.2d 609 (Pa. 2009).
Claimant argues that the credibility findings were not supported by substantial evidence and were irrelevant since Employer did not produce documentation of the cancelled checks. This Court disagrees. Employer presented a business record from Travelers which indicated that multiple checks were issued to Claimant and Mr. Feingold in the weeks following the July 26, 1995, Decision, and again in March and April of 2001, pursuant to the February 1, 2001, Decision. Employer also submitted a packet of correspondence that included: 1) a letter dated August 14, 1996, from Employer's attorney to Mr. Feingold requesting Mr. Feingold's tax identification number so that Travelers could issue his check; 2) a letter dated August 21, 1996, from Employer's attorney to Mr. Feingold indicating the enclosure of four checks for Claimant for various periods of total and partial disability as ordered by the WCJ, with a copy of each of the checks with an explanation of payment; 3) a letter dated September 12, 1996, from Mr. Feingold to Employer's attorney requesting an explanation of how Travelers arrived at the amount for the checks, and requesting his attorney's fees and costs; 4) a letter dated September 17, 1996, from Employer's attorney to Mr. Feingold indicating the enclosure of three checks made payable to him for his fee; and 5) a letter dated September 23, 1996, indicating the enclosure of a check made out to Mr. Feingold representing his litigation costs. Employer also submitted the decision of the disciplinary board of the Supreme Court of Pennsylvania dated March 3, 2006, suspending Mr. Feingold for a period of three years.
The WCJ rejected Claimant's testimony and Mr. Feingold's testimony as not credible. The WCJ as the ultimate finder of fact in workers' compensation cases has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 600 A.2d 541 (Pa. 1991).
Again, it was Claimant's burden to establish that Employer violated the Act, and Claimant failed to do so. To the contrary, Employer presented credible evidence that it did not violate the Act. This Court will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdoch), 667 A.2d 262 (Pa. Cmwlth. 1995).
The WCJ did not abuse his discretion when he denied Claimant's Penalty Petition.
Claimant next argues that the WCJ erred when she failed to recuse herself from the case.
In the present case, Claimant argues that the WCJ "harbor[ed] a fixed bias and hostility towards claimant's former counsel, and claimant herself, such that it was not possible for the WCJ to deliberate fairly and impartially upon the claimant's petition." Claimant's Brief at 18. "The standard for determining whether recusal is proper is whether there is substantial reasonable doubt as to the judge's ability to preside impartially." Steinhouse v. Workers' Compensation Appeal Board (A.P. Green Services), 783 A.2d 352, 356 (Pa. Cmwlth. 2001) (emphasis added). It is presumed that a workers' compensation judge can make the decision of whether or not to recuse for himself/herself and that decision will not be overturned absent an abuse of discretion. To overcome this presumption, the party making the allegation that the workers' compensation judge was not capable of being impartial must show actual bias on the record. Dow v. Workers' Compensation Appeal Board (Household Finance Co.), 768 A.2d 1221, 1225 (Pa. Cmwlth. 2001) (emphasis added). Because recusal is a matter of individual discretion for a judge, a party must normally raise the issue of recusal before a decision has been rendered in a case or that issue will be deemed waived. See M & D Auto Body v. Workmen's Compensation Appeal Board (John Pallot), 599 A.2d 1016, 1019 (Pa. Cmwlth. 1992).
A review of the record reveals that Claimant did not raise this issue before the Board. Therefore, it is waived.
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 14th day of January, 2015, the Order of the Workers' Compensation Appeal Board is affirmed.
Also, Irametta Thompson's Application for Oral Argument is denied.
/s/_________
BERNARD L. McGINLEY, Judge