IN THE COMMONWEALTH COURT OF PENNSYLVANIA Blue Cross/Blue Shield, Petitioner v. Workers' Compensation Appeal Board (Billick), Respondent
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No. 1670 C.D. 2009 Submitted: January 29, 2010
HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: March 23, 2010
In this workers’ compensation appeal, Blue Cross/Blue Shield (Employer) asks whether the Workers’ Compensation Appeal Board (Board) erred in affirming an order of a Workers’ Compensation Judge (WCJ) that granted Kathleen Billick’s (Claimant) claim and penalty petitions. numerous issues for our review. Employer raises
In particular, Employer asserts: the WCJ’s
decision is not supported by substantial evidence; the WCJ did not issue a reasoned decision; Claimant’s medical evidence is not competent; Claimant’s injury did not occur in the course and scope of her employment; Claimant did not provide Employer timely notice of her injury; the WCJ erred in granting Claimant’s penalty petition; and, the WCJ erred in failing to issue Employer a credit for shortterm disability benefits Claimant received. Discerning no merit in these assertions, we affirm.
I. Background Beginning in 2004, Claimant, a registered nurse, worked for Employer as a “care coordinator.” Reproduced Record (R.R.) at 16a-17a. In June 2007, Claimant filed a claim petition alleging that in May 2006, she sustained a “Lisfranc fracture/dislocation of the first and second metarsals [sic] in the left foot, complex regional pain syndrome of the left foot and left leg, [and] associated complications from fusion [surgery] performed on the foot.” R.R. at 1a. Claimant alleged the injury occurred when she “tripped on a curb while working at the Blue Cross Run in Philadelphia[.]” Id. She further alleged she provided notice of her injury to a manager on the day after the work incident. Claimant sought payment of ongoing indemnity benefits beginning June 12, 2006, as well as payment of medical bills and counsel fees. Employer denied the allegations.
Shortly thereafter, Claimant filed a penalty petition alleging Employer did not timely accept or deny liability for the work injury. Proceedings ensued before a WCJ.
Claimant testified by way of deposition.
Her testimony may be
summarized as follows. On Sunday, May 7, 2006, Claimant participated, as a volunteer member of Employer’s “Blue Crew,” in the Independence Blue Cross Broad Street Run, an event which Employer sponsors and provides t-shirts to volunteers. After checking in and beginning her volunteering duties, Claimant needed to return to her vehicle to retrieve her daughter’s Blue Crew t-shirt. As Claimant returned to the tent area, she walked on an uneven curb and twisted her left ankle. Claimant returned to the volunteer area and then proceeded to the
She could not finish her assignment due to severe pain and
Claimant reported for work the next day in sneakers and spoke to her supervisor, Gina Pastella. Claimant informed Pastella that she injured her foot while volunteering at the Broad Street Run and that she experienced difficulty walking and pain in her foot. Pastella informed Claimant that she needed to obtain a doctor’s note to wear sneakers to work. Claimant obtained the note and provided it to Pastella the next day.
Claimant then worked intermittently over the next few weeks. By June 2006, Claimant ceased working and began receiving short-term disability benefits. Claimant sought treatment from a physician who performed an x-ray and provided her with an ankle splint. Claimant subsequently began working for Employer from home. In July 2006, Claimant began treating with Dr. Michael Castro.
About a month later, Dr. Castro performed surgery on Claimant’s left foot. Immediately after the surgery, Claimant resumed receipt of short-term Claimant subsequently resumed working from home and
continued to do so until early 2007.
After the surgery, Claimant began a post-operative therapy program. Dr. Castro performed revision surgery on Claimant in February 2007, which involved removal of two screws inserted during the initial surgery.
In late February 2007, Claimant began treating with Dr. Linda Barney St. Martin, D.P.M., a podiatrist (Claimant’s Podiatrist), who removed two remaining screws from Claimant’s left foot. Claimant’s Podiatrist also referred Claimant to another specialist, who assisted Claimant’s Podiatrist in a subsequent surgical procedure. About a month later, Claimant’s Podiatrist performed a final procedure to remove an external pin, which was causing Claimant severe pain. Shortly thereafter, Claimant was hospitalized for pain management because of severe pain.
Claimant ceased working for Employer in March 2007 because her pain was too severe; she has not worked since that date. Claimant is incapable of working from home because of the effects of her medications and because her pain is too severe, both of which prevent her from focusing on her work.
In support of her claim petition, Claimant presented the testimony of her Podiatrist, who is a member of the American Board of Podiatric Orthopaedics and the American Board of Podiatric Medicine. Claimant’s Podiatrist first
examined Claimant in February 2007 and has continued to treat Claimant several times a month since that time. Claimant’s Podiatrist opined Claimant’s May 2006 work injury to her left foot resulted in a Lisfranc injury or a sprain/strain of the left foot. She further opined that an attempted repair of the Lisfranc injury was
performed; however, Claimant developed Reflex Sympathetic Dystrophy (RSD) that traveled to her ankle. Claimant’s Podiatrist testified all of Claimant’s
treatment and surgeries were related to the May 2006 work injury. Claimant’s Podiatrist testified she has not released Claimant to return to work at any time
while Claimant was under her care.
Claimant’s Podiatrist opined Claimant’s
debilitating pain, coupled with the medication she requires, renders Claimant unable to work.
In opposition to the claim petition, Employer presented the deposition testimony of Stanley Robert Askin, M.D., a board certified orthopedic surgeon (Employer’s Physician), who examined Claimant in January 2008. In addition to his examination, Employer’s Physician obtained a history from Claimant and reviewed Claimant’s medical records. Employer’s Physician testified there is no documentation that Claimant’s left foot or ankle was damaged in any substantive fashion by the May 2006 work incident. Further, Employer’s Physician opined his examination revealed no clinical features consistent with a diagnosis of RSD. Employer’s Physician also opined there was no medical reason why Claimant could not perform her sedentary job duties at home, and the surgeries performed on Claimant were not necessitated by the work incident. Employer’s Physician also opined Claimant’s prescription medication would not interfere with her ability to concentrate on her work unless she was overmedicated.
Employer also presented the deposition testimony of two of its employees, Gina Pastella, Claimant’s supervisor, and Jacquelyn Tucker, a renewal underwriter, who also serves as the project leader of the Broad Street Run.
Ultimately, the WCJ accepted the testimony of Claimant and her Podiatrist. The WCJ found Claimant sustained work injuries in the nature of a Lisfranc fracture/dislocation of the first and second metatarsals in the left foot,
RSD in the left foot, Complex Regional Pain Syndrome in the entire left foot and associated complications from multiple surgeries performed on the foot. The WCJ rejected Employer’s Physician’s opinions. The WCJ found Claimant sustained her injuries while in the furtherance of Employer’s business affairs, and Claimant provided timely notice of her injuries to Employer. Based on these findings and determinations, the WCJ concluded Claimant was entitled to ongoing total disability benefits beginning May 7, 2006.
The WCJ also determined Employer violated Section 406.1 of the Workers’ Compensation Act (Act)1 by failing to issue a notice of compensation payable or a notice of compensation denial within 21 days of notice of the injury. Based on this determination, the WCJ granted Claimant’s penalty petition and awarded a 15 percent penalty against Employer.
Employer appealed, and the Board affirmed. Employer followed.
This appeal by
II. Issues On appeal,2 Employer contends: the WCJ’s decision is not supported by substantial evidence; the WCJ did not issue a reasoned decision; Claimant’s
Act of June 2, 1915, P.L. 736, as amended, added by Act of February 8, 1972, P.L. 25, 77 P.S. §717.1. Our review is limited to determining whether the record supported the necessary findings of fact, whether errors of law were made, or whether constitutional rights were violated. Lahr Mech. & State Workers’ Ins. Fund v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095 (Pa. Cmwlth. 2007).
medical evidence is not competent to support an award of benefits; Claimant’s injury did not occur in the course and scope of her employment; Claimant did not provide timely notice of her injury; the WCJ erred in granting Claimant’s penalty petition; and, the WCJ erred in failing to issue Employer a credit for short-term disability benefits Claimant received.
III. Discussion A. Substantial Evidence/Reasoned Decision Without challenging any specific findings, Employer first argues the WCJ did not issue a reasoned decision, and the WCJ’s credibility determinations did not meet the standard set forth in Daniels v. Workers’ Compensation Appeal Board (Tristate Transportation), 574 Pa. 61, 828 A.2d 1043 (2003). Employer generally contends the WCJ’s decision was not supported by substantial, competent evidence, and the WCJ erred in determining Claimant met the burden of proof on her claim petition.
Employer also asserts the WCJ erred in failing to adequately address the evidence presented and by mischaracterizing the testimony of Claimant’s Podiatrist. Specifically, Employer asserts the WCJ expressly determined Claimant did not undergo surgery on her left foot prior to the May 2006 work incident, a determination which is at odds with the evidence presented. For this reason, Employer maintains, the WCJ’s decision’s is not a “reasoned” one.
1. Substantial Evidence The WCJ’s authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. Minicozzi v. Workers’ Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). The WCJ, as fact-finder, may accept or reject the testimony of any witness in whole or in part. Id. We are bound by the WCJ’s credibility determinations. Id.
Moreover, “[i]t is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made.” Delaware County v. Workers’ Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa. Cmwlth. 2002) (citation omitted). We examine the entire record to see if it contains
evidence a reasonable person might find sufficient to support the WCJ’s findings. Minicozzi. If the record contains such evidence, the findings must be upheld, even though the record may contain conflicting evidence. Id. This Court cannot, nor will we, consider the existence of other testimony that might support findings different from those found by the WCJ. Id.
Additionally, in performing a substantial evidence analysis, we must view the evidence in the light most favorable to the prevailing party. WAWA v. Workers’ Comp. Appeal Bd. (Seltzer), 951 A.2d 405 (Pa. Cmwlth. 2008). Also, we are to draw all reasonable inferences deducible from the evidence in support of the fact finder’s decision in favor of the prevailing party. Id.
In a proceeding on a claim petition, a claimant bears the burden of proving not only that she sustained a work-related injury but that such injury resulted in a disability. Odd Fellow’s Home of Pa. v. Workmen’s Comp. Appeal Bd. (Cook), 601 A.2d 465 (Pa. Cmwlth. 1991). For workers’ compensation
purposes, disability is synonymous with a loss of earning power. Eljer Indus. v. Workers’ Comp. Appeal Bd. (Evans), 707 A.2d 564 (Pa. Cmwlth. 1998). Of further note, in Moltzen v. Workmen’s Compensation Appeal Board (Rochester Manor), 646 A.2d 748 (Pa. Cmwlth. 1994), this Court explained: Our Supreme Court has held that when a [c]laimant in good faith seeks medical treatment for a work-related injury and the medical treatment itself either aggravates the existing injury or causes new or additional injury, the law regards the new injury as having been caused by the original accident, and compensation is payable for the disability associated with the aggravation or new injury. Id. at 750 (quoting Workmen’s Comp. Appeal Bd. v. Ira Berger & Sons, 470 Pa. 239, 243, 368 A.2d 282, 284 (1977)).
In granting Claimant’s claim petition, the WCJ found Claimant sustained an injury to her left foot while volunteering at Employer’s Broad Street Run on May 7, 2006. WCJ Op., Finding of Fact (F.F.) No. 3(f). The WCJ found, at that time, Claimant experienced difficulty walking, severe pain, swelling and sharp pain throughout her bone and ankle. Id. The WCJ also found, as a result of the work incident, Claimant treated with multiple physicians and underwent numerous surgeries. F.F. Nos. 3(h)-(l). The WCJ further found, despite several attempts to return to work, Claimant ceased working for Employer in March 2007
because of severe pain and the effects of the medications she takes to treat her pain. F.F. No. 3(m). In addition, the WCJ made the following pertinent findings: 4. Claimant … submitted the deposition testimony of [her Podiatrist], which can be summarized as follows: **** b. [Claimant’s Podiatrist] opined that Claimant’s May 7, 2006 work injury to her left foot resulted in a Lisfranc injury or sprain/strain of the foot, and that the Lisfranc injury was attempted to be repaired. Claimant then developed, in the interim, RSD, and x-rays and CT scans indicate that she has osteopenia, which is consistent with RSD, and which runs throughout the entire foot and goes into the ankle. Therefore, her work injury caused and exacerbated her problems. While Claimant had past problems with her left foot, those problems had resolved and she had no other problems or exacerbations leading up to her May 7, 2006 work injury. All the pain management physicians have concurred with her diagnosis of RSD. **** f. [Claimant’s Podiatrist] has not permitted Claimant to work at any point because her debilitating pain prevents her from concentrating. Also, in consideration of the medication she is on, it was in Claimant’s best interests, and the best interests of her Employer, that she not work. She opined that Claimant’s inability to work is related to her May 7, 2006 work injury. **** h. [Claimant’s Podiatrist] opined that all treatment and surgeries have been related to the May 7, 2006 work injury.
**** 8. This Judge finds Claimant’s testimony about her work-related injury and her symptoms thereafter to be credible. This Judge notes that Claimant’s complaints are entirely consistent with the findings of [Claimant’s Podiatrist], who this Judge also finds credible. This Judge also notes that the Employer did not present any credible evidence that would undermine Claimant’s credibility. 9. The opinions of [Claimant’s Podiatrist] are credible and persuasive. Where the testimony of [Employer’s Physician] conflicts with the testimony of [Claimant’s Podiatrist], it is rejected. This finding is based in part on the fact that [Claimant’s Podiatrist’s] findings and diagnoses are entirely consistent with Claimant’s injury, and are supported by diagnostic studies, as well as the opinions of Claimant’s other physicians. [Claimant’s Podiatrist] confirmed that Claimant is not fully recovered nor capable of returning to work. Moreover, unlike [Employer’s Physician], [Claimant’s Podiatrist] has had the distinct opportunity to track and monitor Claimant’s condition over time. 10. This Judge also rejects [Employer’s Physician’s] theory that Claimant’s condition is not related to her injury since Dr. Castro performed an unnecessary surgical procedure to treat her work injury. 11. Claimant sustained work injuries on May 7, 2006, in the nature of a Lisfranc fracture/dislocation of the first and second [metatarsals] in the left foot, [RSD] in the left foot, Complex Regional Pain Syndrome (CRPS) in the entire left foot and left leg, and associated complications from multiple surgical procedures performed on [the] foot. **** 14. This Judge finds that the Claimant was totally disabled from her work injury from May 7, 2006 and onward and ongoing. 11
F.F. Nos. 4(b), (f), (h), 8-11, 14. Our review of the record reveals the WCJ’s findings that Claimant met the burden of proof on her claim petition are supported by the testimony of Claimant and her Podiatrist. R.R. at 31a-55a (testimony of Claimant); R.R. at 114a-117a, 129a-138a (testimony of Claimant’s Podiatrist).
2. Reasoned Decision Moreover, we reject Employer’s contention that the WCJ’s decision does not satisfy the “reasoned decision” requirement contained in Section 422(a) of the Act, 77 P.S. §834. In order to satisfy Section 422(a), a WCJ’s decision must permit adequate appellate review. Dorsey v. Workers’ Comp. Appeal Bd.
(Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006). “Section 422(a) does not require the WCJ to discuss all of the evidence presented.” Id. at 194, n.4. “The WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision.” Id. “[T]he purpose of a reasoned decision is to spare the reviewing court from having to imagine why the WCJ believed one witness over another.” Id. at 196 (citation omitted).
Nevertheless, “[w]here medical experts testify by deposition, a WCJ’s resolution of conflicting evidence must be supported by more than a statement that one expert is deemed more credible than another.” Id. at 194. To allow effective appellate review, the WCJ must articulate an objective basis for the credibility determination. Id. at 194-95. Although there are countless objective factors that may support a credibility determination, these factors must be identified and enunciated. Id.
“However, Section 422(a) does not permit a party to challenge or second-guess the WCJ’s reasons for credibility determinations.” Id. at 195.
“Unless made arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld on appeal.” Id. Moreover, “[a] reasoned decision does not require the WCJ to give a line-by-line analysis of each statement by each witness, explaining how a particular statement affected the ultimate decision.” Acme Mkts., Inc. v. Workers’ Comp. Appeal Bd. (Brown), 890 A.2d 21, 26 (Pa. Cmwlth. 2006).
Here, all of the witnesses testified by way of deposition. In crediting Claimant’s testimony, the WCJ noted Claimant’s complaints were entirely consistent with the findings of Claimant’s Podiatrist, and Employer did not present any evidence that would undermine Claimant’s credibility. F.F. No. 8.
In crediting the testimony of Claimant’s Podiatrist over that of Employer’s Physician, the WCJ pointed out Claimant’s Podiatrist’s opinions were supported by diagnostic studies as well as the opinions of Claimant’s other physicians. F.F. No. 9. In addition, the WCJ stated, unlike Employer’s Physician, Claimant’s Podiatrist had the opportunity to track and monitor Claimant’s condition over time. Id. We believe the objective bases cited by the WCJ in support of his credibility determinations are adequate to allow for effective appellate review. See Daniels, 574 Pa. at 78, 828 A.2d at 1053 (noting a WCJ may reject the testimony of an expert on the objective basis that the expert had less interaction with the subject).
In addition, we reject to Employer’s contention that the WCJ’s decision is not reasoned on the ground the WCJ failed to address the fact that Claimant had prior problems with her injured left foot. To the contrary, in his 13
findings regarding Claimant’s Podiatrist’s testimony, the WCJ expressly noted Claimant’s Podiatrist’s opinion that, “[w]hile Claimant had past problems with her left foot, those problems had resolved and she had no other problems or exacerbations leading up to her May 7, 2006 work injury.” F.F. No. 4(b)
(emphasis added). In addition, the WCJ referred to Claimant’s Podiatrist’s opinion that “[i]n the months leading up to Claimant’s May 7, 2006 work-related injury, there were no problems with Claimant’s left foot and any prior problems had resolved.” F.F. No. 4(g) (emphasis added). The WCJ also noted Employer’s Physician’s testimony regarding Claimant’s prior 2002 injury. Specifically, the WCJ found, although Employer’s Physician testified Claimant sustained a prior left foot injury for which she received treatment in 2002 and July 2004: No treatment was documented between July 2004 and May 2006. [Employer’s Physician] is not aware of any treatment. There was no treatment with any of the specialists/orthopedics. F.F. No. 5(d). Thus, contrary to Employer’s assertion, the WCJ specifically
recognized Claimant had a prior injury to her left foot. However, the WCJ noted Claimant’s Podiatrist’s opinion that this injury resolved prior to the May 2006 work incident, and Employer’s Physician’s acknowledgement that there was no indication Claimant received treatment for the prior injury for almost two years prior to the work incident at issue. As such, we reject Employer’s contention on this point. B. Competency of Claimant’s Podiatrist’s Testimony Citing a line of cases beginning with Newcomer v. Workmen’s Compensation Appeal Board (Ward Trucking Corp.), 547 Pa. 639, 692 A.2d 1062 (1997), Employer next argues the WCJ erred in granting Claimant’s claim petition 14
because Claimant’s Podiatrist’s testimony was incompetent in that it was based on an incomplete and inaccurate medical and work history. Specifically, Employer contends Claimant’s Podiatrist was unaware Claimant suffered a prior injury to her left foot until she was questioned about it by Employer’s counsel. Employer further maintains that although Claimant’s Podiatrist testified Claimant’s prior foot problems fully resolved, Claimant’s medical history reveals she had ongoing problems with her left foot before her current work injury. Employer also asserts its Physician had a more complete history and review of medical records.
A medical expert’s opinion is not rendered incompetent unless it is based solely on inaccurate or false information. Newcomer.3 The opinion of a medical expert must be viewed as a whole; inaccurate information will not defeat the opinion unless it is dependent on those inaccuracies. Am. Contracting Enters., Inc. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391 (Pa. Cmwlth. 2001).
Our review of the record here reveals Claimant’s Podiatrist’s opinion was not based solely on inaccurate or false information. In particular, Claimant’s Podiatrist specifically testified Claimant made her aware of her prior 2002 foot injury. R.R. at 161a (“I knew she had had some work done on her foot and that she had injured her foot back in 2002.”); 162a (“I don’t think she was covering up
In Newcomer, the claimant was injured in 1989 and received treatment and partial disability benefits for an abdominal injury. Several years later, he sought total disability benefits for disability arising from an alleged shoulder injury incurred with the 1989 abdominal injury. However, there was no record of any shoulder complaint or shoulder treatment between 1989 and 1991. Indeed, the claimant did not mention any shoulder injury during his early testimony in the compensation proceedings. Our Supreme Court rejected the causation opinion of the claimant’s physician, which assumed the accuracy of the claimant’s representation of a dormant work injury, a representation contradicted by medical records.
anything. I think she was telling me she injured the foot, the foot had been injured in 2002 but she was doing fine. … I knew she had injured the foot, yes. That was made in the history.”) testified: Q. In looking over my notes, you testified on [d]irect – I believe you were posed a question the months leading up to May 2006 she had no – you testified she had no problems and had full resolution of her prior problems; correct? A. I said that, yes. On cross-examination, Claimant’s Podiatrist further
Q. And in your review of the records, there are some notes that talk about ongoing problems; correct? A. Q. Yes. But you weren’t made aware of them.
A. What I’m saying is that the RSD, which seems to be the most significant problem with [Claimant] right now, that’s the part that she did not have prior to May 7th. She did not have the RSD. She had a Lisfranc injury. She has probably arthritic changes that occurred as a result of the injury that were chronic. If you repeatedly injure a previously injured joint you will only exacerbate that problem. The RSD is what’s significant at this point and juncture. And that’s the main problem that she has is the RSD. R.R. at 173a-74a. Our review of the testimony of Claimant’s Podiatrist in its entirety reveals Claimant’s Podiatrist was aware of Claimant’s prior injury, and Claimant’s Podiatrist clearly and unequivocally opined the work injury at issue here caused disabling RSD. See R.R. at 133a-35a. Claimant’s Podiatrist further explained Claimant’s current condition prevents her from performing her job
duties because the extent of the pain and the medication required to treat Claimant’s condition prevent Claimant from concentrating on her job duties. R.R. at 134a. Claimant’s Podiatrist testified she knew Claimant was a nurse and
Claimant’s job required her to be attentive to detailed information, including drug dosages. R.R. at 131a-32a. This testimony is consistent with Claimant’s R.R. at 53a-55a. Therefore, we reject
testimony regarding her job duties.
Employer’s argument that Claimant’s Podiatrist’s testimony is incompetent based upon an alleged inaccurate understanding of Claimant’s medical or work history.
Moreover, we reject Employer’s argument that Claimant’s Podiatrist’s testimony is rendered incompetent on the ground that Employer’s Physician based his opinions on a more complete review of Claimant’s medical records. To that end, “[t]he fact that a medical expert does not have all of a claimant’s medical records goes to the weight given the expert’s testimony, not its competency.” Marriott Corp. v. Workers’ Comp. Appeal Bd. (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003). The WCJ here credited the opinions and testimony of
Claimant’s Podiatrist over that of Employer’s Physician. Based on our review of Claimant’s Podiatrist’s testimony in its entirety, we believe that testimony constitutes competent evidence to support the WCJ’s findings.
C. Course and Scope of Employment Employer next contends the WCJ erred in determining Claimant’s injury occurred in the course and scope of her employment. Employer argues Claimant was participating in the Broad Street Run when the injury occurred and was in no way in furtherance of her employment with Employer.
Injuries sustained by an employee while “actually engaged in the furtherance of the business or affairs of the employer” are compensable whether the injuries occurred on the employer’s premises or elsewhere. Section 301(c) of the Act, 77 P.S. §411(1).4 The operative phrase “actually engaged in the
furtherance of the business or affairs of the employer,” which is usually expressed as “in the course of employment,” must be given a liberal construction. See Southeastern Pa. Transp. Auth. v. Workers’ Comp. Appeal Bd. (McDowell), 730 A.2d 562 (Pa. Cmwlth. 1999). Determining whether an employee is acting in the course of employment at the time of an injury is a question of law, which must be based on the findings of fact made by the WCJ. Id.
Employees who are injured while engaging in various sports activities sponsored by the employer, or otherwise are in the furtherance of the employer’s business or affairs, may have compensable injuries. PSFS/Meritor Fin. v.
Workmen’s Comp. Appeal Bd. (Walker), 603 A.2d 692 (Pa. Cmwlth. 1992). The factors to be considered in determining whether such activities fall within the realm of furthering an employer’s business or affairs include the knowledge and consent of the employer, the publication of notices of the events in company communications or on company bulletin boards, and direct permission or requests for an employee’s participation from persons in management positions with the employer. Id.
Section 301(c) provides in pertinent part: “The terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employe ... arising in the course of his [or her] employment and related thereto.... The term ‘injury arising in the course of his [or her] employment,’ as used in this article ... shall include all ... injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere ....”
Our decision in Walker is instructive here. In Walker, the claimant sustained injuries while playing in a charity volleyball game for a team sponsored by the employer’s “employee association.” Id. at 693. The workers’ compensation authorities awarded benefits based on a determination that the claimant’s injuries occurred while she was engaged in the furtherance of the employer’s business or affairs. Affirming the determinations below, this Court held: Based upon our review of the record, it appears that the activities of the employee association are well known to the employer. Furthermore, there is evidence in the record that shows that claimant’s participation in the game was with employer’s permission. First, notice of the event was published in the company bulletin. Second, claimant asked her supervisor and a company vice-president if they would sponsor her in the event. Third, claimant testified that a vice-president of the employer had asked her to participate in the event. Surely, the positive public image created by identifiable company participants in charitable community activities is both sought after and an undeniable goal of employer. Because of this and because the evidence indicates that claimant’s participation was with employer’s permission, we believe the referee’s conclusion that claimant was injured while furthering the business or affairs of employer is consistent with the caselaw regarding off-premise injuries. Id. at 694-95.
Here, with regard to whether Claimant’s injury occurred in the course and scope her employment, the WCJ made the following pertinent findings: 3. Claimant testified via deposition on August 22, 2007 and her testimony can be summarized as follows:
**** b. On May 7, 2006, Claimant and her children were volunteering for the Employer at the Blue Cross Broad Street Run in Philadelphia. The Employer sponsored the event and provided tshirts to volunteers which read: “Blue Cross Annual Broad Street Run.” c. The Employer would encourage employees to volunteer for the event. If not enough volunteers had been recruited, the Employer would send out general emails asking for volunteers. The Employer has a website that is only accessible to employees and the site referenced the Blue Cross Broad Street Run in the upcoming events category. d. The Employer’s general website refers to the Blue Crew, which consists of employees who get involved to help out in the community. Claimant considered herself a member of the Blue Crew and had her Blue Crew T-shirt on the day of the Blue Cross Broad Street Run. The words “Independence Blue Cross[”] were also written on the t-shirt. e. Claimant did not sign up to run the Broad Street Run, but was signed up only to volunteer. When she reported to the person in charge of assigning volunteer tasks, she was told that she would be lining up snacks for the runners. After the event occurred, a picture of Claimant and her daughter appeared on the Employer’s website. f. Claimant began her volunteering duties, but had to go back to her car to get her daughter’s Blue Crew t-shirt, which she had left behind. As she was returning to the tent area, she walked on uneven curb and twisted her left ankle. Claimant returned to the volunteer area and went to the paramedic tent. She could not finish her assignment and was having difficulty wal[k]ing,
severe pain, swelling, and sharp pains through her bone and ankle. **** 6. Employer’s fact witness, Jacquelyn Tucker, establishes that Claimant’s work injury occurred while in furtherance of the Employer’s business. a. She volunteers with the Employer’s corporate program, Blue Crew. For the last two years, Ms. Tucker has been the project leader at the Broad Street [R]un. Claimant [who] had also been a member of the Blue Crew was present at the Broad Street Run on May 7, 2006. b. When she participated at the Broad Street Run, she was required to wear a Blue Crew t-shirt, as were all volunteers. The Employer was involved in the event. c. The event benefits the company. **** F.F. Nos. 3(b)-(f), 6(a)-(c).
Our review of the record here reveals adequate support for the WCJ’s findings. R.R. at 19a-34a (testimony of Claimant); 228a-233a, 235a-236a
(testimony of Jacquelyn Tucker). These findings, in turn, support a determination that Claimant was engaged in the furtherance of Employer’s affairs or business when her injuries occurred. More particularly, as is evident from the above-quoted findings, Employer is obviously aware of and sponsors the Broad Street Run, and Employer encouraged the participation of its employees in the Broad Street Run through email and on its website. Of further note, Claimant testified the employees who volunteer in various Employer-sponsored events (including the Broad Street 21
Run), as part of the “Blue Crew,” participate in numerous charitable events in order to reach out to the community. R.R. at 23a-24a. As we stated in Walker, “the positive public image created by identifiable company participants in charitable community activities is both sought after and an undeniable goal of employer.” Id. at 695. Because of this and because the record indicates
Claimant’s participation as a volunteer was with Employer’s encouragement, we discern no error in the WCJ’s conclusion that Claimant was injured while furthering the business or affairs of Employer. Walker; see also Scott v.
Workmen’s Comp. Appeal Bd. (Packaging Corp. of Am.), 536 A.2d 492 (Pa. Cmwlth. 1988) (employee who sustained injuries while playing for companysponsored softball team was engaged in the furtherance of his employer’s business); Tredyffrin-Easttown Sch. Dist. v. Breyer, 408 A.2d 1194 (Pa. Cmwlth. 1979) (employee who lost his eye sight during his employer’s company picnic sustained the injury in the course of employment). D. Notice Employer next maintains the Board erred in affirming the WCJ’s award of benefits where Claimant did not notify Employer of her alleged injuries within 120 days of her knowledge of the alleged injuries. In support, Employer points to the testimony of two of its fact witnesses, both of whom denied receiving any report of injuries sustained by Claimant.
Timeliness of a claimant’s notice to his employer is mandatory for recovery of workers’ compensation benefits. Duquesne Light Co. v. Workmen’s Comp. Appeal Bd. (Kraft), 416 A.2d 651 (Pa. Cmwlth. 1980). Section 311 of the
Act sets forth the time limitation on notice of injury to the employer and when the time for giving notice begins to run. It states, in relevant part: Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf … shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. … 77 P.S. §631.
The claimant bears the burden of establishing he gave the employer timely notice of the injury under Section 311. City of Phila. v. Workers’ Comp. Appeal Bd. (Williams), 578 Pa. 207, 851 A.2d 838 (2004). The question of the timeliness of that notice is generally one of fact. Id.; Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 565 Pa. 114, 771 A.2d 1246 (2001); Katz v. Evening Bulletin, 485 Pa. 536, 403 A.2d 518 (1979). As a result, where the WCJ
determines a claimant gave an employer timely notice, we must determine whether substantial evidence supports that finding. Carrier Coal Enters. v. Workmen’s Comp. Appeal Bd. (Balla), 544 A.2d 1111 (Pa. Cmwlth. 1988).
Based on the facts found by the WCJ here, we believe Claimant met her burden of proving she gave Employer timely notice of her injury as required under Section 311. The WCJ here found: “Claimant provided timely notice of the work injury to the Employer.” F.F. No. 15. This finding is directly supported by Claimant’s testimony. In particular, Claimant testified, after reporting for work in
sneakers because of her injured foot, she notified her supervisor of the injury. See R.R. at 35a. Although Employer points to the conflicting testimony of its fact witnesses, the WCJ credited the testimony of Claimant over these witnesses, a determination within his exclusive province as fact-finder. Minicozzi. Further, based on the WCJ’s finding it is clear Claimant gave Employer notice well within 120 days of the occurrence of her injury. Employer’s argument to the contrary is merely an invitation for this Court to reweigh the evidence, which we may not do. Minicozzi.
E. Penalty Employer further argues the Board erred in affirming the WCJ’s award of a 15 percent penalty against it. In support, Employer contends Claimant did not provide it timely notice of her work injury. Thus, Employer’s assertion on this point hinges on our acceptance of its previous argument that Claimant did not provide timely notice. See Petitioner’s Br. at 21. Employer reiterates that it presented fact witness testimony that Claimant did not provide timely notice of her injury and, based on this evidence, it should not have been penalized.
Penalties are provided in Sections 435 of the Act,5 and are appropriate where a violation of the Act or the Board’s rules and regulations occurs. The assessment of penalties and the amount of penalties imposed, if any, are matters within the WCJ’s discretion. Gumm v. Workers’ Comp. Appeal Bd. (Steel), 942 A.2d 222 (Pa. Cmwlth. 2008). “[A] violation of the Act or its regulations must appear in the record for a penalty to be appropriate.” Shuster v. Workers’ Comp.
Added by the Act of February 8, 1972, P.L. 25, 77 P.S. §991.
Appeal Bd. (Pa. Human Relations Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000). A claimant who files a penalty petition bears the burden of proving a violation of the Act occurred. Id. If the claimant meets her initial burden of proving a violation, the burden shifts to the employer to prove it did not violate the Act. Id.
An employer violates Section 406.1 of the Act if it fails to issue a notice of compensation payable, a notice of compensation denial, or a notice of temporary compensation payable within 21 days of receiving notice of a workrelated injury. Coyne v. Workers’ Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939 (Pa. Cmwlth.), appeal denied, 599 Pa. 683, 960 A.2d 457 (2008). Thus, an employer can be liable for penalties for failure to comply with this provision. Id.
Here, the WCJ determined Employer violated Section 406.1 of the Act by failing to issue a notice of compensation payable or a notice of compensation denial within 21 days of when it received notice of Claimant’s injury. F.F. No. 16. The WCJ found Employer knew of the injury either on the date it occurred or shortly thereafter when Claimant reported it to her supervisor. Id. Thus, the WCJ awarded a 15 percent penalty against Employer. No abuse of discretion is apparent in the WCJ’s grant of Claimant’s penalty petition. As noted above, Employer’s sole assignment of error in response to the WCJ’s grant of Claimant’s penalty petition is that Claimant did not provide Employer with timely notice of her injury. As explained above, the WCJ credited Claimant’s testimony that she did, in fact, give timely notice. Further, our review of the record supports the WCJ’s finding that Employer did not issue a notice of compensation payable, a
notice of compensation denial or a notice of temporary compensation payable. Indeed, Employer makes no assertion to the contrary. Therefore, we reject
Employer’s argument that the WCJ erred in granting Claimant’s penalty petition.
F. Credit As a final point, Employer contends the WCJ erred in failing to award it a credit for short term disability benefits Claimant received. It argues Claimant admitted receipt of short term disability benefits under a plan funded entirely by Employer. Employer further asserts it requested a credit, but the Board did not address this issue. Thus, Employer maintains, it is now entitled to such credit.
Upon review, we conclude Employer did not properly preserve this issue. More particularly, our review of the record reveals Employer did not assert its entitlement to a credit in its appeal from the WCJ to the Board. R.R. at 276a278a (Appeal from Judge’s Findings of Fact and Conclusions of Law and attachment). Thus, it is not surprising that the Board did not address this issue. As such, this issue is waived. See Griffith v. Workers’ Comp. Appeal Bd. (New Holland North America, Inc.), 798 A.2d 324 (Pa. Cmwlth. 2002) (where claimant did not raise the issue of whether WCJ erred in granting the employer a social security disability offset in his appeal to the Board, the issue was waived before this Court); see also McGaffin v. Workers’ Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94 (Pa. Cmwlth. 2006) (failure to raise issue in appeal documents filed with the Board results in waiver).
Based on the foregoing, we affirm.
ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Blue Cross/Blue Shield, Petitioner v. Workers' Compensation Appeal Board (Billick), Respondent : : : : : : : :
No. 1670 C.D. 2009
ORDER AND NOW, this 23rd day of March, 2010, the order of the Workers’ Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge