Wilson v. WCAB (Allied Corp. [Honeywell Corp.] and Travelers Insurance Co.) - 893, 989, 2297 & (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Wilson, Deceased; Ann Wilson, : Widow, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Allied Corporation [Honeywell Corp.] : and Travelers Insurance Company), : Respondents : : : : v. : : Workers' Compensation Appeal Board : (Wilson), : Respondent : No. 893 C.D. 2007 Allied Signal, Inc. (Honeywell), Petitioner Ann Wilson and James Wilson, Deceased, Appellant v. Travelers Insurance Company and Allied Signal, Inc. Ann Wilson, Dependent Widow; James Wilson, Deceased, Appellant v. Allied Signal, Inc. (Honeywell, Inc.) and Travelers Insurance Company BEFORE: : : : : : : : : : : : : : : : : No. 989 C.D. 2007 No. 2297 C.D. 2007 No. 2298 C.D. 2007 Submitted: May 2, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: July 8, 2008 Before the court are the consolidated appeals of Ann Wilson (Claimant) and Allied Signal, Inc./Honeywell (Employer). Claimant and Employer cross-appeal from the April 12, 2007, order of the Workers Compensation Appeal Board (WCAB) affirming the May 16, 2006, remand decision of a workers compensation judge (WCJ) to: (1) grant the claim petition filed by Claimant s late husband, James Wilson (Decedent), without calculating benefits; (2) deny interest, penalties, attorney s fees and costs related to the claim petition; (3) grant the fatal claim petition filed by Claimant; and (4) assess interest, penalties, attorney s fees and costs related to the fatal claim petition. In addition, Claimant appeals from the July 12, 2007, and September 12, 2007, orders of the Court of Common Pleas of Philadelphia County (trial court), which, respectively, granted Employer s motion to open/strike a judgment entered by Claimant and granted a special injunction to Employer and Travelers Insurance Company (Travelers). The following decision is but the most recent adjudication in twentyfive years of contentious litigation.1 We briefly summarize only the facts and 1 Decisions were issued by five different workers compensation judges, both male and female, over the long course of these proceedings. For the sake of brevity, and meaning no (Footnote continued on next page ¦) 2 procedural history necessary to resolve the issues raised in these appeals, beginning with the matters relevant to the parties workers compensation crossappeals. On October 19, 1983, Decedent filed a claim petition under section 108 of the Workers Compensation Act (Act)2 alleging total disability resulting from an occupational disease. (R.R. at 7a-8a.) Employer filed a timely answer in the form of a general denial, (R.R. at 10a-11a), and, in 1985, Employer filed an amended answer specifically denying the allegations in the claim petition. (R.R. at 12a-13a.) In 1986, after Decedent refused Employer s requests, Employer filed a petition with the WCAB for an order directing Decedent to submit to an independent medical examination (IME).3 (O.R.) The WCAB referred the petition to the WCJ for hearings. (S.R.R. at 1124a.) On June 12, 1987, the WCJ issued a Suggested Award and Order granting Employer s petition for an IME, (S.R.R. at 1127a-28a), which Decedent appealed to the WCAB. Without ruling on the petition, the WCAB remanded the matter to the WCJ to make findings with regard (continued ¦) disrespect, we refer to each individual as the WCJ and use a masculine pronoun when referencing the various WCJs decisions, findings and conclusions. 2 Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L. 930, 77 P.S. §27.1. 3 At the time Employer filed its petition, the WCAB was the only administrative body authorized to order an IME. Subsequently, such authority was extended to WCJs as well. See H.K. Porter Co., Inc. v. Workmen s Compensation Appeal Board, 514 A.2d 996 (Pa. Cmwlth. 1986). 3 to the reasons for the delay in the proceedings and to identify the party bearing responsibility for that delay. In his 1989 remand decision, the WCJ found that Employer s delay in scheduling the IME was excusable and reasonable in light of the extreme delays caused by Decedent and Decedent s general lack of cooperation and abuse of the workers compensation system intended to further his third party litigation. (R.R. at 16a.) Ultimately, on October 17, 1989, the WCJ, on remand, denied the claim petition, reasoning that it would not be equitable to consider Decedent s medical evidence in light of Decedent s continued and unreasonable refusal to submit to an IME. Having so decided, the WCJ dismissed Employer s petition to compel an IME as moot, (R.R. at 15a-16a), and because Employer did not appeal from the dismissal, an order directing an IME was never issued. Decedent appealed the WCJ s decision to the WCAB. (R.R. at 19a-23a.) Decedent passed away on September 19, 1990, without ever submitting to an IME.4 On January 7, 1991, Claimant filed a fatal claim petition alleging that Decedent s death was caused by his occupational disease. (R.R. at 27a-28a.) Employer filed a timely and responsive answer, and the case was 4 Pursuant to a June 14, 1982, notice of compensation payable, Decedent received total disability benefits at the weekly rate of $284 for a work-related back injury. (S.R.R. at 1122a.) In 1989, those benefits were modified to reflect partial disability at the rate of $229.31 per week, effective July 30, 1984. (S.R.R. at 1099a-1102a.) After Decedent s death in 1990, the amount of wage loss benefits payable under the claim petition became fixed at the weekly rate of $54.69 for the closed period from September 15, 1983, through September 29, 1990, (representing the difference between the amount of total disability payable and the amount of compensation Decedent received for the prior back injury during the same period). (See WCJ s May 16, 2006, decision, Findings of Fact, Nos. 12-16.) 4 assigned to a WCJ. The record reflects that nine hearings on the fatal claim petition were scheduled from May 9, 1991, through September 27, 1994. (R.R. at 33a.) That little if anything was accomplished during that period is abundantly clear, but the reasons for that breakdown in the administrative process cannot be ascertained with certainty. Nevertheless, on November 14, 1994, the WCJ found that, over the course of nine hearings, Claimant s counsel either failed to appear or failed to move the case forward by presenting any evidence. Concluding that Claimant s counsel violated section 131.13 of the Special Rules of Practice and Procedure, 34 Pa. Code §131.13 (relating to continuances and postponements), and, citing the unreasonable delay created by Claimant, the WCJ granted Employer s request to dismiss the fatal claim petition for lack of prosecution. (R.R. at 33a-34a.) Claimant appealed this decision to the WCAB. (R.R. at 36a42a.) The WCAB addressed both Decedent s and Claimant s appeals in a decision and order dated August 2, 1995, characterizing the sole issue before it as whether the WCJ was authorized to dismiss the claim petition and/or the fatal claim petition. (R.R. at 61a.) Citing Ross v. Workmen s Compensation Appeal Board (Allied Signal Corp.), 616 A.2d 155 (Pa. Cmwlth. 1992), the WCAB first held that section 314 of the Act, 77 P.S. §651, does not authorize a WCJ to dismiss or deny a claim petition as a remedy for a claimant s failure to submit to an IME. Accordingly, the WCAB remanded the claim petition for consideration of Decedent s medical evidence and a decision on the merits. The WCAB also directed the WCJ to consider appropriate sanctions for Decedent s failure to attend the IME, such as forfeiture of interest or suspension of compensation, apparently 5 overlooking the fact that no order requiring Decedent to submit to an IME had ever been issued. The WCAB also remanded the fatal claim petition for hearing and disposition, noting, but not addressing, the parties arguments concerning excessive delays and the grant of a prior stay of those proceedings. (R.R. at 59a63a.) During the course of the proceedings, Claimant acknowledged that a third-party action related to Decedent s occupational disease had been filed, (see e.g., September 15, 1998, hearing at 12, S.R.R. at 1192a), but Claimant repeatedly refused to provide Employer any information concerning the progress or outcome of that case. On July 15, 1998, Employer filed a review petition alleging that it had reason to believe that Decedent received a third party settlement and refused to disclose the specifics of the third party case, as required by section 319 of the Act, 77 P.S. §671.5 (R.R. at 362a-63a.) In a January 6, 1999, decision on remand, the WCJ responded to Claimant s assertion regarding Employer s initial failure to file a sufficient answer to the claim petition and determined that Employer s amended answer cured any defect regarding lack of specificity in Employer s original answer. (WCJ s January 6, 1999, decision, Findings of Fact, No. 18.) The WCJ also concluded that, even if Decedent met his burden of proof on the claim petition, Decedent was ineligible for benefits for the duration of his refusal to submit to an IME and, 5 On March 20, 2008, Employer filed a motion to supplement the record, seeking to include a certified copy of a civil docket from the trial court in the matter of Wilson, et al v. Celotex Corporation, et al, filed October 21, 1983, Case ID No. 831004140. We denied Employer s motion by order dated March 31, 2008. 6 therefore, would not be entitled to any lifetime benefits. (WCJ s January 6, 1999, decision, Conclusions of Law, No. 2.) Accordingly, the WCJ again denied the claim petition. The WCJ also dismissed the fatal claim petition, concurring in the reasoning given for the earlier dismissal based on Claimant s failure to prosecute. (WCJ s January 6, 1999, decision, Findings of Fact, Nos. 19-23, Conclusions of Law, No. 6.) In a subsequent order, dated December 1, 2000, the WCJ granted Employer s review petition and directed Claimant s counsel to provide Employer with any relevant information pertaining to the third party action filed on Decedent s behalf. (R.R. at 368a-70a.) Claimant appealed both orders to the WCAB. (R.R. at 88a-93a, 123a.) In its decision of May 24, 2002, the WCAB reversed the denial of the claim petition. Relying on Robb v. Workers Compensation Appeal Board (Department of Public Welfare), 718 A.2d 875 (Pa. Cmwlth. 1998), the WCAB reasoned that, because neither the WCJ nor the WCAB ever ordered Decedent to submit to an IME at a particular time, Decedent s failure to undergo an IME did not authorize the WCJ to deny the claim petition. (R.R. at 114a-18a.) The WCAB also determined that Employer s initial answer to the claim petition was insufficient as a matter of law and was not cured by Employer s amended answer. Therefore, the allegations in the claim petition were deemed to be admitted, section 416 of the Act, 77 P.S. §821, and the WCAB held that Decedent s claim petition should be granted based on those admissions. (R.R. at 118a-21a.) After granting the claim petition, the WCAB remanded to the WCJ for consideration of Decedent s request for penalties, costs, counsel fees and interest. (R.R. at 121a22a.) 7 The WCAB also vacated the WCJ s dismissal of the fatal claim petition for failure to prosecute and remanded for further proceedings, stating that both parties had suffered under the misapprehension that a decision on the claim petition would have an effect on the fatal claim proceedings. (R.R. at 122a-23a.) However, the WCAB affirmed the grant of Employer s review petition, stating that [a]ll issues regarding subrogation shall be placed on the record before the WCJ. (R.R. at 124a.) The WCAB issued a supersedeas in the underlying claim petition until Claimant provided relevant information to Employer, thereby enabling the WCJ to determine the exact amount owed to Decedent for the closed period. (R.R. at 125a.) The WCJ held additional remand hearings, during which Claimant presented evidence in support of the fatal claim petition but pointedly refused even to discuss any information relevant to the third party case. (S.R.R. at 1291a-95a.) For its part, after indicating on several occasions that it would be defending against the fatal claim petition, (R.R. at R.R. at 713a, 719a-20a, 752a-57a, 829a-30a), and after being provided additional time in which to do so, Employer ultimately presented absolutely no evidence in defense of the fatal claim. (R.R. at 696a.) On May 16, 2006, the WCJ issued another remand decision adjudicating the claim and fatal claim petitions. (R.R. at 141a-50a.) First, acknowledging that the WCAB had granted the claim petition, the WCJ found that the amount of the benefits due under the claim petition is impossible to determine due to Claimant s continued refusal to provide information concerning the third party action. (WCJ s May 16, 2006, decision, Findings of Fact, No. 4.) The WCJ 8 further held that, although Employer had violated the Act, Claimant was not entitled to attorney s fees or penalties in connection with the claim petition. (WCJ s May 16, 2006, decision, Findings of Fact, Nos. 36-37.) Next, based on Claimant s uncontested evidence, the WCJ granted the fatal claim petition and awarded weekly death benefits of $302.40 to Claimant and her disabled, adult daughter, representing sixty percent of Decedent s average weekly wage, the amount set forth in the Act for a widow and one dependent child, section 307 of the Act, 77 P.S. §§561, 562, as well as statutory interest and litigation costs totaling $1,085.50. (WCJ s May 16, 2006, decision, Findings of Fact, No. 47.) The WCJ also found that Employer failed to promptly investigate the fatal claim, as required by section 406.1 of the Act,6 and that Employer s contest of the fatal claim petition was not reasonable. (WCJ s May 16, 2006, decision, Findings of Fact, No. 42.) Accordingly, the WCJ awarded Claimant penalties at the rate of fifty per cent and attorney s fees of twenty percent of all compensation due and owing on that date, with payments thereafter charged to Claimant s award. (WCJ s May 16, 2006, decision, Findings of Fact, No. 45.) Both parties appealed to the WCAB, (R.R. at 151a-58a, 205a-07a), which granted Employer s request for supersedeas pending oral argument. (R.R. at 227a, 322a-23a.) Thereafter, by order dated April 12, 2007, the WCAB affirmed 6 Added by section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §717.1. 9 the WCJ s decision in all respects.7 (R.R. at 3309a-52a.) The parties have petitioned this court for review of that order.8 Claimant s appeal from the WCAB s order Claimant first argues that the WCAB erred in affirming that part of the WCJ s May 16, 2006, decision holding that the amount due Decedent under the claim petition could not be calculated because of Claimant s failure to disclose any information related to the third-party action. Claimant insists that the language of section 319 of the Act, 77 P.S. §671, unequivocally and expressly limits application of that provision to circumstances where: 1) the employer already has made payments of compensation for the work injury; and 2) the employer demonstrates that the claimant received a third-party recovery for the same injury. (Claimant s brief at 30.) Claimant asserts that Employer is not entitled to assert subrogation rights under section 319 of the Act because Employer has not made any payments 7 After the WCAB issued its order affirming the WCJ, Employer sought supersedeas from this court pending appeal; however, by order dated July 13, 2007, we denied Employer s request for supersedeas, without prejudice, for failure to comply with Pa. R.A.P. 1781(a) (stating that applications for supersedeas of an order of a governmental unit pending review in an appellate court shall ordinarily be made in the first instance to the governmental unit). 8 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S §704. 10 of compensation pursuant to the claim petition. However, the plain language of section 319 contradicts Claimant s assertions. In relevant part, section 319 of the Act states: Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer ¦. The employer shall pay that proportion of the attorney s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. 77 P.S. §671 (emphasis added). The statute provides employers an absolute right to subrogation. Kidd-Parker v. Workers Compensation Appeal Board (Philadelphia School District), 907 A.2d 33 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 676, 916 A.2d 1104 (2007). In addition, the statute unequivocally and expressly provides employer the right of subrogation to the extent of compensation owing but yet to be paid. Accordingly, Claimant s argument necessarily fails. Claimant also asserts that Employer is not entitled to subrogation because Claimant has not received and, as a matter of law, cannot receive, benefits under a third party action that are subject to subrogation under section 319 of the 11 Act. Suffice it to say that these assertions are unsupported by any evidence in the record.9 Claimant next asserts that the WCJ erred in denying her request for penalties in regard to the claim petition. The imposition of penalties against an employer under section 435 of the Act10 is at the discretion of the WCJ and is not required even if a violation of the Act is apparent on the record. Farance v. Workers Compensation Appeal Board (Marino Brothers, Inc.), 774 A.2d 785 (Pa. Cmwlth.), appeal denied, 567 Pa. 748, 788 A.2d 380 (2001). In the May 16, 2006, decision on remand, the WCJ found that Employer violated the Act by failing to promptly investigate the claim petition; however, the WCJ declined to impose penalties, citing a prior determination that Employer s delay was excusable. (WCJ s May 16, 2006, decision, Findings of Fact, No. 37.) Having carefully reviewed the record, we conclude that the WCJ did not abuse his discretion in denying Claimant s request for penalties. Claimant next maintains that the WCJ erred in failing to award attorney s fees based on Employer s unreasonable contest of the claim petition. Where the claimant succeeds in a litigated case, reasonable counsel fees are 9 Throughout her brief, Claimant insists that evidence related to any possible third party recovery is irrelevant in this case because any recovery would be limited to a claim for loss of consortium, which is not subject to subrogation under section 319. See Darr Construction Company v. Workmen s Compensation Appeal Board (Walker), 552 Pa. 400, 715 A.2d 1075 (1998). However, due to Claimant s ongoing refusal to provide any evidence to support this factual assertion, no findings could be made in this regard that are presented for appellate review. 10 Added by section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §991. 12 awarded against the employer as a cost pursuant to section 440 of the Act,11 unless the employer establishes facts sufficient to prove a reasonable basis for its contest. Weiss v. Workmen s Compensation Appeal Board (Birch), 526 A.2d 839 (Pa. Cmwlth.), appeal denied, 517 Pa. 612, 536 A.2d 1335 (1987). The reasonableness of an employer s contest is a legal conclusion based on facts found by the WCJ. Lemon v. Workers Compensation Appeal Board (Mercy Nursing Connections), 742 A.2d 223 (Pa. Cmwlth. 1999), appeal denied, 562 Pa. 676, 753 A.2d 822 (2000). We conclude that the WCAB erred in affirming the denial of attorney s fees, where Employer s initial answer effectively admitted the allegations in the claim petition, and Employer presented no evidence establishing a reasonable basis to contest the claim. Merva v. Workers Compensation Appeal Board (St. John the Baptist R.C. Church), 784 A.2d 222 (Pa. Cmwlth. 2001). Section 440(a) of the Act provides that attorney s fees assessed against an employer are payable on the basis of quantum meruit. 77 P.S. §996(a). To support a quantum meruit award, the WCJ is required to make findings concerning the time actually expended and the complexity of the factual and legal issues involved in the matter. Section 440(b) of the Act, 77 P.S. §996(b). Because attorney s fees were denied in this case, no findings as to the time required or the degree of difficulty of the case were made. Unfortunately, we are convinced that such findings cannot be made at this point in time because significant, relevant portions of the record are missing. The case was remanded twice in an effort to recreate the missing portions of the 11 Added by section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996. 13 record, to no avail, and the WCJ concluded in 2006 that further remand for that purpose would be fruitless. (WCJ s May 16, 2006, decision, Findings of Fact, No. 6.) In light of the Bureau s inability to recreate the record, we conclude that attorneys fees representing twenty percent of the award, which is reasonable per se under section 442 of the Act,12 is appropriate in this case, with payment of the same contingent upon counsel s compliance with orders directing him to provide third party information necessary to obtain calculation of an award for his client.13 Employer s appeal from the WCAB s order Employer argues that the WCAB erred in twice remanding Decedent s claim petition where it was properly dismissed by the WCJ due to Decedent s repeated failure to attend an IME. Section 314(a) of the Act provides as follows: The refusal or neglect, without reasonable cause or excuse, of the employe to submit to such examination or expert interview ordered by the workers compensation judge, either before or after an agreement or award, shall 12 Added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §998. Section 442 of the Act applies to attorneys fees payable by a claimant rather than by an employer. 13 However, we reject Claimant s argument that she is entitled to interest on compensation payable under the claim petition. We note that every WCJ to whom this case was assigned found the conduct of Claimant s counsel to be persistently obstructive and the cause of unnecessary delay. Section 435(d)(iii) of the Act, 77 P.S. §991(d)(iii), provides that a WCJ shall order the forfeiture of interest when the employee has caused an unreasonable delay. Moreover, although section 435(d)(iii) states that a claimant shall forfeit interest with respect to any period of unexcused delay which they have caused, 77 P.S. §991(d)(iii) (emphasis added), a claimant s conduct that rises to the level of unreasonable delay can justify a forfeiture of all interest. Miller v. Workmen s Compensation Appeal Board (Fischbach & Moore), 590 A.2d 1325 (Pa. Cmwlth. 1991). 14 deprive him of the right to compensation, under this article, during the continuance of such refusal or neglect, and the period of such neglect or refusal shall be deducted from the period during which compensation would otherwise be payable. 77 P.S. §651(a) (emphasis added). By its plain language, section 314 provides that a claimant s entitlement to compensation shall be suspended during the pendency of his refusal to attend an IME ordered by a WCJ, but it does not authorize the dismissal or denial of the claim petition in its entirety. Ross. Because Decedent was never ordered to attend an IME, the WCAB correctly concluded that the WCJ exceeded his authority by dismissing/denying the claim petition on this basis. Employer next argues that the WCAB erred in reversing the 1994 and 1999 decisions of the WCJ dismissing the fatal claim petition for lack of prosecution. The WCJ based the dismissals on Claimant s failure to attend or present any evidence at the nine hearings scheduled over a three-year period and Claimant s subsequent failure to present evidence necessary to meet her burden of proof. (WCJ s November 14, 1994 decision, Findings of Fact, No. 33; WCJ s January 6, 1999 decision, Findings of Fact, Nos. 19-21.) However, the record indicates that, from the first through the fourth hearing on the fatal claim petition, proceedings were stayed at Employer s request and over Claimant s objection; in fact, Claimant filed an appeal from the WCJ s oral order granting the stay while Employer objected to Claimant s effort to depose a medical witness. (See R.R. at 52a-53a, 294a-96a, 298a-99a, 300a-01a, 306a.) Accordingly, we conclude that the WCAB did not err in twice reversing the dismissal of the fatal claim petition and remanding for further proceedings. 15 Employer also argues that the WCJ erred and/or abused his discretion in imposing a fifty per cent penalty on the fatal claim award.14 Citing Decedent s failure to submit to an IME and Claimant s refusal to submit medical records when requested, Employer argues that Claimant was responsible for significant delays and acted in bad faith, and, therefore, Employer s violation of the Act should be excused, reduced or not calculated for the period prior to February 17, 2004, the date on which Claimant first offered evidence on the fatal claim petition. In this regard, Employer suggests, incorrectly, that the penalty was assessed against it for unreasonable delay of the proceedings. (Employer s brief at 23.) However, the WCJ awarded the penalty after finding that Employer violated section 406.1(a) of the Act, which imposes a duty on employers to promptly investigate a claim. Here, Employer s duty to investigate the claim arose in January of 1991, when the fatal claim petition was filed. The record indicates that Employer asked Claimant to provide medical records in 1994, (O.R., October 21, 1994, letter from Employer), but the WCJ found that Employer could have, and should have, initiated a records review in 1991. (WCJ s May 16, 2006, decision, Findings of Fact, No. 39.) We further note that an employer s duty to promptly investigate requires more than waiting for a claimant to submit medical evidence. 14 Section 435(d)(i) of the Act provides, in relevant part: 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. 77 P.S. §991(d)(i). 16 Geiger v. Workmen s Compensation Appeal Board (Circle Fine Art Corp.), 654 A.2d 19 (Pa. Cmwlth. 1994). Thus, although we agree that the delays and the posturing by [Claimant s] Counsel in this case borders on the absurd, (WCJ s October 16, 1989, decision, R.R. at 16a.), we conclude that Claimant s obstructive and dilatory conduct throughout the proceedings does not, as a matter of law, excuse Employer s violation of the Act. As previously indicated, the imposition of a penalty and the amount of the penalty are discretionary, and, absent an abuse of discretion by the WCJ, will not be overturned on appeal. Indiana Floral Co. v. Workers Compensation Appeal Board (Brown), 793 A.2d 984 (Pa. Cmwlth. 2002). We cannot conclude that the WCJ abused his discretion by imposing a fifty per cent penalty based on Employer s delay in investigating the fatal claim petition. See id. (upholding a fifty per cent penalty based on the employer s fourmonth delay in making payments of compensation). Again citing Claimant s refusal to provide medical records, Employer next argues that the award of attorney s fees for unreasonable contest of the fatal claim petition should be eliminated or reduced. Employer asserts that, from the time the fatal claim petition was filed, Claimant refused to turn over relevant medical information. However, Employer acknowledges that it bears the burden of presenting sufficient evidence to establish a reasonable basis for contesting a claim at the time of the contest. Cunningham v. Workmen s Compensation Appeal Board (Franklin Steel Co.), 634 A.2d 267 (Pa. Cmwlth. 1993). Here, Employer refers to no evidence that was in its possession at the time it filed its denial of the fatal claim 17 petition. Although the record suggests that Claimant breached his duty to provide medical records, see 34 Pa. Code 131.61, the record also reflects that Employer did not aggressively pursue its right to Decedent s records or offer any evidence in defense of the fatal claim petition. Instead, Employer initially insisted that the fatal claim petition could not be prosecuted until the claim petition proceeding was resolved, (see O.R., August 9, 1993, letter from Employer), and thereafter, sought its dismissal due to Claimant s unreasonable delay.15 Because Employer failed to present any evidence demonstrating that its contest was reasonable, the WCAB did not err in affirming the award of attorney s fees. Employer further argues that the WCJ erred in finding that Beth Wilson, Decedent s adult daughter, was entitled to death benefits under section 307 of the Act, 77 P.S. §§561, 562. In relevant part, section 307 provides as follows: Compensation shall be payable under this section to or on account of any child, brother, or sister, only if and while such child, brother, or sister is under the age of eighteen unless such child, brother or sister is dependent because of disability when compensation shall continue or be paid during such disability of a child, brother or sister over eighteen years of age or unless such child is enrolled as a full-time student in any accredited educational institution when compensation shall continue until such student becomes twenty-three. 15 We flatly reject Employer s assertions that Claimant was solely responsible for ongoing delay for two years before requesting an indefinite postponement in 1994. To the contrary, the record reflects that proceedings on the fatal claim petition were stayed initially, and for some time thereafter, at Employer s request. 18 77 P.S. §§561, 562. In her February 3, 2004, deposition, Sheila Wilson (Wilson) testified that her adult sister Beth was living with her parents at the time of Decedent s death in 1990 and, thereafter, lived with her mother. Wilson explained that Beth was born with Down Syndrome,16 is severely mentally retarded and is unable to support herself in any way. Wilson testified that Beth moved into a diagnostic group home about twelve months ago because Claimant could no longer attend to Beth s needs.17 Wilson stated that Claimant pays for some of Beth s care at the group home, but Wilson did not know how much. (S.R.R. at 1404a, 1410a19a.) The WCJ credited Wilson s testimony that Beth was dependent upon Decedent at the time of his death as a result of her disability.18 Therefore, although Beth is over the age of eighteen, the WCJ awarded fatal claim benefits in the amount of sixty per cent of Decedent s average weekly wage, consistent with section 307 of the Act. (WCJ s May 16, 2006, decision, Findings of Fact, Nos. 3435, Conclusions of Law, No. 7.) The WCAB affirmed, concluding that Claimant 16 Down Syndrome is a chromosome disorder characterized by, inter alia, moderate to severe mental retardation, with Alzheimer s disease developing in the fourth or fifth decade. Dorland s Medical Dictionary 1754 (29th ed. 2000). 17 At the time of Wilson s 2004 deposition, Claimant was eighty-one years old; she was blind and also suffered from heart problems and depression. (S.R.R. at 1414a.) 18 We note that the issue of dependency is a question of fact for the WCJ. Duquesne Light Co. v. Gurick, 405 A.2d 1358 (Pa. Cmwlth. 1979), and the WCJ is the final arbiter of both witness credibility and evidentiary weight, Vols v. Workmen s Compensation Appeal Board (Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994). In addition, the WCJ s fact-finding authority includes the power to draw reasonable inferences from the evidence. Solomon v. Workers Compensation Appeal Board (City of Philadelphia), 821 A.2d 215 (Pa. Cmwlth. 2003). 19 met her burden of proving dependency and disability19 through Wilson s uncontradicted testimony. Employer argues that Wilson s testimony is insufficient as a matter of law to establish dependency due to disability; Employer insists that such a finding requires expert medical testimony. However, Employer cites no authority for this assertion, and we are not persuaded to establish a heightened burden of proof in this case. We conclude that the WCJ s findings on this issue are supported by substantial evidence,20 and, therefore, the WCAB did not err in affirming this part of the WCJ s order. Finally, in its petition for review to this court, Employer asserts that the WCAB erred in failing to hold that widow s benefits are subject to the provisions of section 319 of the Act. (Petition for Review, ¶¶ 7-8.) The WCAB did not address this issue, and the record indicates that Employer did not raise this issue on appeal from the WCJ s April 15, 2006, order. Because this issue was 19 The WCAB relied on Currie v. Workmen s Compensation Appeal Board (Sharon Steel Corp.), 518 A.2d 348 (Pa. Cmwlth. 1986), which held that, to establish entitlement to compensation under section 307 of the Act, the sister of the decedent bore the burden of proving both actual dependency and disability. 20 Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Joy Global, Inc. v. Workers Compensation Appeal Board (Hogue), 876 A.2d 1098 (Pa. Cmwlth. 2005.) 20 never presented to the WCAB for consideration, we deem it waived for purposes of appellate review.21 Pa. R.A.P. 1551. Claimant s appeal from the trial court s orders On May 16, 2007, pursuant to section 428 of the Act,22 Claimant filed in the trial court a praecipe to enter judgment on the WCJ s fatal claim award in the amount of $517,958.41, including penalties, interest and attorneys fees, and a praecipe for a writ of execution in the amount of $517,958.41, plus $26,140.16 in interest and $1,634.45 in costs.23 (O.R., S.R.R. at 1428a-30a.) On May 24, 2007, Employer filed a motion to open/strike the judgment. (S.R.R. at 1434a-47a.) On June 11, 2007, Claimant also filed a praecipe for a writ of execution in the Montgomery County Court of Common Pleas. (S.R.R. at 1431a-32a.). On July 2, 2007, Employer issued and hand delivered a check to Claimant in the amount of $545,733.02, the total set forth in the writ of execution. (See S.R.R. at 1452a-55a, 1459a, 1464a-65a, 1497a.) By order dated July 12, 2007, the trial court granted Employer s motion to open/strike the judgment. (S.R.R. at 1505a.) On July 20, 2007, Claimant filed an emergency motion to 21 We do not hold that Employer has waived its absolute right to subrogation under section 319 of the Act, only that Employer has not preserved any issues related to that right in the present appeal. 22 Added by section 6 of the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. §§921 and 951. 23 Rough calculations confirm that the amount of $517,958.41 represented weekly compensation due from September 1990 to May 2007 (approximately 811 weeks at $302.40, totaling $245,246.40), plus a fifty per cent penalty and attorney s fees of twenty per cent. 21 reconsider and vacate the July 12th order striking judgment, and, on August 7, 2007, Claimant appealed the July 12th order to Superior Court.24 (S.R.R. at 1509a.) Also on July 20, 2007, Claimant and her counsel endorsed Employer s hand delivered check. (S.R.R. at 1497a.) Nevertheless, asserting that Employer owed Claimant and her counsel additional counsel fees and costs, Claimant refused to mark the outstanding judgments satisfied and proceeded with collecting upon the judgments. Employer issued additional checks to Claimant via automated delivery on July 3l, 2007. After Claimant s counsel alleged he did not receive those checks, Employer issued manual checks to Claimant in the amounts of $241.92 and $2,072.73 and $1,174.50. Employer attempted to hand deliver the checks to Claimant s counsel on August 9, 2007, but counsel was unavailable at his office address at that time.25 (S.R.R. at 1468a, 1478a, 1499a-1502a.) On August 14, 2007, Employer filed a petition for a special injunction, alleging that it paid Claimant $545,733.02 and attempted to resolve the matter amicably, but Claimant refused to mark the $517,958.41 judgment satisfied and threatened to file the judgment in counties throughout the Commonwealth. Employer requested an order instructing Claimant to mark the judgment satisfied 24 The record reflects that the trial court granted Claimant s emergency motion and vacated its July 12th order by order dated August 7, 2007, the same date that Claimant filed the appeal to Superior Court. The record indicates that the August 7th order was not filed until August 13, 2007. (O.R.) 25 During the relevant period, Claimant scheduled Sheriffs sales which eventually were discontinued. 22 and prohibiting Claimant from entering the judgment in any other county, including Philadelphia County. (S.R.R. at 1488a-95a.) On September 12, 2007, the trial court granted Employer s petition for special relief. The trial court concluded that: 1) Employer will suffer irreparable harm if Claimant is permitted to enter the judgment in any other county in the Commonwealth, including Philadelphia; 2) Employer does not have an adequate remedy at law; and 3) greater injury will be inflicted upon Employer by the denial of temporary injunctive relief than would be inflicted upon Claimant by the granting of such relief. See Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981). The trial court issued an order prohibiting Claimant from re-entering the judgment in Philadelphia County and from entering the judgment in any other county of the Commonwealth; the order also directed Claimant to mark the judgment satisfied within ten days. (S.R.R. at 1512a-13a.) The order states that the special injunction shall continue in effect until further order of the court. Claimant appealed this order to Superior Court, (S.R.R. at 1514a-15a), and did not comply with the directive to mark the judgment satisfied. On December 11, 2007, Superior Court transferred Claimant s appeals from the trial court s orders to Commonwealth Court. (S.R.R. at 1516a.) Thereafter, this court consolidated these two appeals with the parties pending appeals from the WCAB s order. (S.R.R. at 1517a-18a.) 23 On appeal from the trial court s orders, Claimant first argues that the trial court did not have jurisdiction to issue its July 12, 2007, order granting Employer s petition to open/strike judgment. However, the record reflects that the trial court s July 12, 2007, order was vacated by the trial court on August 7, 2007. (O.R.) Accordingly, this issue is moot. Claimant also argues that the trial court was without jurisdiction to enter its September 12, 2007, order. According to Claimant, Employer never filed, served or identified any parties involving the essential civil action necessary to seek injunctive relief. (Claimant s brief at 33.) Thus, Claimant maintains that the September 12th order was issued without affording Claimant notice and a meaningful opportunity to be heard, in violation of her right to due process as well as various provisions of the Act. Claimant further argues that the trial court lacked personal and subject matter jurisdiction to issue this order. To the extent Claimant argues that Employer failed to serve Claimant personally, and that notice to her counsel was not sufficient, we note that Pa. R.C.P. No. 440(a)(1)(i) provides that copies of all legal papers other than original process shall be served by handing or mailing a copy to or leaving a copy for each party at the address of the party s attorney of record. Moreover, the record establishes that notice was served on Claimant s counsel, who participated in the hearing on Employer s petition for injunctive relief. We also note only that Claimant was the party who invoked the trial court s jurisdiction over this matter. Having rejected Claimant s argument, we affirm the trial court s September 12, 2007, order. 24 In conclusion, as set forth in the foregoing opinion, we reverse the WCAB s order insofar as it affirms the denial of attorneys fees to Claimant with respect to the claim petition. We affirm the WCAB s order in all other respects. The trial court s order of September 12, 2007, also is affirmed.26 26 Finally, we note that the egregious conduct of the parties counsel in this case does not go unnoticed by this court. We here address but a fraction of the deplorable conduct reflected by this record. First, we point out that Claimant s counsel has repeatedly misrepresented facts to the tribunals below and to this court, as evidenced by the following. Claimant s counsel represents to this court that his client signed an affidavit indicating that there is no third party recovery information. (Claimant s brief, p. 46.) The affidavit actually states, Neither I, nor my deceased husband, were ever served with any process, proceedings, or petitions at any time whatsoever by my husband s employer and/or its insurance carrier ¦ or attorneys. ¦ I have no information regarding third party lawsuits that allegedly involve decedent s work-related injury. (S.R.R. at 1519a-20a.) According to Claimant s daughter, and as confirmed by the affidavit itself, at the time Claimant signed this document, she was blind, as well as physically and mentally unable to appear or participate in any legal proceeding whatsoever due to [her] physical and mental health. (R.R. at 1519a.) One wonders whether Claimant understood what she was signing, whether she was aware that she had been substituted as the plaintiff in the third party action, whether she was confused, or misinformed, as to the progress of these cases or whether her attorney suborned perjury. Claimant s counsel represents to this court that Decedent was never paid any compensation for a prior back injury but rather was paid sickness and accident benefits, (Claimant s brief p. 23), apparently forgetting his admission to the contrary during the March 2, 1987, hearing, (S.R.R. at 1146a), and the fact that the record includes the notice of compensation payable for that injury, (S.R.R. at 1122a), as well as the decision modifying those benefits from total to partial. (S.R.R. at 1098a-1102a.) Claimant s counsel defiantly ignored the orders of the WCJ and the WCAB directing him to produce information relevant to Employer s absolute right to subrogation. Indeed, in his 1989 decision, the WCJ characterizes Claimant s actions as an abuse of the workers compensation system to further her third party litigation. (R.R. at 16a.) With respect to Claimant s attempt to recover monies already paid, we cite the trial court s admonition that such conduct might subject Claimant s counsel to an action under (Footnote continued on next page ¦) 25 _____________________________ ROCHELLE S. FRIEDMAN, Judge (continued ¦) the Dragonetti Act, Section 8351 of the Judicial Code, 42 Pa. C.S. §8351 (creating a cause of action for wrongful use of civil proceedings and prescribing both compensatory and punitive damages). (S.R.R. at 1480a.) In addition, we note that the briefs of Claimant s counsel indicate that he either is unfamiliar or unconcerned with the Rules of Appellate Procedure. For example, Claimant s Statement of Jurisdiction is eleven pages long and is more akin to a combined procedural history and summary of the argument than to the precise citation to authority conferring jurisdiction on this court that is required by the rule. Pa. R.A.P. 2114. We also are compelled to add that the lack of clarity in Claimant s briefs, made worse by a failure to use punctuation (the first sentence ends on the second page), employ any rules of grammar or separate purported arguments into paragraphs, unnecessarily transformed the process of appellate review into a challenge not heretofore presented. With respect to Employer s counsel, we note that, although Employer contributed to the delay of these proceedings, counsel disingenuously (to be generous) attributed full responsibility for the delay to Claimant and sought to penalize Claimant for the same. More important, this record calls into question the efforts of Employer s various counsel to diligently represent his client: during the course of counsels representation, Employer presented virtually no defense to either petition over the course of twenty-five years, other than to complain about the conduct of Claimant s attorney. In light of the foregoing, we direct counsel s attention to the following Rules of Professional Conduct: Rule 1.3 (Diligence); Rule 3.1 (Meritorious Claims and Contentions); Rule 3.2 (Expediting Litigation); Rule 3.3 (Candor Toward the Tribunal) and Rule 8.4 (Misconduct). 26 IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Wilson, Deceased; Ann Wilson, : Widow, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Allied Corporation [Honeywell Corp.] : and Travelers Insurance Company), : Respondents : : : : v. : : Workers' Compensation Appeal Board : (Wilson), : Respondent : No. 893 C.D. 2007 Allied Signal, Inc. (Honeywell), Petitioner Ann Wilson and James Wilson, Deceased, Appellant v. Travelers Insurance Company and Allied Signal, Inc. Ann Wilson, Dependent Widow; James Wilson, Deceased, Appellant v. Allied Signal, Inc. (Honeywell, Inc.) and Travelers Insurance Company : : : : : : : : : : : : : : : : No. 989 C.D. 2007 No. 2297 C.D. 2007 No. 2298 C.D. 2007 ORDER AND NOW, this 8th day of July, 2008, the order of the Workers Compensation Appeal Board, dated April 12, 2007, is hereby affirmed as modified pursuant to the foregoing opinion. The order of the Court of Common Pleas of Philadelphia County, dated September 12, 2007, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.