Atkins v. Workmen's Compensation Appeal Board

651 A.2d 694, 1994 Pa. Commw. LEXIS 686
CourtCommonwealth Court of Pennsylvania
DecidedDecember 15, 1994
StatusPublished
Cited by14 cases

This text of 651 A.2d 694 (Atkins v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkins v. Workmen's Compensation Appeal Board, 651 A.2d 694, 1994 Pa. Commw. LEXIS 686 (Pa. Ct. App. 1994).

Opinion

KELLEY, Judge.

Dale W. Atkins (claimant) appeals an order of the Workmen’s Compensation Appeal Board which affirmed a referee’s decision dismissing claimant’s claim petition.

Claimant filed a claim petition alleging the occurrence of a work-related injury on April 24, 1992, while in the employ of Geo-Con, Inc., (employer) as an operating mechanic. Claimant alleged that he' fell and struck a piece of machinery which resulted in bruised ribs and pneumonia. The claim petition stated that the injury occurred in Columbus, Georgia and that notice was given to claimant’s acting superintendent on the date of injury.

Employer filed a timely answer denying the allegations of the claim petition. After two hearings, the referee made the following relevant findings of fact:

5.The initial hearing was held before your Referee on October 22,1992, at which time claimant testified that he was using a high pressure hose on April 24, 1992 when the hose became tangled and he fell sustaining the injuries which are alleged. He maintained that the incident was witnessed and that his supervisor took him to the hospital in Columbus, Georgia. He was treated for bruised ribs at that facility, but then saw a Dr. Kilpatrick at Mon Valley Hospital in Pennsylvania. He was advised not to return to work by that physician.
On May 4, 1992, claimant awoke in the middle of the night with difficulty breathing. He was admitted at Mon Valley Hospital for four days and diagnosed with pneumonia. He thereafter returned to work on June 24, 1992 and has worked regularly.
On cross-examination, claimant stated that he was hired in Pennsylvania, but that the alleged injury occurred in Georgia. It was his understanding that he would be working out of state and in other jurisdictions inasmuch as he was hired on a “per job basis”.
Claimant also acknowledged that the injury was to the left rib area, but that the pneumonia apparently affected the right lower lobe of the lung.
Claimant submitted various medical records from Dr. Kilpatrick and the Emergency Center in Columbus, Georgia. Your Referee notes that the note from the Emergency Center is dated April 24 and it only indicates that claimant is to “restrict activity” for 48 hours. This restriction appears to be on the basis of the rib injury not the pneumonia problem. The August 6, 1992 report of Dr. Kilpatrick indicates that claimant was unable to clear the respiratory secretions in his lungs because of pain due to the bruised ribs. This is the reason why he developed pneumonia and treatment with antibiotics was necessary. Dr. Kilpatrick acknowledges a return to work as of June 24, 1992.
6. Defendant submitted records from Mon Valley Hospital and included therein is chest x-ray of May 4, 1992. This indicates that the left lung is clear, but that the right middle and lower lobe contain infiltrates (pneumonia). Your Referee notes that the claimant acknowledged, and the record from Mon Valley Hospital confirm, that the injury was to the left posteri- or ribs.
7. Claimant’s counsel made a request for the assessment of counsel fees, interest and penalties, for which the defendant requested an additional hearing. This was granted and the final hearing was held December 7, 1992, at which time claimant testified that his home office in Monroe-ville and that he was employed at that location. He worked therefore [sic] four years but would frequently be sent to other states for employment on a periodic and temporary basis. He stated that his com[697]*697pany does not maintain any offices in Georgia but that his work was to be performed in Georgia at the time of his injury.
8. Based upon a review of all the evidence, your Referee rejects the medical evidence submitted by the claimant and finds that a compensable work injury has not occurred. Claimant testified that he fell and bruised his left ribs, and the defendant has been unable to rebut the actual occurrence of the incident. However, the claimant’s evidence fails to substantiate any period of disability connected with this purely physical injury. Claimant does allege the development of pneumonia due to the bruised ribs, but this statement of opinion is rejected as not credible. The medical evidence indicates that claimant was off work due to the pneumonia rather than the braised ribs. Accordingly, you Referee finds as a fact that a compensable injury has not occurred.
9. The defendant’s medical evidence is accepted insofar as claimant’s braised ribs occurred on the left, but the pneumonia was present on the right lung. This is inconsistent with the reasoning of Dr. Kil-patrick that the bruised ribs caused claimant to be unable to clear his respiratory secretions.
10. Your Referee also finds as a fact that claimant was hired in the sate [sic] of Pennsylvania based upon claimant’s testimony. However, under Section 305.2 of the Act, his employment was “principally localized” in the state of Georgia. Claimant acknowledged that he was specifically going to perform work in Georgia for his employer at the time of his injury. Although he maintained working out of Mon-roeville, PA., his work was centered in Georgia at the time of his injury. Under Section 305.2(a)(3), the Pennsylvania Workmen’s Compensation Act would apply if claimant is working under a contract of hire made in Pennsylvania with employment principally localized in another state whose workers’ compensation law is not applicable to this employer. There has been no evidence presented by the claimant that the workers’ compensation law in the sate [sic] of Georgia is inapplicable in this case. The incident occurred in that state and your Referee takes judicial notice of the fact that Georgia would therefore have jurisdiction.
Your Referee also finds that claimant’s employment is not principally localized in Pennsylvania. He was also not working in employment outside the United States and Canada.

Based upon the above findings of fact, the referee concluded that (1) claimant failed to sustain his burden of proof on a claim petition inasmuch as substantial, competent medical evidence was not believed by the referee to support an award of benefits; (2) the worker’s compensation law in the state of Georgia would apply and Pennsylvania has no jurisdiction to grant claimant’s benefits; (3) no other provisions of section 305.2 of the Act apply so as to bring claimant’s claim within the jurisdiction of the state of Pennsylvania; and (4) employer’s contest was reasonable and there was no violation of the Act or regulations.

Claimant appealed to the board which affirmed the referee’s decision. This appeal followed.1

On appeal, claimant raises the following • issues for our review:

1. Whether an employer who fails to raise lack of jurisdiction in their answer to a claim petition and fails to appear at any hearings to offer testimony, may assert lack of jurisdiction at a workers’ compensation hearing;
2. Whether Pennsylvania has jurisdiction when an employer maintains its principal place of business in Pennsylvania, hires an employee in Pennsylvania, but sends him to a temporary location for a temporary job;
3.

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Bluebook (online)
651 A.2d 694, 1994 Pa. Commw. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkins-v-workmens-compensation-appeal-board-pacommwct-1994.