Lamberson v. Workmen's Compensation Appeal Board

654 A.2d 668, 1995 Pa. Commw. LEXIS 87
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 13, 1995
StatusPublished
Cited by9 cases

This text of 654 A.2d 668 (Lamberson 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
Lamberson v. Workmen's Compensation Appeal Board, 654 A.2d 668, 1995 Pa. Commw. LEXIS 87 (Pa. Ct. App. 1995).

Opinion

RODGERS, Senior Judge.

Ray F. Lamberson (Claimant) and INA/CIGNA (Cigna) both filed petitions for review of an order of the Workmen’s Compensation Appeal Board (Board) that affirmed in part and reversed in part a decision by a referee. We affirm in part and reverse in part.

On September 25, 1981, Claimant suffered a work-related fracture below his right hip, while he was employed by Pennsylvania Glass Sand Corporation (Pa Glass). Cigna, as Pa Glass’ workmen’s compensation carrier, paid Claimant disability benefits from September 26, 1981 through March 8, 1982, and again from October 2, 1982 through November 4, 1982. A final receipt was signed on December 8, 1982.

On September 13, 1985, Pa Glass underwent reorganization and changed its name to U.S. Silica. U.S. Silica engaged State Workmen’s Insurance Fund (State Fund) as its workmen’s compensation insurance carrier. Claimant remained an employee of the new corporation but, in 1985 or 1986, changed job duties to ones that involved heavier manual labor. In 1985 Claimant began experiencing symptoms in his knee and hip and he began treatment with Nicholas E. Mihelic, M.D., in 1988. On September 10, 1990, Dr. Mihelic performed a total right hip replacement. In April of 1991, Claimant returned to work with some restrictions and an alleged slight earning loss.

Cigna paid the medical care costs totalling $82,492.88 and did not contest the causal relationship between the 1981 injury and the 1990 total hip replacement procedure. However, Cigna refused to pay total disability benefits in 1990 because it believed that Claimant’s claim was time barred; more than three years had elapsed since Claimant had executed a final receipt in 1982. Therefore, on November 16, 1990, Claimant filed the following two petitions: (1) a claim petition against U.S. Silica and State Fund, alleging a right hip injury on August 31,1990; and (2) a petition to set aside final receipt, alleging that he had not fully recovered from his original 1981 hip fracture.

[670]*670At the hearings before the referee, Claimant testified on his own behalf and presented the deposition testimony of Dr. Mihelic. Cig-na offered the deposition testimony of Susan Roberta Freedman, D.O., and U.S. Silica and State Fund presented the deposition testimony of Myron E. Sevick, M.D. The referee credited the testimony of Dr. Mihelic and Dr. Freedman and found Dr. Sevick’s testimony credible only to the extent that it corroborated that of Drs. Mihelic and Freedman.

The referee determined that Claimant had sustained a new injury in 1990. Specifically, the referee found in part that:

21. After carefully reviewing all of the testimony and evidence in this case, this Referee finds persuasive and convincing such testimony and evidence that establishes that:
(a) The heavy, manual labor activities that the Claimant performed at work between 1985 and August 31, 1990 materially contributed to the increasing and worsening symptoms in the Claimant’s right hip that caused his hip replacement surgery on September 10, 1990.
(b) The last date to which Claimant was exposed to the multiple repetitive trauma that caused his total hip replacement was August 31, 1990_ The Referee, therefore, specifically finds that the Claimant’s date of injury was August 31, 1990. The parties have stipulated and it is found that his average weeHy wage was $455.62 as of August 31, 1990.
(c) Claimant was temporarily totally disabled from September 1, 1990 to April 8, 1991.
(d) Claimant returned to work, with restrictions, but at no loss of earnings on April 8, 1991.
(e) State Workmen’s Insurance Fund is the insurance carrier of record on the date of injury, INA/CIGNA’s coverage having expired on September 13, 1985.
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24. INA/CIGNA paid medical expenses as set forth in Claimant’s Exhibits C-5 and C-6. Said payments total $32,492.88.

(Referee’s decision, p. 7.)

Because the referee concluded that Claimant had met the burden of showing that he had sustained a new work-related injury, the referee dismissed the petition to set aside the final receipt and released Pa Glass and Cigna as defendants in the claim petition action. The referee held that U.S. Silica and State Fund were the responsible parties liable for the payment of compensation benefits together with interest, relating to the 1990 work-related injury. The referee also concluded that State Fund was the insurance carrier responsible for any unpaid medical expenses associated with the 1990 injury. The referee further found that Claimant was not entitled to attorney’s fees because State Fund, by relying on Dr. Sevick’s opinion, had a reasonable basis for contesting Claimant’s petition; thus, Claimant’s counsel received payment in accordance with a fee agreement, said fees to be deducted from compensation payable. The referee also directed Cigna to seek reimbursement for any overpayment of medical expenses from the Supersedeas Fund, believing its claim for subrogation did not come within the purview of Section 319 of The Pennsylvania Workmen’s Compensation Act (Act).1 Lastly, the referee ordered the [671]*671suspension of compensation benefits as of April 9, 1991, having found that Claimant was able to return to work without a loss of earnings.

Both Claimant and U.S. Silica appealed from the referee’s decision. The Board affirmed in all respects, except with regard to the referee’s conclusion that Cigna should apply to the Supersedeas Fund. The Board concluded that Cigna had no right to subro-gation pursuant to Section 319 of the Act because the facts did not establish that State Fund was a third party tort-feasor, yet its lack of a right to subrogation under the Act did not extinguish State Fund’s obligation to pay Claimant’s medical bills resulting from the new injury. Therefore, the Board held that State Fund was hable to Cigna for the $32,492.88 payment. The Board also denied Claimant’s counsel a right to twenty percent of the reimbursement amount and rejected Claimant’s argument that he was entitled to partial disability benefits rather than a suspension, based on an alleged earnings disparity.

Claimant’s and Cigna’s petitions for review of the Board’s order were consolidated for our review.2 The following enumerated issues, as stated by Claimant in his brief, incorporate the issued raised by Cigna.

1. If Cigna has no right to subrogation, is not the Claimant entitled to an award from the hable defendant for ah medical expenses causally related to his injury?
2. If Claimant is entitled to an award of medical expenses should statutory interest be assessed on the amount of unpaid medical expenses?
3. Does Cigna have a right to subrogation for medical expenses it paid where the cause of the medical expenses resulted from an injrny sustained by the Claimant in the course of his employment with a third party not insured by Cigna, i.e., U.S. Silica?
4. Is U.S. Silica and it’s [sic] insurer, the State Fund, hable for payment of interest on medical expenses regardless of whether those expenses are payable directly to the Claimant or to Cigna?
5.

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Bluebook (online)
654 A.2d 668, 1995 Pa. Commw. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamberson-v-workmens-compensation-appeal-board-pacommwct-1995.