Williamette Industries v. Workmen's Compensation Appeal Board

647 A.2d 665, 167 Pa. Commw. 164, 1994 Pa. Commw. LEXIS 509
CourtCommonwealth Court of Pennsylvania
DecidedAugust 29, 1994
StatusPublished

This text of 647 A.2d 665 (Williamette Industries 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
Williamette Industries v. Workmen's Compensation Appeal Board, 647 A.2d 665, 167 Pa. Commw. 164, 1994 Pa. Commw. LEXIS 509 (Pa. Ct. App. 1994).

Opinion

RODGERS, Senior Judge.

Williamette Industries (Employer) petitions for review of an order of the Workmen’s Compensation Appeal Board (Board) that reversed a referee’s decision denying James E. Lockett’s (Claimant) claim petition. We affirm.

Claimant sustained an injury to his right wrist on November 21,1989. After an x-ray was taken, Claimant’s wrist was wrapped and he went on light duty for two days. During 1989, Claimant had begun experiencing pain and numbness in his wrists and arms. On June 25, 1990, Claimant could no longer work due to a condition diagnosed as carpal tunnel syndrome. Claimant subsequently underwent surgery on his right hand on July 31, 1990, and on his left hand on March 21,1991.

A notice of compensation payable was issued in July, 1990, setting forth an injury date of November 21, 1989, and providing Claimant with total disability benefits at the 1989 maximum rate of $399.00. Employer also provided Claimant with a fifteen cents per mile reimbursement for travel to obtain certain medical treatment.

On February 15, 1991, Claimant filed a claim petition, averring that the date of injury on the notice of compensation payable was incorrectly noted as November 21, 1989. Claimant asserted that his date of disability, June 25,1990, was the proper date of injury; thus, his rate of compensation should be $419.00, the maximum compensation rate for 1990, not the 1989 rate of $399.00. Claimant also claimed that Employer should be required to increase the mileage reimbursement rate to conform to the applicable Internal Revenue Code Standard Mileage Rate (IRCSMR). Finally, Claimant requested attorney’s fees, alleging an unreasonable contest.

After hearing, at which only Claimant testified, the referee concluded that Claimant had failed to carry his burden of proof:

[TJhat his injury occurred at any time other than in 1989; Claimant has failed to sustain his burden of proof to show that Defendant’s voluntary mileage reimbursement rate of 15<t per mile was unreasonable; Claimant has failed to sustain his burden of proof to show that Defendant’s contest of Claimant’s Claim Petition was unreasonable....

(Referee’s Decision, p. 33a.) Based on this conclusion, the referee dismissed the claim petition and Claimant appealed to the Board.

The Board reversed, holding that Claimant’s receipt of total disability benefits should be at the 1990 rate. The Board reasoned [667]*667that carpal tunnel syndrome, being the type of condition that results in total disability over time, should be evaluated pursuant to Divine Providence Hospital v. Workmen’s Compensation Appeal Board (Bonner), 75 Pa.Commonwealth Ct. 565, 462 A.2d 917 (1983). In Divine Providence, the court held that, in a case where a single incident cannot be identified as the cause of injury, a claimant does not suffer a compensable injury until the claimant leaves his employment, i.e., the date of injury is the last day the claimant worked and is also the date of total disability. See also Refiners Transport and Terminal v. Workmen’s Compensation Appeal Board, 159 Pa.Commonwealth Ct. 48, 632 A.2d 979 (1993). The Board noted that Claimant’s injury in November, 1989, was in fact only an injury to Claimant’s right wrist and that the referee’s Finding of Fact l,1 concerning the November injury, was not supported by substantial evidence.

The Board also reversed the referee’s denial of an increase in the mileage reimbursement. Deciding only the narrow issue of what constitutes an appropriate rate, the Board followed its own precedent2 and ordered Employer to pay Claimant mileage reimbursement according to the IRCSMR.

The Board also recognized that, although the referee assigned the burden incorrectly concerning whether attorney’s fees should be awarded for an unreasonable contest, the issue was decided correctly. The determination of a date of injury required litigation.

Employer now appeals to this Court,3 raising the following issues: (1) whether the Board erred in holding that the date of injury under The Pennsylvania Workmen’s Compensation Act (Act)4 is the last day a claimant works and the date of total disability; and (2) whether the Board erred in holding Employer responsible for an increased rate of reimbursement, where such reimbursement is voluntary and not required under the Act.5

The critical question here is when did Claimant’s injury occur. Employer argues that the incident in November, 1989, is the moment in time that the injury occurred and, thus, the 1989 rates apply. As explained above, the referee’s findings of fact relating to the incident were found by the Board not to be supported by substantial evidence, and we agree.' The only evidence of record concerning the November incident is Claimant’s testimony, wherein he stated:

A In 1989 I complained about pain in my hand. I believe that day they sent me over to the Medical Center, I jammed my wrist, and when I went there, the doctor took x-rays. He thought maybe I had a chipped bone in my wrist, and he took x-rays, everything looked fine. He said, T think you have a bad bruise, let’s wrap it up and you should be all right.’ I think I went on light duty for two days, and I did mention the thought that perhaps could this possibly be carpal tunnel. He said, ‘No.’ He said, ‘The only way you can tell something like that is through an EMG.’
Q So, you went back to work?
A Correct.

(Hearing 9/19/91, p. 5.) Claimant went on to explain that he did not seek further treatment until April, 1990, when he sought relief from the worsening pain and numbness in both wrists. Claimant also indicated that the [668]*668pain in his wrists had preceded the November incident.

Employer does not contest that Claimant suffers from carpal tunnel syndrome. Because carpal tunnel syndrome is a work-related injury that is insidious in origin and progresses much like an occupational disease, we look to continuous trauma cases, examining how the court has treated them with reference to identifying the date of “injury.” See USAir, Inc. v. Workmen’s Compensation Appeal Board (Schwarz), 160 Pa.Commonwealth Ct. 100, 634 A.2d 714 (1993) (McGinley, J., concurring). Although the issue raised in USAir and the cases cited therein concern a claimant’s timely notice to the employer of a work-related injury, Judge McGinley’s concurring opinion makes clear that “continuous trauma cases are generally treated as repeated new injuries or aggravations. The last day of employment or the last day of work before medical treatment is usually identified as the date of ‘injury.’” Id. at 120, 634 A.2d at 724.

Employer cites various cases6

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Refiners Transport & Terminal v. Workmen's Compensation Appeal Board
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Bluebook (online)
647 A.2d 665, 167 Pa. Commw. 164, 1994 Pa. Commw. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williamette-industries-v-workmens-compensation-appeal-board-pacommwct-1994.