Whitesell v. WCAB (Staples, Inc.), No. 205 C.D. 2013, Filed 7/10/2013.
The employee sustained a low back injury on October 15, 2003 which was accepted by an NCP as a lumbar strain/sprain. She later succeeded on a Review Petition to include a disk injury and surgery. The widower of the employee ultimately filed a Fatal Claim Petition alleging that his wife died on June 13, 2010 (347 weeks after the injury) as result of medications prescribed for the work injury. The WCJ dismissed the widower's petition because the employee's death did not occur within 300 weeks of the date of her work injury and the WCAB affirmed. To the Commonwealth Court, the widower argued that the 300 weeks limitation should run from the date that the additional injuries occurred and not from the date of the original injury. The widower's argument was rejected by the Commonwealth Court which cited three earlier decisions where similar arguments had been rejected.
The Commonwealth Court makes clear that the 300 weeks limitation of section 301(c)(1) of the Act will be enforced from the date of the original compensable injury, regardless of the situation.
Channellock, Inc. v. WCAB (Reynolds), No. 2027 C.D. 2011, Filed 5/8/2013. Ordered Published 7/10/2013.
Employee injured his back and after undergoing surgery he returned to work in a modified duty position. After a series of events he was moved by the employer to a job where he was not required to do any work. While in the "no duty" job, the employee had difficulty staying awake because of the prescription medication he was taking for the injury. Employer reprimanded the employee for falling asleep informing him that the next time he fell asleep would result in a termination of his employment. The employee stopped working in the no duty job on the instruction of his doctor and a Reinstatement Petition was filed. In the first litigation between the parties, the Commonwealth Court affirmed the granting of the Reinstatement Petition concluding that the no duty position was not within the employee's capabilities. The employee then returned to the no duty position again but again stopped working and sought a new reinstatement. In the second litigation between the parties, the employer argued that the situation involving the no duty job was different because its discipline policy was now progressive and four instances of falling asleep would be required for the employee to be discharged. The Judge granted the employer's modification based upon the availability of the no duty job. The Board reversed concluding that the no duty job had already been determined by the Commonwealth Court to be unavailable because of the risk that the employee would be fired for falling asleep on that job. On appeal to the Commonwealth Court, the employer's arguments were rejected and the decision of the Board was affirmed.
The employer attempted to persuade the Commonwealth Court that collateral estoppel (a rule which prevents the same parties from re-litigating an identical issue a second time) did not apply to the issue of whether the no duty job was available to the employee in round two of the litigation. The Court rejected this argument noting that the new policy could still result in termination from employment for sleeping on the job although now requiring four violations. The Court also rejected the employer's argument that it was entitled to a suspension because the employee walked away from the no duty job he was performing. This case illustrates the increased difficulty in changing and re-offering a job after that job is determined not to be available within the employee's capabilities by a judge in prior litigation.
Sara L. De Long