Commonwealth Court upholds decision in favor of volunteer firefighter.

After several years of litigation, the Commonwealth Court has upheld the decisions of a Pennsylvania Workers Compensation Judge, which was affirmed by the Workers Compensation Appeal Board in favor of an injured volunteer firefighter.

After several years of litigation, the Commonwealth Court has affirmed in all regards an award in favor of a volunteer firefighter for scarring, lost wages and medical benefits. The matter has been handled in all regards by Attorney Timothy P. Brennan.

THE OPINION FOLLOWS:

Upper Mount Bethel Township (Township) petitions for review of the August 13, 2014, order of the Workers’ Compensation Appeal Board (WCAB) affirming the decision of a workers’ compensation judge (WCJ) that granted the claim petition filed by John Gmelch (Claimant) and ordered Township to pay Claimant total disability benefits from the date of injury, October 11, 2010, through April 15, 2011, at which time benefits were suspended. The WCJ further awarded Claimant 50 weeks of compensation for serious facial disfigurement, medical expenses, and litigation expenses and ordered Township to pay Claimant a penalty of $2,500. We affirm.

Claimant is a member of Township’s volunteer fire company. Claimant’s duties include responding to fire calls, participating in fundraisers, cleaning the firehouse, maintenance, and administrative functions. (WCJ’s Findings of Fact, Nos. 1-2.)

Claimant was in charge of finding a new firetruck for Township to purchase. On the afternoon of October 11, 2010, Claimant went to the firehouse, met with the fire company’s president and fire chief, and showed them plans and pricing for a new firetruck. At that meeting, Claimant was instructed to attend the fire company’s board of directors (Board) meeting that evening at the firehouse and present the bid for a new firetruck. (Id., No. 3.)

Claimant went to the Board meeting as instructed and waited outside the meeting room to be called in to make his presentation. While outside, Claimant could hear Ray Romano, another member of the fire company, speaking loudly. Romano was discussing an accident involving his son, Zach Romano (Zach), in which a firetruck was destroyed. Around 9:00 p.m., the doors opened, and Claimant assumed the president was coming out to get him for his presentation. However, the first person out of the door was Romano, who attacked Claimant, punching him repeatedly in the face. Claimant yelled for help and grabbed Romano. Claimant was then tackled by Romano’s other son, Joshua Romano (Joshua). (Id., Nos. 4-5.)

Claimant was taken by ambulance to the Pocono Medical Center and remained hospitalized for two days. As a result of the assault, Claimant sustained head and facial trauma and loss of consciousness. His injuries included a bilateral nasal bone fracture and a right orbital blowout fracture. Claimant underwent surgery to repair the fractures and was advised to remain off work for 10-12 weeks. (Id., No. 6.)

As a result of the surgery and fractures, Claimant has an asymmetry in his face of the upper right side of the maxilla. Claimant has a prominence of the superficial portion of the inferior orbit, which interferes with the inferior orbital field of vision, and has pain on the right side of his face with a paresthesia in the upper right lip. Claimant also suffered multiple, irregular fractures to four teeth, which may require root canal and crowns in the future. Claimant also has temporomandibular joint dysfunction with popping in the right condylar area of the jaw. Claimant suffered a concussion and a torn retina, has reduced visual acuity when looking down, blurry vision from scar tissue, and right shoulder tendinitis. Claimant incurred medical bills in the amount of $30,646.69. (Id.)

Romano and Joshua pled guilty to criminal charges and were ordered to pay restitution in the amount of $29,000, of which Claimant has only received $3,500. Claimant was unemployed at the time of the injury and, since December 31, 2009, had been receiving unemployment compensation at a rate of $235 per week until he returned to work in a self-employed capacity on April 15, 2011. (Id., Nos. 7-8.)

On March 31, 2011, Claimant filed a claim petition alleging that on October 11, 2010, he suffered a work-related injury when he was assaulted by two fellow volunteer firefighters while performing his duties as a firefighter. Township denied the allegations.

At the WCJ’s hearing, Claimant testified about the events of October 11, 2010, at the firehouse. Claimant also submitted the May 17, 2012, medical report of Patrick Sewards, M.D., and the June 1, 2012, dental report of Ryan Buehner, D.M.D. Both reports describe Claimant’s injuries and subsequent treatment due to the assault. (See Exs. C-7, C-8.)

Township presented three witnesses. First, Joshua testified that Claimant said bad things about his brother Zach after Zach was involved in an accident while driving a firetruck intoxicated. Joshua further testified that he went to the firehouse to ensure that his father was okay and saw Claimant hitting his father in the side of the head. Joshua stated that his only role was to break up the fight. He admitted that he pled guilty to simple assault and agreed to pay restitution for Claimant’s medical bills. (WCJ’s Findings of Fact, No. 12.)

Next, Ian Kelton, a 17-year-old former junior firefighter, testified that Claimant called him and told him that he planned to confront Romano after the meeting at the firehouse. Kelton further testified that he and Joshua went to the firehouse where he saw Claimant holding Romano in a headlock. (Id., Nos. 10-11.)

Finally, Romano testified that he complained about Claimant in the meeting and, when he saw Claimant after the meeting, he pushed Claimant because Claimant was blocking his way out of the meeting. Romano stated that he pled guilty to harassment so that his son would only get charged with simple assault, instead of felony assault. Romano admitted that all of the charges against Claimant were dropped. (Id., No. 13.)

Township also presented the July 19, 2012, independent medical examination (IME) of Claimant by Scott K. Epstein, M.D. Dr. Epstein opined that Claimant had not fully recovered from the assault but was capable of returning to full-time, full-duty work without restrictions. (Id., No. 16; Ex. D-6.)

The WCJ credited Claimant’s testimony. Further, the WCJ found Claimant’s injuries and resulting disability obvious because Claimant was the victim of an assault, lost consciousness, spent two days in the hospital, and underwent multiple surgeries. Further, Claimant’s testimony was not contradicted by any officer or current member of the fire company. The WCJ found the testimony of Township’s witnesses self-interested and vindictive and, therefore, not credible. The WCJ further found that Township violated the Workers’ Compensation Act (Act) by failing to timely file an acceptance or denial of the claim with the Bureau of Workers’ Compensation (Bureau). The WCJ found all of the medical reports credible. (WCJ’s Findings of Fact, Nos. 9-10, 14-16.)

The WCJ granted Claimant’s claim petition, finding that Claimant was disabled as a result of the work-related injury and suffered serious facial disfigurement. The WCJ ordered Township to pay total disability benefits from the date of the injury through April 15, 2011, and, thereafter, suspended compensation. The WCJ further awarded compensation for serious facial disfigurement, and ordered Township to pay Claimant’s medical and litigation expenses. Further, the WCJ granted Claimant’s penalty petition, ordering Township to pay Claimant $2,500. Township appealed to the WCAB, which affirmed. Township now petitions for review of that decision.

Initially, Township contends that the WCJ erred in finding that Claimant was in the course and scope of his employment and, thus, concluding that the personal animus exception did not bar Claimant’s claim.

Section 301(c)(1) of the Act provides in pertinent part as follows:

The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe . . . arising in the course of his employment and related thereto . . . . The term “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment . . .

77 P.S. §411(1).

 

In Heath v. Workers’ Compensation Appeal Board (Pennsylvania Board of Probation and Parole), 580 Pa. 174, 860 A.2d 25, 29 (Pa. 2004), the Pennsylvania Supreme Court determined that the personal animus exception “is an affirmative defense, which the party who is defending against a claim brought under the Act has the burden of proving.”

Here, the WCJ credited Claimant’s testimony that he was assaulted during the course and scope of his employment while waiting to make a presentation to the Board. The WCJ further found Township’s witnesses not credible because they were “self-interested and vindictive.” (WCJ’s Findings of Fact, No. 14.) The WCJ determines witness credibility and the weight of the evidence and may accept or reject any witness’s testimony in whole or in part. Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Bonner and Fitzgerald), 85 A.3d 1109, 1115 (Pa. Cmwlth. 2014)Therefore, without any credible testimony, Township failed to prove personal animus. The record contains substantial evidence to support the WCJ’s finding that Claimant was injured while at the firehouse on official firehouse business. Thus, the WCJ did not err in finding that Claimant was injured in the course and scope of his employment and that the personal animus exception did not apply.

Next, Township contends that the WCJ erred in awarding total disability benefits because Claimant did not offer any medical evidence establishing a work-related disability.

In a claim petition, the claimant has the burden of proving all of the elements necessary to support an award. Id. at 1114-15. As noted previously, the WCJ determines the weight and credibility of the testimony and evidence. Id. at 1115In this capacity, the WCJ has “the authority to draw reasonable inferences from the evidence.” Id.

Here, Claimant presented the May 17, 2012, medical report of Dr. Sewards and the June 1, 2012, dental report of Dr. Buehner. Both reports describe Claimant’s injuries from the October 11, 2010, assault and the subsequent treatment. Claimant also credibly testified regarding the assault. The WCJ found that “[C]laimant’s injuries and the resulting disability are obvious as the [C]laimant was a victim of an assault, lost consciousness, spent two days in the hospital and underwent surgeries.” (WCJ’s Findings of Fact, No. 9.) There was sufficient evidence to support the WCJ’s determination that Claimant suffered a work-related injury.

Next, Township contends that Claimant’s benefits should have been suspended before April 15, 2011, because Claimant had returned to work at the firehouse prior to that date. A claimant has the burden of proving the duration and the extent of the work-related injury. Bonner and Fitzgerald, 85 A.3d at 1114-15.

Claimant testified that he did not return to the firehouse until “three, maybe four months” after the assault and did not respond to a fire call until sometime in the spring. (N.T., 4/16/12, at 30; N.T., 1/4/12, at 44.) There is no credible testimony that Claimant was capable of returning to work prior to April 15, 2011. Also, Claimant’s restriction of no work for 10-12 weeks after his surgery was not an automatic release to return to work after 12 weeks. It was a speculative timeframe and, thus, insufficient evidence to prove Claimant’s recovery after 12 weeks. See Bonner and Fitzgerald, 85 A.3d at 1116-17Because there is no evidence that Claimant was released to return to work prior to April 15, 2011, nor any evidence that Claimant resumed his full duties at the firehouse prior to that date, the WCJ did not err in refusing to suspend Claimant’s benefits before April 15, 2011, when Claimant commenced self-employment.

Next, Township contends that the WCJ erred in awarding a penalty because Claimant did not file a penalty petition or otherwise request penalties. According to 34 Pa. Code §131.121(a), (b) and (c), a penalty proceeding may be initiated by the filing of a penalty  petition, by a motion on the record in a pending proceeding, or sua sponte by the WCJ during a pending proceeding. Further, “[t]he penalty hearing may be conducted in conjunction with a hearing on the merits in a pending proceeding.” 34 Pa. Code §131.121(e).

Here, the WCJ and the WCAB both stated that Claimant amended the claim petition in his first filing memorandum to include a penalty petition for Township’s failure to timely accept or deny the work injury. (WCJ’s Findings of Fact, No. 15; WCAB’s Decision, 8/13/14, at 1.) Further, at the January 26, 2012, hearing, Claimant’s attorney stated on the record that Claimant had a pending penalty petition. (N.T., 1/26/12, at 44.)

An employee who suffers a work-related injury is required to notify his employer. Auto Service Councils of Pennsylvania, Inc. v. Workmen’s Compensation Appeal Board (Compton), 139 Pa. Commw. 466, 590 A.2d 1355, 1357-58 (Pa. Cmwlth. 1991). However, the notice requirement is satisfied by actual knowledge of an employee’s injury. Id. at 1358Once the employer has actual knowledge of an employee’s injury, the employer shall promptly investigate the injury and must accept or deny the injury within 21 days of the notice. See Section 406.1 of the Act, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §717.1(a)Croman v. Workers’ Compensation Appeal Board (Township of Marple), 706 A.2d 408, 410 (Pa. Cmwlth. 1998) (stating that pursuant to the Act, an employer must promptly investigate an injury and commence compensation  within 21 days after the notice of disability).

The record reflects that Claimant was injured on the fire company’s property during a Board meeting he was asked to attend; the Board members assisted Claimant and visited Claimant after the injury; and the Board president informed Claimant that he could not get workers’ compensation benefits. However, Township never issued a formal denial. Ultimately, the WCJ found that Claimant was injured at the firehouse during the course and scope of his employment, the Board was aware of the injury, and the injury was obvious. (WCJ’s Findings of Fact, Nos. 1, 3-6, 9, 18; WCJ’s Conclusions of Law, Nos. 1, 8.) The WCJ did not err in determining that Township violated the Act.

Imposition of penalties is within the WCJ’s discretion and will not be overturned on appeal absent an abuse of discretion. Croman, 706 A.2d at 410. Because Township violated the Act by failing to issue an acceptance or denial of the injury, the WCJ did not abuse its discretion in awarding a penalty.

Accordingly, we affirm.

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