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HomeMy WebLinkAbout01-03455 FRANK L. KUREN, JR. 3532 A Derry Street Harrisburg, PA 17111 Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. W.R. FOODS, INC., 1302 Slate Hill Road Camp Hill, P A 17011 Defendant NO.: 01- J'-IS S (!1L>~lY~ PRAECIPE FOR ENTRY OF JUDGMENT PURSUANT TO THE WORKERS' COMPENSATION ACT To Curt Long, Prothonotary: 1. This Praecipe is filed pursuant to Section 428 of the Workers' Compensation Act, 77 P. S. Section 921 et seq. 2. Defendant, W.R. Foods, Inc., has been found liable to the Claimant, Frank L. Kuren, Jr., for workers' compensation benefits based on decisions entered by the Honorable James P. Deeley, Workers' Compensation Judge. Certified copies of said Orders are attached hereto collectively as Exhibit A. 3. Enter judgment in favor of the Plaintiff and against the Defendant in the sum of $50, 431.39 calculated as follows: Sum owing as of April 30, 1998 $40,896.39 Accumulated compensation from May 1, 1998 to June 1, 2001 $37,835.00 $78,731.39 Subtotal Credit for sums actually paid $28,300.00 Final Total $50,431.39 ;H~W$OO~ _ " < -.- ,- -~, " ~- ",~J '!"?_~, " 4. The aforesaid sum shall bear interest at the rate of 1 0% per annum as required by Section 406.1 of the Workers' Compensation Act, 77 P.S. Section 717.1. 5. Notice of the presentation of this Praecipe has been provided to the Defendant as required by Pa. R.C.P. 237. No Notice pursuant to Pa. R.C.P. 237.1 is required as judgment is not entered pursuant to Rules 1037(a) or 1659. LAW OFFICE OF ROBERT P. REED ~,7?&/ BY: Robert P. Reed, Esquire P.O. Box 6034 Harrisburg, PA 17112 717 909"6637 Attorney's J.D. No. 15624 Dated: r tt; ~( 1.-~ < . ~ ~ ,. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY BUREAU OF WORKERS' COMPENSATION FRANK L. KUREN, JR. 3532 A Derry Street . Harrisburg, P A Claimant BUREAU CLAIM NO. 180098 vs. W.R. FOODS, INC., Defendant CERTIFICATION I, James P. Deeley, Workers' Compensation Judge, hereby certify that the attached Decisions of February 29, 1998 and March 29,2001, marked Exhibits A and B respectively, are true and correct copies of the decisions rendered by me in the above matter. Dated: 6'/ I? J 2-00 I . "I( i:-t- h dJ,7; 'A '-T,"W>~,.i/JlI"" " ..~~_",);..!,~ '-.'1 ._.~ , ',~~, - """~~""!""'!~- ,-- EXHffiIT A " 1 ~ , ~, '.' LIBC-471 (REV. 10-87) COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY BUREAU OF WORKERS' COMPENSATION 1171 South Cameron Street, Room 103 Harrisburg, PA 17104-2501 (717)783-4419 161-32-3233 CLAIM/REINS/PLTY 2/25/98 DATE OF CIRCULATION DAUPHIN COUNTY FRANK KUREN 326 SECOND ST STEELTON PA 17113 vs W & R FOODS INC 3613 WALNUT ST HARRISBURG PA 17109 THE ATTACHED DECISION OF THE JUDGE IS FINAL UNLESS AN APPEAL IS TAKEN TO THE WORKERS' COMPENSATION APPEAL BOARD AS PROVIDED BY LAW. AMOCO CHEMICAL CORPORATION 200 E RANDOLPH DR MC 3201 CHICAGO IL 60601 IF YOU DO NOT AGREE WITH THIS DECISIOI AN APPEAL MUST BE FILED WITH THE WORK ERS' COMPENSATION APPEAL SOARD WITHIN 20 DAYS OF THE DATE OF THIS NOTICE. DARRELL DETHLEFS, ESQ. 355 NORTH 21ST STREET STE 205 WAGNER SLOG CAMP HILL PA 17011 FORMS FOR AN APPEAL MAY BE OBTAINED FROM THE WORKERS' COMPENSATION APPEAL BOARD,901 NORTH SEVENTH STREET, 3RD FLOOR SOUTH, HARRISBURG, PA 17102-003' KEITH BRENNENMAN, ESQ. 44 WEST MAIN STREET MECHANICSBURG PA 17055 JUDGE JAMES P DEELEY pas _._.___ U~ --~~- ;_;W'~~,_, ,_~l'I!ly", ~ ~, ~ -" - : Frank Kuren v. W & R Foods. Inc. S.S. #161.32.3233 Reinstatement PetitioriPena lty / CIa 1m Page 2 HEARING DATES: 09/26/95 12/12/95 08/19/96 07/21/97 Record Postponed Record Record WITNESSES AND EVIDENCE OF CLAIMANT: Frank Kuren. Witness C-I Fee Agreement and Deposition of Robert H. Dahmus, M.D., dated 04/12/96 WITNESSES AND EVIDENCE OF DEFENDANT/EMPLOYER: Paul Annstrong. Witness 0-1 Notes ofTestimony of 01/20/93 0-2 Claim Petition - Conestoga Ceramic Tile 0-3 Three Receipts COURT REPORTER: Sargent's Court Reporting Service, Inc. :!","~L_W'i.~ ." ~. ~_ "" ," ~"ru" Frank Kuren v. W & R Foods. Inc. S.S. #161-32-3233 Reinstatement Petition/penalty /Claim Page 3 FINDINGS OF FACT: 1. Claimant was paid based on hours. The Employer kept the hours. Claimant earned $430.00 in a high week. $310.00 for another week. 2. On July 6, 1993. Claimant worked as a delivery man, loading and delivering produce to different restaurants. for example, Subway. Claimant had been on the job for about three months. Claimant was carrying a 50 pound bag of potatoes down the steps to deliver to Deluxe Restaurant. Claimant felt pain in the right side of the low back going do.wn to his buttocks. 3. Claimant finished the delivery at the Deluxe Restaurant and returned to the plant. He saw Gary. the o,^,ner and said. .'1 think I pulled something." Gary asked the Claimant ifhe could go to York. Claimant said. .'Yes:' and made his deliveries to York. 4. Claimant came back from York after doing the deliveries. Then Claimant was asked to go to Hershey by his supervisor, Paul. Claimant talked about his back pain and another man was to be sent to Hershey. Claimant thought that his supervisor was angry. Claimant did not want to lose his job. so Claimant said. "I'll take the Hershey run." 5. Later. while off work. Claimant was paid $250.00 a week cash until approximately January of 1994. Then Paul said that they could not afford that but they would still try to help Claimant and paid him $200.00 a week until around June of 1995. 6. Claimant was taken to the Polyclinic Hospital by his wife. Then Claimant treated with Dr. Dahmus. Claimant had a disc removed by surgery on July 15, 1993. 7. Claimant still treats with Dr. Dahmus and has not been released. Claimant had been on social security disability for 2-1/2 years receiving $803.00 a month. Claimant had medical bills which were paid by Medicare. 8. Claimant had back problems before July of 1993. He discussed them with Gary when he applied for work. Claimant said that he felt he could handle the job. Claimant did handle the job until July 6. Claimant had treated with Dr. Dahmus and Dr. Lippe for his prior back problem. Claimant said that he had a bad back and a bad hip. Claimant told Gary about Conestoga Tile. Claimant missed work when he had to go to a hearing. He told Gary about the hearing. 9. While in the hospital, Claimant received no payments. He called Gary and said that he needed help and asked for $300.00 a week. Gary said $250.00 and Claimant agreed. 10. Claimant had a hearing for an injury at Conestoga Tile, D-I. Claimant worked about two weeks before his injury. The petition was withdrawn. Claimant was offwork until he started at '-"""Sl'i.~_,"", '1~ ,"",' _ ~- ~, ~..,.- ,- ~. ~~,' Frank Kuren v. W & R Foods. Inc. S.S. #161-32-3233 Reinstatement Petition' Penalty /Claim Page 4 FINDINGS OF FACT - (Cont'd.): Western Rose. Claimant treated ""ith Dr. Lippe. Claimant's lawyer withdrew and then Claimant dropped the case. 10. Claimant had an injury when working at Shaw Pipe. Claimant was thrown against the wall and hurt his upper back. Claimant was paid compensation and then there was a commutation for $45.000.00. II. Claimant filed a claim against M.& G. Industries for an injury and was paid benefits. There was a commutation of $28,000.00. 12. Claimant had benefits from Brookwood Farms for a 1985 automobile accident. There was a $35,000.00 commutation in 1980. 13. Claimant slipped and fell in May of 1984, was off work for three weeks and was paid benefits. 14. Claimant fell and hurt his hip in a fall from a roof in 1976. Claimant hurt his hip in the automobile accident. 15. Claimant filed a claim against Hill's Department Store for a fall. He hit his shoulder. He was paid $1.000.00 in 1992. The money went to the hospital. Claimant had bills larger than that but Hill's said that they were in bankruptcy and that was all they could afford. 16. In his job. Claimant would set the bags on a step. pick them up in his arms. turn, take them to the cooler. then set the bags down. While doing this, Claimant felt pain in the low right back and in the buttocks around the right hip bone. 17. Claimant got up at 2:00 a.m. to go to work. Claimant called work and talked to Pappy. Claimant said. "I cannot go to work, I am going to the doctor." Claimant went to Polyclinic Hospital. Claimant saw an emergency room doctor and received plain medications. Claimant's family doctor saw Claimant and he was admitted to the hospital. Claimant saw Dr. Dahmus the next day. Claimant felt that Dr. Dahmus knew about his back because Claimant has had back problems before. His low back had been bad at the M & G Industries injury. Claimant saw Dr. Dahmus for his lower back. 18. Dr. Lippe had seen Claimant for his upper back and his neck. 19. Surgery had been discussed with Dr. Dahmus as a possible treatment to consider before the W & R problem. ..;~~,..",..~. ~ ~ < - . I ~ -~,.." ,~> - - ~ Frank Kuren v. W & R Foods. Inc. S.S. #161-32-3233 Reinstatement Petition/Penal ty /Claim Page 5 FINDINGS OF FACT - (Cont'd.): 20. Claimant previously had hip pain on the left side. he had to live with it. He had a hip replacement by Dr. Dahmus. Dr. Dahmus said that the hip surgery could help the back. Claimant had a lot of pain in his back. After the hip replacement, the hip would pop out. This happened about four times. Claimant needed an additional procedure. At the time of the hearing. Claimant's hip felt great. 2 I. Claimant's back still hurts. Further surgery was discussed, a fusion. Claimant did not want any more surgery. Claimant has diabetes and had bypass surgery around 1995. He had an angioplasty just before the bypass. Claimant had chest pains while walking in the snow in 1994. Claimant does not shovel snow anymore, he has two boys. 22. After the bypass, there were limits on Claimant's activities. He was to increase his walking. 23. Gary told Claimant that they had no insurance. Claimant called the Bureau of Workers' Compensation and was advised to see a lawyer. Claimant's wife signed receipts when she was paid. Claimant was paid to August 4, 1995. 24. Claimant got social security for his hip starting around 1991. Claimant had two surgeries for the hip and for the four times his hip popped out. 25. Paul Armstrong is an officer of the company which was formed In July of 1993. Claimant had started working before the company was formed. 26. Claimant came back from York and said that he had back pain. Paul was going to send Claimant on a run. Claimant said that he thought he could handle it, but Claimant said that he had pain in his back. Claimant always walked with a type of limp and leaning forward. 27. Claimant said to Paul and Gary that he had an injury at Brookwood Farms and that he thought he could do the job. They did not know of any other injuries until the litigation. 28. The workers' compensation insurance started around August I, 1993. The company was a family business before the incident. 29. Claimant would go home before lunch some days and work in the afternoons on other days. Claimant would start early in the morning and work until the work was done. He worked around 40 hours a week, and more than 40 hours at other times. He earned $6.00 an hour. This Judge felt that the rate was established to be $6.00 at 45 hours a week, or $310.00 a week. ----------~--~.;;- -,--- - -- -- Ai'J:"A'_~_., "~"' . ~ "'''''",--''''il ~~ ., -~ _=ff' Frank Kuren v. W & R Foods, Inc. S.S. # 161-32-3233 Reinstatement Petition/Penal ty /Claim Page 6 FINDINGS OF FACT - (Cont'd.): 30. Claimant was paid $250.00 a week. He asked for money to keep his house going. Claimant asked for cash. Paul did not know why. 31. Before the business was incorporated, it was Western Rose Produce. Snelbaker & Brenneman incorporated the business. Gary and Paul were officers. There were five or six employees. two who were not family. Claimant, Laverne, Paul, and others were paid cash. There were no 1099 fonus issued. There was an accountant after the incorporation. 32. There was no workers' compensation insurance before the incorporation. The application for workers' compensation insurance was made after July 6, 1993. 33. Claimant was told by Gary that Claimant would be able to get 40 hours, which he did plus some overtime. 34. Currently, the company has documents, salaried employees and hourly employees. It is now run as a full business. 35. Mr. Armstrong was told that Claimant was in the hospital on Wednesday and would have surgery on Thursday. Claimant would return on Friday. 36. Mr. Armstrong talked to the Claimant. Claimant proposed that he come back to work, say that he tripped at work and then go on workers' compensation. Paul Armstrong had told Claimant that they had workers' compensation insurance. Claimant had come to the company several times and threatened to tell the Bureau of Workers' Compensation about the company not having the workers' compensation insurance and stated that he had two years to file. 37. Claimant came in and talked to Paul alone several times. 38. Paul felt that the $250.00 a week he paid was blackmail money. It was not accounted for. 39. About 18 months after the injury, Claimant asked for a cash settlement. He started at $20,000.00 and dropped to $5,000.00. 40. Mr. Armstrong had been trying to help the business grow. He became an owner but wanted things right with regard to records. Claimant used his left hand to break his fall and his head hit hard board. Claimant fell backwards and hurt the bottom of his back, had pain around the shoulder, a bruise on the back of his head, and a sore wrist. He reported it. He said that he had just fallen, got a little lump on his head and hurt his back. They said, "Don't worry, you'll be okay, tomorrow." Claimant treated with people and also with Dr. Lippe. He had physical ., - _.-- ,.. - ~-- -- ~---,,_._----- , :,';;S~~;,:IX,~ ,~ -'r~ C~~"_-~~.. -; ~ ~. - , Frank Kuren v. W & R Foods, Inc. 5.5. #161-32-3233 Reinstatement Petition /Penalty / Cla im Page 7 FINDINGS OF FACT - (Cont'd.): therapy. Claimant reported that he had an injury in June, 1989, when unloading a truck. Bottles fell on him and he treated with Dr. Dahmus for a low back injury. He had physical therapy and went back to work. He reported that he worked with some back pain and in April of 1991, he was at Shaw Pipe, when he was thro'WTI up against the building by a large hose and hurt his neck. He treated with Dr. Lippe. Surgery was recommended but Claimant was afraid of it and did not have it. At the time of his testimony. Claimant said that he had some problems when bending or doing certain activities with his back and his wrist felt stiff. He was treating with Dr. Lippe. He felt he could try to work and thought he would be able to go back to full work if he had physical therapy. 41. The deposition of Dr. Dahmus was taken. Dr. Dahmus saw the Claimant on July 7, 1993. at the request of Dr. Fierer, Claimant's family doctor. Claimant had low back pain, with pain going dO\\TI the right leg. The pain was so bad that if he stood up he could fall down. The pain would start in the back, go to the groin and then down the back of the leg. There was no numbness or tingling and no bowel or bladder problems. On the examination, there was significant weakness of the right leg. The doctor felt there was probably a herniated disc at L3-4 or at L4-5. The doctor recalled that Claimant said that he was lifting something heavy. An MRI test was done which showed a lateral disc extending into the foramen at L3-4. Claimant did not respond to the epidural steroid injection. Surgery was done on July 15, 1993, with a disc fragment removed. There are foraminotomies at the levels of L3-4 and L4-5 to free the nerve roots. 42. After surgery, the radicular pain was much improved. Claimant still had significant groin pain and back pain. He was treated with physical therapy and epidural injections. 43. Claimant continued to be seen until November of 1995. He checked Claimant's hip because Claimant had a previous hip replacement. The hip was in good condition. Claimant continued to have back pain. He had trouble doing activities because of his back pain. 44. Dr. DaJunus gave an opinion that Claimant was totally disabled when he saw him in Julv. due to the herniation. He felt this was due to the lifting incident at work as described by Claimant and Dr. Fierer. 45. Dr. DaJunus felt that Claimant could do a sedentary type job, but not more, and would question doing even a light job because of back pain and hip problems. Neither joint could carry a load and thus, he was at high risk for hurting one or the other. He felt Claimant should be at a 20 to 25 pounds lifting limit with occasional bending, stooping, climbing and twisting. Dr. Dahmus noted that the back injury is a significant factor in his restrictions. The hip injury is not work related. [fClaimant does not improve, they were discussing a possible fusion. -- - ,- ,,- --~--- :-,~t'<'t_ '-'-~~'--'f'~"'''''~ ~,~. " . '" " - <, Frank Kuren v. W & R Foods, Inc. S.S. #161-32-3233 Reinstatement Petitioll/Penalty /Claim Page 8 FINDINGS OF FACT - (Cont'd.): 46. Dr. Dahmus recalled Claimant stating that he had lifted some heavy thing at work, but he did not "",Tite it down. There was information in the chart. as well. 47. Dr. Dahmus had seen the Claimant before. but he did not have the records which were at his old group and he could not recall why he had treated Claimant. In reviewing the records which were provided, the doctor noted that when he had seen him before. there was pain in the left hip and left lower back. He felt this was different, this time it was Claimant's right leg. The x-rays in 1989 had showed degenerative joint disease. There was a note that the Claimant had stenosis. 48. In reviewing prior x-rays and MRl reports, the doctor noted that there was bulging and there were problems at other levels, such as L2-L3. He felt that Claimant would need instrumentation because there are slippages. The doctor noted that the MRl tests show problems at many levels of the spine. Had he performed other dissectomies, Claimant would have had to have instrumentations and fusion and might have been made worse. He felt it was clear from the examination and the history. that the disc which required the surgery was caused by the work injury. 49. The doctor would have felt Claimant could have gone back to sedentary or light work within 6 to 10 weeks, if he had not had the hip problem as well. With double joint problems, there is a delay. He would never feel Claimant would go back beyond that level. DISCUSSION: The only real question in this case is whether or not there was a reasonable contest. Claimant described a straight forward injury which he reported promptly and in fact, was treated for the injury very promptly. MRl and surgery confirmed that there was a disc which was due to the lifting incident. Claimant had a bad back that was susceptible to injury and an injury occurred. I thought because of the multiple prior injuries, it was reasonable to contest the matter. Claimant gave a straight forward history of lifting and a disc was found which was confirmed by an MRl test and surgery. There is disability. It is clear there was an injury established. later. The employer did not have insurance. It was a new company and they got insurance Presumably. they did not feel there would be an injury. Unfortunately, as has happened ._-,-~._-~-- '_B_' ii'~~,r.::t.,,,, rl'""F'""'. "-,~-~, ~~- . Frank Kuren v. W & R Foods. Inc. S.S. #161-32-3233 Reinstatement Petition/Penalty tela im Page 9 DISCUSSION - (Cont'd.): before this Judge on a number of occasions. injuries do occur before insurance is obtained. In fact. injuries have occurred on the one day with no insurance between the renewal of policies. Defendant corrected the mistake. There is a question about the ongoing payments. Payment of money in lieu of compensation relieves the obligation for that week. There was testimony that Claimant asked for settlements and indicated that he would report the company to the Bureau of Workers' Compensation. However, this tends to support the fact that there was an actual injury. The surgery and disability were prompt. Claimant was not . claiming to go back against the previous company. which had a carrier. I thought it was confirmed that Claimant had an injury at work. was entitled to compensation and medical bills. CONCLUSIONS OF LAW I. It is established that Claimant had an injury in the course of his employment which resulted in disability. 2. Claimant was credible that he promptly gave notice of the injury. 3. Defendant would be allowed a credit for the continuation of compensation in the form of wages in lieu of compensation. 4. Defendant is responsible for medical bills related to the Claimant's injury. 5. The fee agreement is reasonable. 6. Since the Defendant corrected the violation of law and obtained insurance and attempted to pay Claimant compensation while off work, no penalties should be assessed. 7. It was established that the average weekly wage is $310.00. ORDER: Compensation is awarded from July 6, 1993, at a rate of$237.50 a week. Defendant is allowed a credit for monies paid in continuation of compensation. ;-'ffi""",,~",~....._ "~ilr!_, "". ~~~_, ,1' ~,~- """""-. , Frank Kuren v. W & R Foods. Inc. S.S. #161-32-3233 Reinstatement Petition IPenalty IClaim Page 10 ORDER - (Coot'd.): The medical bills are the responsibility of the Defendant. Twenty percent (20%) of all compensation shall be paid to Claimant's counsel. Costs are awarded to the Claimant. Interest on past due compensation is awarded at the statutory rate. -) / ',,:',. ...--..,<. '-/ // . , c,,/{'"L/ / James P. Deeley, Judge Bureau of Workers' Compensation JPD/nlp ..----- . ""'-!I~'"q'f""'''~'''_'.'i''l'l!llj~li1!'lI'flrlmo!l9l.l'zr,:~~ _~ -"" ~ "~""0i'U~;;r"Wi,!l3~ ~""".. ~'f,-O~"","~'!'l8 .-r-o " ".J EXHIBIT B - "" L TR-005 REV 09ltl5/00 ", Circulation Date: 03/29/2001 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY BUREAU OF WORKERS' COMPENSATION 717-783-4419 ROBERT P REED ATRIUM WEST 3461 MARKET ST STE 310 PO BOX BSB CAMP HILL PA 17011 DECISION RENDERED COVER LETTER Bureau Claim Number: 180098 Insurer Claim Number: Petitions: Joinder.Pet Penalty-Pet Pet. To Reinstate Compensation Benefits Pet. To Review Compensation Benefits Pet. To Review Medical Treatment FRANK KUREN 1439 COLONIAL RD HARRlSBURG,PA 17m ROBERT P REED ATRIUMWEST 3461 MARKET ST STE 310 PO BOX 858 CAMP HILL, PA 17011 Judge: James Deeley East Gate Center 1010 North Seventh Street Harrisburg,PA 17102-1400 The attached Decision of the Judge is fmal unless an appeal is taken to the Workers' Compensation Appeal Board as provided hylaw. Vs If you do not agree with this Decision an , appeal must be filed with the Workers' Compensation Appeal Board within 20 dayS from but not including the date of this notice. Forms for an appeal may be obtained from the ~orkers' Compensation Appeal Board, CapItal Associates Building 90 I North Seventh Street Third Floor South Harrisburg, PA 17102 W & R FOODS INe 1304 SLATE HILL ROAD CAMPHlLL,PA 17011 AMGUARD INSURANCE COMPANY PO BOX 1368 WILKES BARRE,l'A 18703-1368 GARYRLANDVATER 7971 CHAMBERS HILL RD HARRlSBURG,PA 17109 PAUL D ARMSTRONG 107 PINE HILL RD ENOLA, PA 17b25 COMMONWEALTH OF PENNSYLVANIA BWC LEGAL DN 1171 S. CAMERON STREET ROOM 327 HARRISBURG, PA 17104-2501 Page I of 3 !~'~~f~; 1 .~, ~"""':"l.~I!'J,r>-> "'1 0 ,~ ~ ~~ .,,'" ",' ~ ="~.q.~--- . WESTERN ROSE PRODUCE COMPANY 1302 SLATE HILL ROAD . CAMPHILL,PA 17011 MICHAEL D. RENTSCm..ER, ESQUIRE 1300 MARKET STREET. SUITE 200 LEMOYNE, PA 17043 p.'- ~tri I ~~~ . ~"""'! ~,-- FRANK KUREN - 180098 Page 2 of 3 ~ ~ " Frank Kuren JoinderlPenaltylReinstatementlReview Petitions PABWC Claim #180098 Page 10fS FINDINGS OF FACT 1. There was a decision in 1998 awarding compensation at a rate of $237.50 a week from July 6, 1993 with an allowance for payments made. After C-1, claimant and W & R Foods, Inc. negotiated. They calculated what had been paid in wages and what was owed. An agreement was executed. 2. At first, claimant was paid $200.00 a week pursuant to the agreement. These payments stopped around July, 2000. The payments were to change to $221.03. 3. Claimant has not recovered. He is on social security disability. Claimant has not worked. 4. Mr. Armstrong gave $200.00 to claimant's counsel for claimant. He said to claimant that it was the last payment. This was in June, 2000. Claimant executed a release for $5,000.00 for the remaining payments. S. Claimant understood that the company was contemplating bankruptcy so he signed the agreement and the release. The agreement and the release were not approved by a workers' compensation Judge. 6. Claimant did not get the $40,896.37. 7. Claimant was paid $5,100.00. He got $4,060.00. Claimant understood that this ended the payments including the rest that was due him. There had been an appeal filed. 8. Claimant felt that he had to sign the agreement because Mr. Armstrong said he was going bankrupt. 9. Claimant's counsel gave claimant the agreement and told him to sign it, indicating that claimant should take this or he would get nothing. Claimant scanned the agreement and the addendum. He read paragraph 9. He also talked with Attorney Detlef. 10. Claimant's bills were paid by Medicare. They said that claimant should reimburse them ifhe ever got the money for those bills with regard to the July 6,1993 injury. 11. Claimant treats at the Hetrick Center. He uses the treadmill pool. Claimant feels this treatment is because of the injury of July 6,1993. 12. The release was signed in claimant's counsel's conference room. f9l:11"!jfflt,~_,..,." "~. 1" "~,'~'" '" cO .~~ ,. ~'~,~""","'" Frank Kuren JoinderlPenalty/Reinstatement/Review Petitions PABWC Claim #180098 Page 2 of5 13. Mr. Landvater and Mr. Armstrong incorporated themselves in July, 1993. Before that, Mr. Landvater was with Western Rose Produce. Mr. Armstrong came around July, 1993 as a partner. He did sales for Western Rose before that. Before incorporating, they had no workers' compensation insurance. They had filed for it but it was not in effect as of the date of the injury. 14. The corporate records, C-6, were dated July I, 1993. Mr. Landvater did not know when they were filed. He does not know where the Articles of Incorporation were. He was not aware ofa certificate of incorporation. There were 100 shares of stock with 50 to Mr. Landvater and 50 to Mr. Armstrong. Mr. Landvater paid taxes on his salary. 15. Mr. Landvater resigned April 27, 1997 and ceased all ties with W & R Foods, Inc. 16. Mr. Armstrong was with Western Rose doing sales. He became a partner and got 50 shares. The accountant did paper work for the company. Now the company has two accountants. 17. The company moved in 1996 and records were thrown away. The corporation did pay taxes. W & R Foods, Inc. is being sold. 18. Because of liens the IRS will close the doors. The promise of a buyer is keeping the doors of the business open. The liens are from 1997. 19. Mr. Armstrong understood that claimant signed the release in order to end the claim. Mr. Armstrong borrowed the money to pay claimant. 20. Last year the company lost more than $100,000.00. 21. Mr. Armstrong saw the claimant and said, "I don't know how we can continue to pay." Claimant asked, "Could you make some kind of settlement?" Claimant's counsel called Mr. Armstrong and they settled for the $5,100.00. 22. There were costs of $125.65 incurred by claimant's counsel. DISCUSSION Claimant asked that this Judge pierce the corporate veil. If jurisdiction lies with the workers' compensation Judge, this Judge does not think the veil should be pierced. It did not appear to this Judge that the company tried to avoid responsibilities, or engage in the type of willful misconduct which calls for piercing of the corporate veil. Rather, as a new business they had difficulties. This is not unusual with small and new businesses. This Judge has had other """'o/~l ~._~ . , ~~ , ~~"_~=n4I- l'i Frank Kuren JoinderlPenaltylReinstatementlReview Petitions PABWC Claim #180098 Page 3 of 5 cases where companies had injuries before policies were obtained or while they were in the start up phase. This Judge does not think it calls for piercing the corporate veil and there does not seem to be an attempt by the owners to engage in activities under the guise of a corporation. In the prior case, this Judge thought it credible that they would have obtained insurance but had not. This Judge does not feel there is a need to change that particular ruling with regard to the corporate status. There are agreements which were made. Claimant preferred to take some money as opposed to standing in line with other creditors. This may have been a reasonable decision. The agreements were signed with counsel. None of these matters are under the purview of a workers' compensation Judge. The Judge's jurisdiction involves workers' compensation matters. It extends to include such things as finding that a policy was in effect because a broker received money. It may deal with corporate structure. It can deal with attorney's fees and it also can deal with the question of independent contractors. Matters that bear directly on the question of workers' compensation and the arrangements between the parties with regard to injuries at work are subject to the Judge's jurisdiction. Bankruptcy law only concerns workers' compensation Judges with regard to orders and stays issued by courts preventing proceedings from going forward. Workers' Compensation Judges make no rulings concerning bankruptcies; Similarly, tax questions or other liens are not the subject of workers' compensation proceedings. There have been cases through the years where there are agreements or payments made to deal with work injuries. The statute is clear. Parties can not vary the amount to be paid. All parties are subject to the workers' compensation law. That there were payments made pursuant to a negotiation is only relevant to establish that there are payments and therefore, a possible credit. An agreement to accept less than the amount due in workers' compensation or to be paid more than the amount due in workers' compensation is void. The remedy under workers' compensation is exclusive. Credits are allowed for other payments. Thus, it is not unusual for workers' compensation matters to have agreements or contracts dealing with workers' compensation issues. They are void. Sometimes you will see these because other states permit such practices. Sometimes these agreements were made between the parties because of a variety of circumstances. Here an Order was issued. It remains outstanding. Defendant/employer has not complied with it. The previous Order remains. Payments made in accordance with other contracts or agreements do not change that Order. They are not appeals. Therefore, the original Order would stand. The defendant/employer would be allowed a credit for the amounts paid since. Defendant/employer would still be liable for the workers' compensation due and the past workers' compensation owed. There would be a credit allowed for the payments made, whether weekly or in lump sums. . Penalties were ask~d for. This Judge did not think penalties would apply. The parties negotiated settlement. Clallnant was represented during the negotiations. There were questions ~Tl'!I ~;"! ,~ , ~-~ ""!",, - h ~ ~ " ~_~~o ,!!'lllil\ml-\ Frank Kuren JoinderlPenaltylReinstatementlReview Petitions PABWC Claim #180098 Page 4 of 5 of bankruptcy, but in truth, bankruptcy questions and other questions are outside the purview ofa workers' compensation Judge. Penalties are within a Judge's jurisdiction but this Judge does not feel this case calls for penalties. The law is clear that the remedy under workers' compensation is exclusive. Claimant has an award. He is entitled to be paid the award. If there are other legal entities that can discharge that obligation, such as bankruptcy, that is not the jurisdiction of this Judge. However, this Judge does not feel penalties should be awarded because of an agreement when both sides were represented and there are fmancial difficulties. Still, that agreement does not change the fact that workers' compensation was awarded and has not been paid. CONCLUSIONS OF LAW 1. Workers' compensation is an exclusive remedy and attempts to change the remedy are void. 2. When a claimant has been awarded compensation and the parties make an agreement to change the amounts of that award outside the legal processes designated in the Workers' Compensation Act (Act), the agreement is void. 3. When payments are made pursuant to agreements made between the parties, the defendant/employer is allowed a credit for the payments against workers' compensation owed. 4. No penalties should be awarded because of agreements made between parties when both sides were represented as in the instant case and there were factors which made the agreements reasonable, such as financial hardship. 5. The fee agreement is reasonable. 6. Costs should be awarded to the claimant. 7. Interest is due by statute. ORDER The previous decision is reaffinned. Claimant is due the compensation at the rate as previously set forth including past compensation. Statutory interest on past due compensation is awarded. The defendant/employer is allowed a credit for the amounts paid. '!-'1;~~"",~ __,If.,. . . -,-- - .-, Frank Kuren JoinderlPenaltylReinstatementlReview Petitions PABWC Claim #180098 Page 5 of5 Claimant is due compensation, both with regard to the past compensation due and to ongoing compensation, until the status of the previous order is changed. Costs should be awarded to the claimant. No discretionary penalties are awarded although the Act was violated. Twenty percent (20%) of compensation shall be paid to claimant's counsel. This Order disposes of the outstanding petitions. Jam . Deeley rkers' Compensation Judge Harrisburg District Office JPD/nlp '~,~~~'''' ~,,,,,,.,...- ,~.~ - ~-", ~" .......~~" , . FRANK KUREN - 180098 Emplo~ Witnesses & Exhibits: . Frank Koren C-03 Agreement Employer Witnesses & Exhibit.: None Employee Counsel Witnesses & Exhibits: Gary Landvater Paul Armstrong CoO I Decision (02125/98) C-02 Fee Agreement C-04 Addendum to Agreement C-05 Release C-06 Corporate Records Hearings: 2/6/01 09:05:00 1/9/01 10:30:00 11/28/0011:10:00 10/10/0008:30:00 Canceled by Employee Counsel on 02/01/01 Held Canceled by Employee Counsel on 11/21/00 Held Page 3 of 3 <"i'''''~:'' ill1}f, "' ~ -." ~, " ~--~ " -, ~ '" "~...,~ " . , CERTIFICATE OF SERVICE AND NOW on this !/:1i!day of June, 2001 I Robert P. Reed, Esquire, hereby certify that I served the within Praecipe for Entry of Judgment Pursuant to the Workers' Compensation Act this day by depositing the same in the United States mail, postage prepaid, in Harrisburg, Peunsylvania, addressed to: Michael D. Rentschler, Esquire 1300 Market Street, Suite 200 Lemoyne, P A 17043 W.R. Foods, Inc. 1302 Slate Hill Road Camp Hill, P A 17011 LAW OFFICE OF ROBERT P. REED BY: ~7?';&.( Robert P. 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