Loading...
HomeMy WebLinkAbout08-3932©1 r DOUGLAS WALKER, Plaintiff V. FRY COMMUNICATIONS and PMA INSURANCE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law No. 008 - 393 l iyo I teirm PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO SECTION 428 OF THE WORKERS' COMPENSATION ACT, 77 P.S. §921 Pursuant to section 428 of the Workers' Compensation Act, 77 P.S. 921, enter judgment against Defendants in the amount of $30,000.00 as provided by the Workers' Compensation Act, together with interest from 11 /27/2007, as specified by section 406.1 of the Workers' Compensation Act, based upon the following: 1. Plaintiff is Douglas Walker, an adult individual who resided in Carlisle, Cumberland County, Pennsylvania. 2. Defendants are Fry Communications, an entity believed to be a corporation that maintains a place of business at 800 West Church Road, Mechanicsburg, Cumberland County, Pennsylvania, and PMA Insurance, a corporation that maintains a place of business at 500 North 12`h Street, Lemoyne, Cumberland County, Pennsylvania. 3. On 5/27/2008, Workers' Compensation Judge Brian Eader issued a Decision and Order directing Defendants to pay the Plaintiff a penalty in the amount of 50% of Workers' Compensation Benefits that it had illegally withheld from Plaintiff, to pay counsel fees to Smigel, Anderson & Sacks, LLP in the amount of $1,640.00, and to reimburse Smigel, Anderson & Sacks, LLP for litigation costs in the amount of $81.90. A certified copy of the Workers' Compensation Judge's decision is being filed together with this Praecipe. 4. Defendant did not appeal that decision. 5. By operation of section 428 of the Workers' Compensation Act, Defendant is in default for failing comply with the order of the Workers' Compensation Judge within thirty (30) days of the date of the decision. Respectfully submitted, Smigel, Anderson & Sacks, LLP Attorneys for Plaintiff Z5Fred H. Hait, # 4 31 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) fhait@sasllp.com DOUGLAS WALKER, Plaintiff V. FRY COMMUNICATIONS and PMA INSURANCE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law No. AFFIDAVIT I verify that I have personal knowledge of all facts not of record set forth in the foregoing Praecipe, and that such facts are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification to authorities. ?r Date red H. Hait ' ' ? ??Za? V l.OO pennsytvainla Jul. 0 1 2008 DEPARTMENT OF LABOR & INDUSTRY BY ??NNNN??N??N?• BUREAU OF WORKERS' COMPENSATION June 25, 2008 The foregoing is hereby certified to be a true and correct copy of the Decision of Judge Brian Eader dated May 27, 2008 in the case of Douglas Walker vs. Fry Communications, BWC# 2264143, Injury Date February 22, 2001, as full, entire, and complete, as the same remaining on file in the Bureau of Workers' Compensation of the Department of Labor and Industry. Certified this 25th day of June, 2008 Chief Claims Management Division ATTEST: I hereby certify that Thomas L. Dinsmore, who signed the foregoing, was at the time of signing, Chief, Claims Management Division, Bureau of Workers' Compensation, and as such, was the legal custodian of the above-described records. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Department of Labor and Industry to be affixed on this 25'' day of June, 2008 Seal of the Department of Labor and Industry Ju 'th A. Mirasola Department of Labor & Industry I Bureau of Workers' Compensation 1 1171 S. Cameron St. Harrisburg, PA 17104 717.787.3361 1 Fax 717.705.6365 www.dii.state.oa.us Auxiliary aids and services are available upon request to individuals with disabilities. Equal Opportunity Employer/Program Received BWC' 05/29/2008 LTR-005 REV 09/05/00 HOW Circulation Date: 05/27/2008 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY WORKERS COMPENSATION OFFICE OF ADJUDICATION 717-783-4419 BRIAN FADER HARRISBURG JUDGES OFFICE BAST GATE CENTER 1010 NORTH SEVENTH STREET HARRISBURG PA 17102-1400 DECISION RENDERED COVER LETTER Bureau Claim Number: 2264143 Injury Date: 02/22/2001 Insurer Claim Number: W500104985 Petitions: Penalty-Pet Penalty-Pet Pet-To Review Benefit Offset Pet-To Review Benefit Offset Pet-To Review Compensation Benefits Judge: Brian Eader East Gate Center 1010 North Seventh Street Harrisburg, PA 17102-1400 DOUGLAS WALKER 234 E MULBERRY AVE CARLISLE, PA 17013 FRED H HAIT ESQ SMIGEL ANDERSON & SACKS LLP RIVER CHASE OFFICE CTR 3RD FL 4431 N FRONT ST HARRISBURG, PA 17110 Vs The attached Decision of the Judge is final unless an appeal is taken to the Workers' Compensation Appeal Board as provided by law. 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. FRY COMMUNICATIONS INC 800 W CHURCH RD MECHANICSBURG, PA 17055 MAURA B MUNDY ESQ LAW OFFICES OF SCOTT A FLEISCHAUER 500 N 12TH ST STE 100 LEMOYNE, PA 17043 PMA CORPORATE PROCESSING CENTER PO BOX 25250 LEHIGH VALLEY, PA 18002-5250 Forms for an appeal may be obtained from the Workers' Compensation Appeal Board, Capital Associates Building 901 North Seventh Street Third Floor South Harrisburg, PA 17102 OPEN F-1 SUSPENDED CLOSED [:] UNKNOWN TO WCJ Auxiliary aids and services are available upon request to individuals with disabilities. Equal Opportunity Employer/Program Page 1 of 2 Received BWC' 05/29/2008 Emulovee Witnesses & Exhibits: C-01 Penalty Petition C-02 Answer to Penalty Petition C-03 Costs C-04 Quantum Meruit Fee Affidavit Emnlover Witnesses & Exhibits: None Judge Witnesses & Exhibits: B-01 Bureau documents B-02 Decision B-03 Record closing letter DOUGLAS WALKER - 2264143 Hearino: 6/2/2008 14:00:00 Canceled by Employee Counsel on 05/27/08 5/12/200815:00:00 Held 2/4/200813:30:00 Held 12/10/200714:30:00 Held Auxiliary aids and services are available upon request to individuals with disabilities. Equal Opportunity Employer/Program Page 2 of 2 Received BWC 05/29/2008 Douglas Walker BWC #2264143 Penalty Petition Page 1 of 4 FINDIN65 OF FACT: 1. Claimant suffered a work related back injury on February 22, 2001 when he suffered a motor vehicle collision in the course and scope of his employment. His total disability rate is $322.00 per week. The latest operative document prior to these proceedings was Judge Williamsons January 28, 2004 decision granting Reinstatement and Penalty Petitions. 2. On November 6, 2007 claimant f iled a Petition for Penalties in which he asserted that defendant had unilaterally stopped paying compensation on or about November 5, 2007. 3. On or about November 19, 2007 defendant filed an Answer to the Petition for Penalties in which it admitted that 'compensation was inadvertently stopped by the carrier, but is in the process of being reinstated! 4. On or about November 21, 2007 defendant filed a Petition to Review Compensation Benefits in which it alleged that claimant had received a third party settlement but had failed to pay employer/carrier subrogation. 5. Despite defendant's allegations in the Answer to the Penalty Petition that it was in the process of reinstating compensation, it had not yet done so as of the December 10, 2007 hearing. At the hearing, claimant's counsel agreed that defendant was entitled to subrogation from claimant's third party recovery. Following that hearing, this Workers' Compensation Judge issued an Interlocutory Order on December 17, 2007 directing defendant to reinstate compensation for total disability. 6. At the February 4, 2008 hearing claimant's counsel stated that a third party settlement agreement had been completed as to the subrogation claim. Defendant's counsel did not dispute that statement. Defendant's counsel at that time reiterated the admission that benefits were unilaterally stopped without an order. She did not articulate the reason why benefits were stopped. Received BWC 05/29/2008 Douglas Walker BWC #2264143 Penalty Petition Page 2 of 4 7. At the February 4, 2008 hearing claimant testified that he had gone about six to eight weeks without a compensation check, that he has young children, and that he had suffered economic hardship as a result of compensation benefits having been stopped. 8. Claimant has incurred litigation costs in the amount of $81.90. Claimant's counsel has advanced those costs. 9. Claimant's counsel has presented a Quantum Meruit Affidavit in which he seeks an award of counsel fees in the amount of $1,6200.00 for 8.2 hours of work at $200.00 per hour in the event of finding of unreasonable contest. CONCLUSIONS OF LAW : 1. Section 413 (b) of the Workers' Compensation Act provides that "Any insurer who suspends, terminates or decreases payments of compensation without submitting an agreement or supplemental agreement therefore as provided in Section 408, or a final receipt as provided in Section 434, or without filing a petition and either alleging that the employee has returned to work at his prior or increased earnings or where the petition alleges that the employee had fully recovered and is accompanied by an affidavit of a physician on a form prescribed by the department to that effect which is based upon an examination made within twenty-one days of the filing of the petition or having requested and been granted a supersedeas as provided in this section, shall be subject to penalty as provided in Section 435. 2. An employer's right to subrogation, while nearly absolute, is not self - executing. Absent a third party settlement agreement an employer seeking subrogation must file a petition and prove its entitlement. The Act does not give the employer a right to self-help. Therefore an employer that unilaterally suspends or reduces compensation because it believes it is entitled to a credit has violated the Act and is subject to a penalty. City of Philadelphia v. WCAB (Sherlock), 934 A.2d 156 (Pa. Cmwlth. 2007) Received BWC 05/29/2008 Douglas Walker BWC #2264143 Penalty Petition Page 3 of 4 3. The mere fact that an employer has made payment after having unilaterally suspended compensation does not meal that a penalty would be appropriate. A penalty may be appropriate in order to assure compliance with the Act even in situations where the claimant has not suffered economic harm. Palmer v WCAB MIX of Philadeluhia), 850 A.21d 72 (Pa. Cmwlth. 2004). Here, even though defendant acknowledged in its Answer to the Penalty Petition that it had "inadvertently" stopped paying compensation, nevertheless it had still not reinstated compensation as of the date of the first hearing three weeks later. If defendant had immediately reinstated compensation upon service of the Penalty Petition perhaps it would have demonstrated sufficient good faith enable it to avoid a penalty. The fact that it did not do so renders its protestation that it `inadvertently' stopped paying compensation suspect. It appears rather that defendant was attempting to apply economic pressure because it believed that claimant was resisting its subrogation claim. There is no support in the record for any conclusion that claimant was denying or contesting the subrogation claim. Therefore I conclude that defendant violated Section 413 (b) when it unilaterally stopped paying compensation, and that its conduct in delaying reinstatement even though it knew penalty proceedings had been instituted warrants a penalty in the amount of fifty percent (50%) of the compensation benefits that were illegally withheld. 4. Because defendant's counsel did not dispute the assertions that claimant's counsel made at the February 4, 2008 hearing to the effect that the subrogation issue had been resolved by means of a Third Party Settlement Agreement I conclude that that issue is moot. Accordingly, defendant's Review Petition will be dismissed. 5. Section 440 of the Act provides for an award of counsel fees to be charged against the defendant whenever a claimant prevails in a litigated case unless the defendant meets the burden of proving a reasonable basis for contesting the case. A reasonable contest exists when the governing law is unsettled or when the defendant presents evidence that if found credible would have entitled it to prevail. Neither factor is present in this case. Defendant presented no evidence that would have led to a conclusion that it had an innocent reason for unilaterally suspending compensation. Therefore, I conclude that defendant mounted an unreasonable contest with respect to the Penalty Petition. Received BWC 05/29/2008 Douglas Walker BWC #2264143 Penalty Petition Page 4 of 4 6. This judge is very familiar with the work of claimant's counsel, who has appeared before me regularly for many years. I conclude that both the amount of time shown on the Quantum Meruit and the hourly rate requested are reasonable under the circumstances. Therefore, I conclude that a counsel fee in the amount of $1,640.00 shall be assessed against defendant due to its unreasonable contest of the Penalty Petition. 7. Having prevailed on the Penalty Petition, claimant's counsel is entitled to be reimbursed for litigation costs in the amount of $81.90. ORDER. AND NOW, this 27th day of May 2008, the claimant's Penalty Petition is GRANTED. Defendant shall pay clamant a penalty in the amount of fifty percent (50%) of the compensation that was illegally suspended. Defendant shall pay a counsel fee in the amount of $1,640.00 to Smigel, Anderson & Sacks, LLP. Defendant shall reimburse Smigel, Anderson b Sacks, LLP for litigation costs in the amount of $81.90. Defendant's two Review Petitions are DISMISSED as moot. Brian G. Eader, Workers' Compensation Judge Harrisburg District Office BGE/dc _ rTl DOUGLAS WALKER, ; IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. FRY COMMUNICATIONS and PMA INSURANCE, Defendants Civil Action - Law No. 08-3932 Civil Term PRAECIPE TO SATISFY JUDGMENT TO THE PROTHONOTARY Please mark the judgment in this case as having been satisfied. Respectfully submitted, Smigel, Anderson & Sacks, LLP Attorneys for Plaintiff Fred H. Hit, ID # 34331 " River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) fhait@sasllp.com 0 r-? -ra ?y ? ? ;? .?._ ..,. ? C.. ?`;? ? '< ° . ts $