625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
(412) 261-4774 - fax (412) 261-1225
I. CASE FACTS: Claimant was employed as a window washer on July 16, 1999 for Expert Window Cleaning ("Expert"). On the date in question, he arrived at work and commenced his regular employment responsibilities at approximately 9:30 a.m. In so doing, he utilized a ladder to gain access to a second story window and subsequently fell from the ladder from a height of approximately 18 feet, resulting in compound fractures to both his right and left ankles.
Claimant was initially treated at the University of Pittsburgh Medical Center ("UPMC") in Braddock, Pennsylvania. As a result of the work injury, State Workers Insurance Fund ("SWIF"), the insurer for Expert, conducted an initial investigation and determined potential compensability for the alleged incident. SWIF's investigation commenced with an interview of the Claimant and a subsequent interview with the owner of the insured. In each instance, neither the Claimant nor the owner of the insured indicated that Claimant had been drinking or appeared intoxicated. Given the straightforwardness of the claim, SWIF accepted compensability and thereafter issued a notice of compensation payable.
After issuing the notice of compensation payable, SWIF secured medical records from UPMC which indicated that Claimant had consumed two beers prior to commencing work, had a history of alcoholism and typically drank two six packs per day. Further, a blood chemistry test was performed at approximately 11:32 a.m. at UPMC and revealed an ethanol level of 238 mg. per deciliter. Upon receipt of the medical records from UPMC, SWIF immediately filed a petition to review compensation benefits ("review petition"), attempting to set-aside the previously issued notice of compensation payable. SWIF requested permission to set-aside the erroneously issued Bureau document under §413(a) of the Act and §301(a) of the Act.
Claimant, through his attorney, alleged SWIF was estopped from attempting to set-aside the notice of compensation payable because it had the opportunity to conduct a more thorough investigation or, alternatively, it could have issued a notice of temporary compensation payable which would have provided an additional ninety (90) days for continuance of the ongoing investigation. In anticipation of this initial threshold argument advanced by Claimant, the testimony of Maureen Zingerman, claims supervisor of SWIF, was presented. Likewise, the expert medical testimony of John J. Shane, M.D., ("Dr. Shane"), a board-certified physician in both clinical and anatomical pathology, as well as clinical toxicology, was also presented. Dr. Shane opined that, based upon the timing of blood chemistry tests, Claimant's height and weight at the time of his fall, Claimant had the equivalent of 13 one-ounce shots of whiskey or 13 twelve-ounce beers in his blood which substantially impaired his ability to negotiate the ladder which ultimately caused his fall.
The assigned adjudicator found the testimony of Mrs. Zingerman and Dr. Shane both credible and persuasive. She accepted as credible the testimony of Claimant to the extent he acknowledged the history of alcoholism, the habit of drinking two six packs per day and that he had, in fact, consumed alcohol before work. She rejected, in all other respects, his testimony to the extent he did not have any more than two beers before work.
The assigned adjudicator ultimately granted the review petition and provided SWIF the opportunity to exempt from coverage of the claim. Thereafter, Claimant initiated an appeal to the Workers' Compensation Appeal Board ("WCAB"). In a unanimous decision, the WCAB affirmed the WCJ's decision granting SWIF’s underlying petition. Claimant initiated an additional appeal to the Commonwealth Court of Pennsylvania. On October 8, 2003, the Commonwealth Court heard oral argument en banc in the Supreme Court chambers of the City-County building in Pittsburgh, Pennsylvania. The case was argued orally by Brian D. Walters, Esquire on behalf of SWIF before seven judges of the Commonwealth Court, including President Judge James Gardner Colins.
II. CASE HOLDING: In a 5 to 2 majority decision authored by President Judge Colins, the Commonwealth Court of Pennsylvania held that SWIF was not precluded and/or estopped from setting-aside the notice of compensation payable under §413(a) of the Act and further the evidence of record did, in fact, demonstrate that SWIF satisfied its requisite burden of proof establishing that Claimant's work injury was caused by his intoxication and, thus, SWIF was exempt from coverage of the claim.
In Mahon, the Commonwealth Court of Pennsylvania’s decision qualifies as precedential authority for the legal proposition that an insurance carrier must demonstrate a good faith basis when issuing a notice of temporary compensation payable instead of a notice of compensation payable. Through invocation of the standard created in Mahon, the issuance of a notice of temporary compensation payable is only appropriate if the investigation by the insurance carrier is incomplete after twenty-one (21) days. If the investigation is complete, the insurance carrier should either issue a notice of denial or, alternatively, accept compensability through the issuance of a notice of compensation payable.
The second equally as interesting component of the Commonwealth Court of Pennsylvania’s decision in Mahon addresses the standard for exempting from coverage when a claimant is intoxicated. In Mahon, the Commonwealth Court of Pennsylvania noted it was addressing an issue of "first impression" regarding whether a "but-for" analysis should be implicated when evaluating the intoxication defense. The Commonwealth Court explained the term "but-for," as used in Section 301(a) of the Act has a similar meaning and effect of the term as used in negligence actions and, in so doing, concluded that SWIF's sole burden was only to establish for the finder of fact by competent and substantial evidence, that the claimant would not have fallen and sustained his injuries had he not been intoxicated. Indeed, SWIF’s expert medical witness testified within a reasonable degree of medical certainty that Claimant’s high level of intoxication caused his fall.
The Commonwealth Court of Pennsylvania further reasoned it would be a fundamentally unfair burden on SWIF to require it to establish the existence of all possible alternative causes for Claimant’s fall on the date in question. In the absence of credible evidence for an alternative reason for Claimant’s fall, the Commonwealth Court concluded that SWIF satisfied its burden of proof in the litigation of the underlying matter.
III. PRACTICAL ADVICE AND STRATEGY: This case is significant for two reasons: First, the Commonwealth Court has re-clarified the standard for when it is appropriate to issue a notice of temporary compensation payable versus a notice of compensation payable. In Mahon, the Commonwealth Court of Pennsylvania explained that a notice of temporary compensation payable should only be issued if the investigation into the compensability of the claim is in some way incomplete. If the investigation has, in fact, been completed, the employer and/or its insurance carrier/administrator should either be issuing a notice of denial or a notice of compensation payable.
Further, in attempting to exempt from coverage under §301(a) of the Act, the mere submission of blood alcohol testing results will not, in all likelihood, in and of itself be sufficient to avoid implication of liability. Alternatively, the employer or its insurance administrator/carrier are encouraged to retain an expert medical witness to offer the unequivocal opinion that the reported level of intoxication directly caused the fall, invoking the "but for" analysis established by the Commonwealth Court of Pennsylvania in Mahon.