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SupremeCourtofPennsylvania
Court of Common Pleas For Prothonotary Use Only: TIM
Civil Cover Sheet Docket No:
ES
TA
MP
DELAWARE
_______________________________ County
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Commencement of Action:
Complaint Writ of Summons Petition
S Transfer from Another Jurisdiction Declaration of Taking
E
Lead Plaintiff’s Name: Lead Defendant’s Name:
C CONCEPCION MORALES CHESTER UPLAND SCHOOL DISTRICT
T
Dollar Amount Requested: within arbitration limits
I Are money damages requested? Yes No (check one) outside arbitration limits
O
N Is this a Class Action Suit? Yes No Is this an MDJ Appeal? Yes No
A Mark R. Schmidt, Esquire
Name of Plaintiff/Appellant’s Attorney: _____________________________________________________________________
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Updated 1/1/2011
BY:
Mark R. Schmidt, Esq.
PA Attorney Id No. 58746
Schmidt, Kirifides & Rassias, PC
44 E. Front St., Box 318
Media, PA 19063
610-892-9300
Mschmidt@SKR.legal
______________________________________________________________________________
In The Court of Common Pleas of Delaware County, Pennsylvania
Civil Action - Law
Concepcion Morales :
314 W. 23rd Street :
Chester, PA 19013, :
Plaintiff : No.
v. :
:
Chester Upland School District :
1720 Melrose Avenue :
Chester, PA 19013 :
Defendant :
______________________________________________________________________________
PRAECIPE TO ENTER / TRANSFER JUDGMENT
To the Office Of Judicial Support:
I, Mark R. Schmidt, Esq., counsel for plaintiff, Concepcion Morales hereby state:
1. A Judgment may be entered in regard to a workers’ compensation claim, where
benefits have not been timely paid pursuant to Order, as set forth at 77 P.S. §§921, 951.
2. A Certified Copy of the Decision and Order of the Workers’ Compensation
Appeal Board entered December 3, 2019 (certified on March 10, 2020) is attached hereto, along
with the WCAB’s February 3, 2020 Order Denying defendant’s Petition for Supersedeas filed in
connection with their appeal of the foregoing Decision. (Ex. A, B).
3. These are the “Last Controlling Documents” in the workers’ compensation matter.
4. Attached hereto as (Ex. C) is the Decision of the Workers’ Compensation Judge
issued on September 14, 2018 awarding wage loss benefits rate the rate of $542.78 per week.
5. The Decision and Order of the WCAB REVERSED that portion of the Judge’s
decision terminating plaintiff’s benefits; having the legal effect of Reinstating plaintiff’s right to
benefits. Sheridan v. WCAB (Anzon, Inc.), 713 A.2d 182 (Pa. Cmwlth. 1998).
6. To date, employer has refused to issue payment of any and all benefits beyond
November 28, 2017, as Ordered by the terms and effect of the WCAB’s Decision.
7. From November 29, 2017 to February 12, 2021 is 1171 days, or 167.3 weeks,
yielding past due benefits in the amount of $90,807.09 (plus Statutory Interest as imposed by the
Workers’ Compensation Act).
8. Pursuant to the Decision of the WC Judge, and not Reversed by the WCAB,
plaintiff’s counsel, Mark R. Schmidt, Esq’s 20% fee was approved (Ex C, ff. 47; Order).
9. A Judgment Entered on a Workers’ Compensation Award is limited to
$30,000.00. Subsequent Judgments may be entered upon further non-compliance by the
defendant following this Request.
WHEREFORE, plaintiff requests Judgment be Entered against the defendant, Chester
Upland School District in the amount of $30,0000.00, to be credited against the full award of
benefits payable per the above Decision of the WCAB, 80% whereof is to be paid/payable to
plaintiff Morales, and 20% to be paid/payable to counsel.
Respectfully Submitted,
By: ______________________
Mark R. Schmidt, Esq.
Attorney for plaintiff
__________________________________________________________________
In The Court of Common Pleas of Delaware County, Pennsylvania
Civil Action - Law
Concepcion Morales, :
Plaintiff : No.
v. :
:
Chester Upland School District, :
Defendant :
__________________________________________________________________
ORDER
AND NOW, this ____ day of _____________, 2021, JUDGMENT is
hereby ENTERED in favor of plaintiff, Concepcion Morales, and against
defendant, Chester Upland School District in the amount of $30,000.00, as
permitted, and limited, by the terms of the Pennsylvania Workers’ Compensation
Act, 77 P.S. §§921, 951. Further ORDERS may be entered upon proof of ongoing
non-compliance with the Decisions and Orders issued in the workers’
compensation forum.
BY THE COURT:
______________________
EXHIBIT A
WCAB DECISION ISSUED 12/03/2019
Certified on 03/10/2020
Mar 6 2020 12 HPM SKR Legak No 3600 P 1/2? .
SCHMIDT KIRIFIDES & RASSIAS
A PROFESSIONAL CORPORATION
VASII L I([RII‘IDFS * POST OFFICE Box 318 Amomsmnsnopnc m V
GEO RGE c RASSIAS 44 am mom Smear 0F Comm
ANNAV RIO * Mama, PENNSYLVANIA 19063
T 610 892 9300
* CE!“lFLEDWOIIKERS'CDNIl‘ENSATIDNSPECIALIST F 610 392 9333 M ARK R SCHMIDT
MSchmidt@SICR.legal
WWW PAHURTATWORKCOM BRA)! DI DINENNU,
LE GAL ASSISTANT
BDiNannu@SKR.legal
LABOR & INDUSTRY
Received
Ma} ch 6 2020 MAR 6 2020
BQreau of Workers' Comp
Via Facsumle 717 783 6265 Clams Management DEVision
Bureau ofWOI kels' Compensation RECORDS UNIT
Room 103 ‘
1171 South Cameron Sn eat '
Hamsbulg PA 17104- 2501
Attention Recmds Divisl- I e MT/Fy
Re Cones . nor: Mo: ales Chester Upland School District
SochSecurily ‘umber 209 58 1260
InjuryDate 05/01/2015
Deal Sii/Madam I
Please find enclosed the Decision and 01 dex issued by the kae1s' Compensation Appeal Boald on
Decembci 3, 2019 in regal d to the above captioned matter1am ncspectfully requestlng a sex tified copy of
this Appeal Boa1d Decision fox pm poses ofexecuting on the employers assets, ifnecessary Thank you fox
yam time and attention to the above
Respectfully submitted
SCHMIDT KIRIFIDES & RASSIAS PC
BY 3/ Mark R Schmidt
MARK R SCHMIDT
MRS bmd
Enclosul 6-
cc Conception Mmales (w/o anal)
Mal k Gulasarian, Esquire (w/o end]
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Determination Reversed In part
Opinion
CONCEPCION MORALES V CHESTER UPLAND SCHOOL DISTRICT
Attached is a copy of an Opinion from the Workers' Compensation Appeal Board filed this date
in the above captioned case An appeal to the Commonwealth Court of Pennsylvania may be
taken by any party aggrieved by the Board's decision, provided such appeal is taken within (30)
days after the mailing date of the Board 5 decision The Board is not responsible for the filing or
processing of further appeals to the Court Further appeals may be filed in person or by mail
(accompanied by U 5 Postal Services Form 3817) With the Prothonotary of the Commonwealth
Court of Pennsylvania 601 Commonwealth Avenue, Suite 2100, PO Box 69185, Harrisburg, PA
17106 9185 The Commonwealth Court may also be contacted at 717 255 1650 with questions
related to a further appeal
Interested Parties
Claimant/Employee
CONCEPCION MORALES
314 W 23RD ST
CHESTER, PA 1.9013
Claimant's Attorney
Mark R Schmidt, ESQ
PO Box 318
Media, PA 19063 0318
Defendant/Employer
CHESTER UPLAND SCHOOL DISTRICT
18TH 8: MELROSE AVENUE
CHESTER, PA 19013
Defendant s Attorney
Cecilia M Muneses, ESQ
1 S Olive St
Media, PA 19063 3301
Insurer
SUSSEX INSURANCE COMPANY
PO BOX 100165
COLUMBIA, SC 29202 3165
Departrhfiefi‘t. 5f Labor and lndu§fi7l Workers’ Compensation Appeal Board
PA 17104
1171 S Cameron Street Rm 1203 | Harrisburg
Phone 717 7837838 | Fax 717 772 0343| Emailra II Wcab@pa gov I www dli pa gov
AuxJIiary aids and serwces are available upon request to Indlvldua/s with disabilities
Equal Opportunity Employer/Program
Mar 6 2020 12 11PM SKR Legal No 3600 P 3/2?
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1M?!“ DEPAHfMLNf OF LABOR & mousrm' .
TPA
Compservices Inc/AmeriHealth Casualty Services
PO BOX 58579
PHILADELPHIA, PA 19102 8579
Associated Recipients
Additional Defendants
Notes
Department of Labor and Industry E Workers' Compensation Appeat Board
1171 S Cameron Street Rm 12013 I Harrisburg, PA 17104
Phone 717 7837838 | Fax 717 772 0343| Ema” ra 1!weab@pa gov [www dli pa gov
Auxiliary aids and services are walkable upon request to individuals with disabilities
Equal Opportunity Employer/Program
Mar 6 2020 12 11PM SKR Lega] No 3600 P 4/22
Concepcion Morales v Chester Upland School District Page 1 of 19
A184030
OPINION
WILDERNIAN COMMISSIONER
Before the Workers Compensation Appeal Board (Board) are appeals of
Concepcion Morales (Claimant) and Chester Upland School District (Defendant) from
the Decision and Order of Workers Compensation Judge (WCJ) Sarah Makin granting
a Claim Petition for Workers Compensation (Claim Petition), a Petition to Review
Compensation Benefits (Review Petition), and a Petition to Reinstate Compensation
Benefits (Reinstatement Petition) filed by Claimant and granting a Petition to Terminate
Compensation Benefits (Termination Petition) filed by Defendant We reverse the grant
of termination and otherwise affirm
On May 29 2015 Defendant issued a Notice of Temporary Compensation
Payable for a date of injury of May 1 2015 (Exb C 1) On June 15 2015 Defendant
issued a Notice Stopping Temporary Compensation and a Notice of Compensation
Payable (NCP) The NCP described the injury as a cervical sprain/strain and provided
for indemnity benefits beginning May 7 2015 (Exbs C2 C 3)
Also on June 15, 2015, Defendant issued a Notification of Suspension effective
June 9, 2015, on the basis of Claimant 5 return to won< at no loss of earnings (Exb C
4) The parties then entered into a Supplemental Agreement reinstating indemnity
benefits as of June 19 2015 (Exb C 5) Indemnity benefits were again suspended by
a Notification of Suspension effective October6 2015 (Exb D 1)
Defendant filed a termination petition in January 2016 alleging Claimant's failure
without a reasonable excuse, to attend an independent medical examination despite
being ordered to do so By a decision and order circulated on May 3, 2016 WCJ
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A181030
Joseph Stokes denied termination He granted a suspension of indemnity and medical
benefits until Claimant attended a physical examination (Exb D 3)
On July 28 2017 Ciaimant filed a Review Petition and a Reinstatement Petition
alleging an incorrect description of injuryand a worsening of condition resulting in
surgery On the same date Claimant filed a Claim Petition alleging work related injuries
to his neck left arm and mid back occurring on May 1 2015 The Claim Petition further
alleged full disability from April14 2017 ongoing
On December 15I 2017, Defendant filed 2: Termination Petition alteging full
recovery as of November 28 2017
By a Decision and Order circulated on September 14 2018, the WCJ found
Claimants testimony credible In part She found Claimants medicat expert witness
credible in part and found the testimony of the independent medical examiner credible
in part The WCJ found that Claimant sustained a cervical strain and sprain
aggravation of cervical degenerative disc and joint disease, left cervical C7
radiculopathy and thoracic herniated discs at T6 7 and T7-8 with associated thoracic
radiculopathy She further found that he underwent cervical fusion surgery and that he
was able to return to fullduty effective November 28, 2017 Consequently, the WCJ
granted the Claim Review and Reinstatement Petitions She ordered an expansion of
the description of injury and awarded indemnity benefits from April 24 through
November 28, 2017 Based on her view of Claimants surgical scar. the WCJ awarded
10 weeks of compensation The WCJ also granted Defendant 5 Termination Petition as
of November 28 2017 Both parties appeal
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Concepcion Moralesv Chester Upland School District Page 3 Of 19
A18—1030
Our scope of review is limited to determining whether there is substantial
competent evidence to support necessary findings of fact made by the WCJ and _
whether the WCJ committed an error of law Bethenergy Mines v WCAB (Skirgan), !
612 A 2d 434 (Pa 1992) We are bound by the WCJ s findings unless there is no
competent evidence of record to support those findings jg
The Board functions as an appellate body its role is not toreweigh evidence or
review the credibility of witnesses, but only to determine whether upon consideration of i
the evidence as a whole, the WCJs findings have sufficient support in the record
Lehigh Comm V0 Tech School v WCAB (Wolfe) 652 A 2d 797 (Pa 1995)
Defendant appeals from the grant of the Claim Review and Reinstatement
Petitions arguing that the testimony of Claimants medical expert was incompetent
Claimant argues that the WCJ capriciously and irrationally disregarded uncontroverted
evidence supporting a more extensive expansion of the description of injury We
disagree as to both I
in a claim petition the claimant has the burden of proving allof the elements
necessary to support an award, including the existence of an injury and disability and
the duration of disability 1 Inglis House v WCAB {Reedy} 634 A 2d 592 (Pa 1993)
When an NCP does not correctly reflect the actual injury or enumerate all of the injuries
sustained in a work related incident a claimant may filea review petition, which is
treated likea claim petition Jeanes Hosp v WCAB (Hassi 872 A 2d 159 (Pa 2005)
As in a claim petition the claimant has the burden lg
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m1 5A 3d 230(Pa 2010)
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Concepcion Moralesv Chester Upland School District Page 4 of 19
A18—1030
To obtain a reinstatement of indemnity benefits, the claimant has the burden of
proving that his earning power is again adversely affected and that the disabilityis a
continuation of the disability that arose from the onginal claim Bufford v WCAB (N
Am Telecom), 2 A3d 548 (Pa 2010) The credible testimony of the claimant is
sufficient to support a finding that disability continues The burden then shifts to the
employer to prove the contrary Latte v WCAB (Latrobe Die Casting Co ) 642 A 2d
1083 (Pa 1994)
Claimant testified that he was employed by Defendant as a maintenance
groundsman (Claimant 10/4/17 at p 6) He stated that on the date of injury a tailgate
struck him in the shoulder, more in the middle than to either side He stated that he
went to the hospital on Sunday, reported the incident and filled out an incident report on
Monday and went to another hospital on Tuesday He only remembered tellingthe
emergency room personnel that he was in pain and stated that he told the panel
physician that he hurt his upper body and shoulders He did not remember if he
indicated one side or the other or both Claimant further stated that both sides hurt at
times but Iatetyithad been his right (N T 3/19/18 at pp 14 17) He testtfied that he
did his regular full duty job from the time when he was released in 2015 through the
beginning of 2017 with constant pain to the fight that got worse (Claimant at pp 21
46) He had surgery in April 2017 (N T 3/19/18 at p 18)
Claimant presented the testimony of Robert Sing, DO , board certified in family
sports, and emergency medicine, who firstsaw him on October 10, 2015 Claimant
advised Dr Sing that he was attaching a trailer hitch to a dump truck when a 300 pound
tailgate fell open and landed on his left shoulder knocking him to his knees Claimant’s
| I
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Concepcion Morales v Chester Upland School District Page 5 of 19 I
A1B-1030 _
comptaints were left neck left upper back and posterior shoulder pain with burning and
tingling into the leftupper extremity Claimant later developed right upper back and i
right anterior chest pain (Dr Sing 1/23/18 at pp 5 11 12) Dr Sing testifiedthat a '
cervical spine MRI on May 5 showed neurai foraminal narrowing on the left at 06 7 with
no evidence of a disc herniation A thoracic spine MRI showed a small central :
herniation at T6 7 and a small right central disc herniation at T7-8 both indenting but
not compressing the spinal cord Dr Sing 9 initialimpression was cervical pain left
shoulder pain and left07 radiculopathy status post work injury 5/1/2015 He stated :
that an EMG on June 26 2015 showed a moderately severe acute left C7
radiculopathy (|_d_
at pp 16 1718 18 19) Dr Singtestified that Claimantsright sided
complaints began sometime after his first visit They started as chest pain and
abdominal pain on the rightside and occasionally on the left There was no thoracic
cause and no cardiothoracic cause Dr Sing concluded that the chest pain was coming
from Claimant 8 back as the thoracic disc herniations got worse (|_d at pp 21 23, 25)
Dr Sing stated that there was a gap of just under 2 years in his treatment of
Claimant As of August 8 2017 Claimant had had cervical fusion surgery at 06-7 He
had increased function of the upper extremity but still had neck pain Dr Sing explained
that Claimant injured the left sided CG 7 neural foramen, which caused an acute
radiculopathy that progressed due to the work injury (|_q at pp 33 35) Dr Sing
further testified that Claimant was taking high doses of Ateve and Advil He stated that
anti inflammatory medication is a gastric irritant and opined that Clement suffered a GI
bleed secondary to NSAID induced gastropathy and finally peptic ulcer disease causing
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Concepcion Morales v Chester Upiand School District Page 6 of 19
A18—1030
a gastrointestinal hemorrhage, for which Claimant was seen at the ER on October 10, _
2017 (E at pp 36 33)
Dr Sing diagnosed Claimant with a cervical strain and sprain aggravation of .
cervical degenerative disc and joint disease, especiain left 067 neural foramina! I
narrowing with resultant left cervical C7 radicuiopathy, thoracic herniated discs at T6 7
and T78 with associated thoracic radiculopathy and gastrointestinal hemorrhage
secondary to NSAID gastropathy He associated those diagnoses with the work
incident on May1 2015 (g at pp 38-39) Dr Sing stated that Claimant had not been
able to return to his pre injury job since the surgery (Q at p 40) He explained that
Claimants right sided symptoms were generated from the thoracic disc herniations
which were seen In 2015 Dr Sing testified that the thoracic herniations were basically
bilateral and right sided which would affect both sides at various times consistent with
Claimant 5 complaints He had no other explanation for Claimant's ongoing complaints
of right-sided and left sidedchest and abdominal pain (1g at pp 41 44—45) Dr Sing
stated that during the time he did not see Claimant neck pain was documented by
emergency room records and Claimant saw Dr Garrett at Rothman, who ordered a
repeat cervical spine MRI and referred Claimant to Dr Rihn, who performed surgery
(|_d_
atp 69)
Defendant presented the testimony of Neil Kahanovitz, M D board certified in
orthopedic surgery, who examined Claimant on November 28 2017 Claimants right
upper extremity complaints were unchanged since his surgery in 2017 He had no left
upper extremity complaints Claimant was attending physical therapy and had not
worked since the surgery (Dr Kahanovitz 2/15/18 at pp 6 9 1011) Dr Kahanovitz
|
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A18 1030
testified that the May 3, 2015 emergency room triage notes did not record a traumatic
incident but rather insidious onset after waking up two days earlier which was
inconsistent with the history provided to him He stated that the tnage note from May 5
2015 at Crozier Chester Health Center was also inconsistent with Claimants account
Dr Kahanovitz described the findings of a May 5 2015 thoracic spine MRI as mild to
moderate degenerative changes and findings of a cervical spine MR] on the same date
as degenerative findings Based on discrepancies in the history the pain appearing to
be initially purely left sided Claimant’s ability to continue working for two years and the
recommendation for surgery two years taterfor right sided complaints, Dr Kahanovitz
opined that the surgery was not related to the wofl< injury He testified that the MRI
findings in 2017 showed progression of the degenerative disease but no evidence of an
acute traumatic injury and stated that if Claimant sustained a work related injury it
would have been a cervical strain (E at pp 15 19) Dr Kahanovitz further opined that
Ciaimant had fuilyrecovered could return to fullduty without restrictions and needed
no further treatment (101at p 20) He stated that it was possible that Claimant had an '
aggravation but his symptoms and need for surgery relative to an aggravation would be
inconsistent with the history provided as well as the initialleft sidecomplaints and
surgerytwo years later for right side complaints (g at p 22)
Dr Kahanovitz did not believe that the thoracic disc herniations were a result of a
work incident on May 1, 2015 He did not agree that Ciaimant s chest pain was due to
thoracic involvement because there was no evidence of cord or neurologic compression
that would lead to those symptoms Dr Kahanovitz further stated that there was no way
that a T6 7 herniation could lead to abdominal or lower quadrant symptoms (M at pp
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Concepcion Moraiesv Chester Upland School District Page 8 of 19
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24 25) He did not relate Claimant's inability to work to an incident on May 1 2015 (M
at p 30) On oross-examination, Dr Kahanovitz reiterated that he had never seen pain
from a thoracic disc herniation present as chest pain (1g at p 37) He agreed that the
type of over the-counter medications Claimant was taking has a known complication of
gastrointestinal issues (1g at pp 44)
The WCJ found Claimants testimony credible in part She noted that the injury
and arm pain were confirmed by the earliest medical records and the testimony of the
medical experts and, in part, by the NCP She did not find Dr Sing or Claimant entirely
credible With regard to the extent of Claimant’s work related injuries treatment and
the extent of disability the WCJ noted a penchant for exaggeration on Claimant 5 part
She observed that OVer a year after his surgery Claimant would not raise his right hand
to take the oath She found that Claimants emergency room visits for chest pain, lower
quadrant abdominal pain and blood pressure issues were not work related
The WCJ did not accept Dr Kahanovitz’s testimony limiting the work related
iniury to a cervical sprain and strain but accepted Dr Kahanovitz 5 opinion as to full
recovery The WCJ has complete authority over questions of credibility,conflicting
medical evidence and evidentiary weight Sherrod v WCAB (IhoroughgoodI Inc) 666
A 2d 383 (Pa melth 1995) The WCJ is free to accept or reject in whole or in part.
the testimony of any witness Lombardo v WCAB (T0295 Company, Inc 1,698 A 2d
1378 (Pa melth 1997)
Upon review, we affirm the WCJ 3 expansion of the description of injury
Defendant argues that Dr Sing’s testimony was based on a false history and was
therefore incompetent Claimant argues that the WCJ capricioust and irrationally
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disregarded evidence attnbuting a GI bleed and chest pain to his work related injury In
both instances, the parties are disputing credibiiity determinations The WCJ accepted
Claimants testimony in part but specifically observed based on his demeanor as a
witness that his testimony to additional injuries, hospitalizations and specifically
emergency room visits was not credible She stated objective reasons for discounting
Dr Sings testimony inpart and for accepting Dr Kahanovitzs testimony in part We
determine no error
Defendant additionally argues that reinstatement was barred by res judicata We
disagree
Section 314 of the Workers Compensation Act2 (Act) 77 P S §651 requires an
injured employee to submit to a physical examination or expert interview by an
approved health care provider or other expert, on request of the employer if the
employee refuses a WCJ may order him or her to submit on petition filed by the
employer The employee 3 refusal or neglect, without reasonable cause or excuse, to
submit to the ordered examination or interview causes the employee to forfeit
compensation during the period of refusal or neglect i_q The grant or denial of an
employers request for an independent medical examination of a claimant is a matter of
broad discretion for the WCJ who also has discretion to determine the reasonableness
(or lack thereof) of a claimants justification for refusing to submit to the examination
School District of Philadelphia v WCAB (Landon) 707A 2d 1176 (Pa meith 1998)
A claimant seeking a reinstatement of indemnity benefits has the burden of
pro
Preview
SupremeCourtofPennsylvania Court of Common Pleas For Prothonotary Use Only: TIM Civil Cover Sheet Docket No: ES TA MP DELAWARE _______________________________ County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: Complaint Writ of Summons Petition S Transfer from Another Jurisdiction Declaration of Taking E Lead Plaintiff’s Name: Lead Defendant’s Name: C CONCEPCION MORALES CHESTER UPLAND SCHOOL DISTRICT T Dollar Amount Requested: within arbitration limits I Are money damages requested? Yes No (check one) outside arbitration limits O N Is this a Class Action Suit? Yes No Is this an MDJ Appeal? Yes No A Mark R. Schmidt, Esquire Name of Plaintiff/Appellant’s Attorney: _____________________________________________________________________ Check here if you have no attorney (are a Self-Represented [Pro Se] Litigant) Nature of the Case: Place an “X” to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional Buyer Plaintiff Administrative Agencies Malicious Prosecution Debt Collection: Credit Card Board of Assessment Motor Vehicle Debt Collection: Other Board of Elections Nuisance ________________________ Dept. of Transportation Premises Liability ________________________ Statutory Appeal: Other S Product Liability (does not include _________________________ mass tort) Employment Dispute: _________________________ E Slander/Libel/ Defamation Discrimination Employment Dispute: Other Zoning Board C Other: ________________________ _________________________ Other: T _________________________ ________________________ _________________________ I Other: _________________________ MASS TORT ________________________ O Asbestos ________________________ N Tobacco Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Ejectment Common Law/Statutory Arbitration Other: Eminent Domain/Condemnation Declaratory Judgment B _________________________ Ground Rent Mandamus _________________________ Landlord/Tenant Dispute Non-Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial Quo Warranto Dental Partition Replevin Legal Quiet Title Other: Medical Other: Praecipe to Enter/Transfer _________________________ Other Professional: ________________________ Judgment _________________________ _________________________ ________________________ _________________________ Updated 1/1/2011 BY: Mark R. Schmidt, Esq. PA Attorney Id No. 58746 Schmidt, Kirifides & Rassias, PC 44 E. Front St., Box 318 Media, PA 19063 610-892-9300 Mschmidt@SKR.legal ______________________________________________________________________________ In The Court of Common Pleas of Delaware County, Pennsylvania Civil Action - Law Concepcion Morales : 314 W. 23rd Street : Chester, PA 19013, : Plaintiff : No. v. : : Chester Upland School District : 1720 Melrose Avenue : Chester, PA 19013 : Defendant : ______________________________________________________________________________ PRAECIPE TO ENTER / TRANSFER JUDGMENT To the Office Of Judicial Support: I, Mark R. Schmidt, Esq., counsel for plaintiff, Concepcion Morales hereby state: 1. A Judgment may be entered in regard to a workers’ compensation claim, where benefits have not been timely paid pursuant to Order, as set forth at 77 P.S. §§921, 951. 2. A Certified Copy of the Decision and Order of the Workers’ Compensation Appeal Board entered December 3, 2019 (certified on March 10, 2020) is attached hereto, along with the WCAB’s February 3, 2020 Order Denying defendant’s Petition for Supersedeas filed in connection with their appeal of the foregoing Decision. (Ex. A, B). 3. These are the “Last Controlling Documents” in the workers’ compensation matter. 4. Attached hereto as (Ex. C) is the Decision of the Workers’ Compensation Judge issued on September 14, 2018 awarding wage loss benefits rate the rate of $542.78 per week. 5. The Decision and Order of the WCAB REVERSED that portion of the Judge’s decision terminating plaintiff’s benefits; having the legal effect of Reinstating plaintiff’s right to benefits. Sheridan v. WCAB (Anzon, Inc.), 713 A.2d 182 (Pa. Cmwlth. 1998). 6. To date, employer has refused to issue payment of any and all benefits beyond November 28, 2017, as Ordered by the terms and effect of the WCAB’s Decision. 7. From November 29, 2017 to February 12, 2021 is 1171 days, or 167.3 weeks, yielding past due benefits in the amount of $90,807.09 (plus Statutory Interest as imposed by the Workers’ Compensation Act). 8. Pursuant to the Decision of the WC Judge, and not Reversed by the WCAB, plaintiff’s counsel, Mark R. Schmidt, Esq’s 20% fee was approved (Ex C, ff. 47; Order). 9. A Judgment Entered on a Workers’ Compensation Award is limited to $30,000.00. Subsequent Judgments may be entered upon further non-compliance by the defendant following this Request. WHEREFORE, plaintiff requests Judgment be Entered against the defendant, Chester Upland School District in the amount of $30,0000.00, to be credited against the full award of benefits payable per the above Decision of the WCAB, 80% whereof is to be paid/payable to plaintiff Morales, and 20% to be paid/payable to counsel. Respectfully Submitted, By: ______________________ Mark R. Schmidt, Esq. Attorney for plaintiff __________________________________________________________________ In The Court of Common Pleas of Delaware County, Pennsylvania Civil Action - Law Concepcion Morales, : Plaintiff : No. v. : : Chester Upland School District, : Defendant : __________________________________________________________________ ORDER AND NOW, this ____ day of _____________, 2021, JUDGMENT is hereby ENTERED in favor of plaintiff, Concepcion Morales, and against defendant, Chester Upland School District in the amount of $30,000.00, as permitted, and limited, by the terms of the Pennsylvania Workers’ Compensation Act, 77 P.S. §§921, 951. Further ORDERS may be entered upon proof of ongoing non-compliance with the Decisions and Orders issued in the workers’ compensation forum. BY THE COURT: ______________________ EXHIBIT A WCAB DECISION ISSUED 12/03/2019 Certified on 03/10/2020 Mar 6 2020 12 HPM SKR Legak No 3600 P 1/2? . SCHMIDT KIRIFIDES & RASSIAS A PROFESSIONAL CORPORATION VASII L I([RII‘IDFS * POST OFFICE Box 318 Amomsmnsnopnc m V GEO RGE c RASSIAS 44 am mom Smear 0F Comm ANNAV RIO * Mama, PENNSYLVANIA 19063 T 610 892 9300 * CE!“lFLEDWOIIKERS'CDNIl‘ENSATIDNSPECIALIST F 610 392 9333 M ARK R SCHMIDT MSchmidt@SICR.legal WWW PAHURTATWORKCOM BRA)! DI DINENNU, LE GAL ASSISTANT BDiNannu@SKR.legal LABOR & INDUSTRY Received Ma} ch 6 2020 MAR 6 2020 BQreau of Workers' Comp Via Facsumle 717 783 6265 Clams Management DEVision Bureau ofWOI kels' Compensation RECORDS UNIT Room 103 ‘ 1171 South Cameron Sn eat ' Hamsbulg PA 17104- 2501 Attention Recmds Divisl- I e MT/Fy Re Cones . nor: Mo: ales Chester Upland School District SochSecurily ‘umber 209 58 1260 InjuryDate 05/01/2015 Deal Sii/Madam I Please find enclosed the Decision and 01 dex issued by the kae1s' Compensation Appeal Boald on Decembci 3, 2019 in regal d to the above captioned matter1am ncspectfully requestlng a sex tified copy of this Appeal Boa1d Decision fox pm poses ofexecuting on the employers assets, ifnecessary Thank you fox yam time and attention to the above Respectfully submitted SCHMIDT KIRIFIDES & RASSIAS PC BY 3/ Mark R Schmidt MARK R SCHMIDT MRS bmd Enclosul 6- cc Conception Mmales (w/o anal) Mal k Gulasarian, Esquire (w/o end] Mar 6 2020 12 HPM SKR Legal No 3600 P 2/22 , @3223 : bamsyivmfia fiftfflfégzpfif mm: 1);?!“ng 53292 DE Wimmm OF LABGH & mousmv Appeal Case A18 1030 Oplnlon Maillng Date 12/3/2019 Determination Reversed In part Opinion CONCEPCION MORALES V CHESTER UPLAND SCHOOL DISTRICT Attached is a copy of an Opinion from the Workers' Compensation Appeal Board filed this date in the above captioned case An appeal to the Commonwealth Court of Pennsylvania may be taken by any party aggrieved by the Board's decision, provided such appeal is taken within (30) days after the mailing date of the Board 5 decision The Board is not responsible for the filing or processing of further appeals to the Court Further appeals may be filed in person or by mail (accompanied by U 5 Postal Services Form 3817) With the Prothonotary of the Commonwealth Court of Pennsylvania 601 Commonwealth Avenue, Suite 2100, PO Box 69185, Harrisburg, PA 17106 9185 The Commonwealth Court may also be contacted at 717 255 1650 with questions related to a further appeal Interested Parties Claimant/Employee CONCEPCION MORALES 314 W 23RD ST CHESTER, PA 1.9013 Claimant's Attorney Mark R Schmidt, ESQ PO Box 318 Media, PA 19063 0318 Defendant/Employer CHESTER UPLAND SCHOOL DISTRICT 18TH 8: MELROSE AVENUE CHESTER, PA 19013 Defendant s Attorney Cecilia M Muneses, ESQ 1 S Olive St Media, PA 19063 3301 Insurer SUSSEX INSURANCE COMPANY PO BOX 100165 COLUMBIA, SC 29202 3165 Departrhfiefi‘t. 5f Labor and lndu§fi7l Workers’ Compensation Appeal Board PA 17104 1171 S Cameron Street Rm 1203 | Harrisburg Phone 717 7837838 | Fax 717 772 0343| Emailra II Wcab@pa gov I www dli pa gov AuxJIiary aids and serwces are available upon request to Indlvldua/s with disabilities Equal Opportunity Employer/Program Mar 6 2020 12 11PM SKR Legal No 3600 P 3/2? W ' I! Efififlfillugilggjgggr w wmmfimmfia > 1M?!“ DEPAHfMLNf OF LABOR & mousrm' . TPA Compservices Inc/AmeriHealth Casualty Services PO BOX 58579 PHILADELPHIA, PA 19102 8579 Associated Recipients Additional Defendants Notes Department of Labor and Industry E Workers' Compensation Appeat Board 1171 S Cameron Street Rm 12013 I Harrisburg, PA 17104 Phone 717 7837838 | Fax 717 772 0343| Ema” ra 1!weab@pa gov [www dli pa gov Auxiliary aids and services are walkable upon request to individuals with disabilities Equal Opportunity Employer/Program Mar 6 2020 12 11PM SKR Lega] No 3600 P 4/22 Concepcion Morales v Chester Upland School District Page 1 of 19 A184030 OPINION WILDERNIAN COMMISSIONER Before the Workers Compensation Appeal Board (Board) are appeals of Concepcion Morales (Claimant) and Chester Upland School District (Defendant) from the Decision and Order of Workers Compensation Judge (WCJ) Sarah Makin granting a Claim Petition for Workers Compensation (Claim Petition), a Petition to Review Compensation Benefits (Review Petition), and a Petition to Reinstate Compensation Benefits (Reinstatement Petition) filed by Claimant and granting a Petition to Terminate Compensation Benefits (Termination Petition) filed by Defendant We reverse the grant of termination and otherwise affirm On May 29 2015 Defendant issued a Notice of Temporary Compensation Payable for a date of injury of May 1 2015 (Exb C 1) On June 15 2015 Defendant issued a Notice Stopping Temporary Compensation and a Notice of Compensation Payable (NCP) The NCP described the injury as a cervical sprain/strain and provided for indemnity benefits beginning May 7 2015 (Exbs C2 C 3) Also on June 15, 2015, Defendant issued a Notification of Suspension effective June 9, 2015, on the basis of Claimant 5 return to won< at no loss of earnings (Exb C 4) The parties then entered into a Supplemental Agreement reinstating indemnity benefits as of June 19 2015 (Exb C 5) Indemnity benefits were again suspended by a Notification of Suspension effective October6 2015 (Exb D 1) Defendant filed a termination petition in January 2016 alleging Claimant's failure without a reasonable excuse, to attend an independent medical examination despite being ordered to do so By a decision and order circulated on May 3, 2016 WCJ Mar 6 2020 12 12PM SKR Legal No 3600 P 5/22 Concepcion Morates v Chester Upland School District Page 2 of 19 A181030 Joseph Stokes denied termination He granted a suspension of indemnity and medical benefits until Claimant attended a physical examination (Exb D 3) On July 28 2017 Ciaimant filed a Review Petition and a Reinstatement Petition alleging an incorrect description of injuryand a worsening of condition resulting in surgery On the same date Claimant filed a Claim Petition alleging work related injuries to his neck left arm and mid back occurring on May 1 2015 The Claim Petition further alleged full disability from April14 2017 ongoing On December 15I 2017, Defendant filed 2: Termination Petition alteging full recovery as of November 28 2017 By a Decision and Order circulated on September 14 2018, the WCJ found Claimants testimony credible In part She found Claimants medicat expert witness credible in part and found the testimony of the independent medical examiner credible in part The WCJ found that Claimant sustained a cervical strain and sprain aggravation of cervical degenerative disc and joint disease, left cervical C7 radiculopathy and thoracic herniated discs at T6 7 and T7-8 with associated thoracic radiculopathy She further found that he underwent cervical fusion surgery and that he was able to return to fullduty effective November 28, 2017 Consequently, the WCJ granted the Claim Review and Reinstatement Petitions She ordered an expansion of the description of injury and awarded indemnity benefits from April 24 through November 28, 2017 Based on her view of Claimants surgical scar. the WCJ awarded 10 weeks of compensation The WCJ also granted Defendant 5 Termination Petition as of November 28 2017 Both parties appeal Mar 6 2020 12 12PM SKR Legal No 3600 P 6/22 Concepcion Moralesv Chester Upland School District Page 3 Of 19 A18—1030 Our scope of review is limited to determining whether there is substantial competent evidence to support necessary findings of fact made by the WCJ and _ whether the WCJ committed an error of law Bethenergy Mines v WCAB (Skirgan), ! 612 A 2d 434 (Pa 1992) We are bound by the WCJ s findings unless there is no competent evidence of record to support those findings jg The Board functions as an appellate body its role is not toreweigh evidence or review the credibility of witnesses, but only to determine whether upon consideration of i the evidence as a whole, the WCJs findings have sufficient support in the record Lehigh Comm V0 Tech School v WCAB (Wolfe) 652 A 2d 797 (Pa 1995) Defendant appeals from the grant of the Claim Review and Reinstatement Petitions arguing that the testimony of Claimants medical expert was incompetent Claimant argues that the WCJ capriciously and irrationally disregarded uncontroverted evidence supporting a more extensive expansion of the description of injury We disagree as to both I in a claim petition the claimant has the burden of proving allof the elements necessary to support an award, including the existence of an injury and disability and the duration of disability 1 Inglis House v WCAB {Reedy} 634 A 2d 592 (Pa 1993) When an NCP does not correctly reflect the actual injury or enumerate all of the injuries sustained in a work related incident a claimant may filea review petition, which is treated likea claim petition Jeanes Hosp v WCAB (Hassi 872 A 2d 159 (Pa 2005) As in a claim petition the claimant has the burden lg Jngfci‘ifltgefmi {53:3 Sfoifa‘ii‘étfi§§$§f$§fi§§2r22§§0§33n 23133223}'éTs‘fétfiT DE}: Eérvriéféegffit m1 5A 3d 230(Pa 2010) I Mar 6 2020 12 12PM SKR Legat No 3600 P 7/2? Concepcion Moralesv Chester Upland School District Page 4 of 19 A18—1030 To obtain a reinstatement of indemnity benefits, the claimant has the burden of proving that his earning power is again adversely affected and that the disabilityis a continuation of the disability that arose from the onginal claim Bufford v WCAB (N Am Telecom), 2 A3d 548 (Pa 2010) The credible testimony of the claimant is sufficient to support a finding that disability continues The burden then shifts to the employer to prove the contrary Latte v WCAB (Latrobe Die Casting Co ) 642 A 2d 1083 (Pa 1994) Claimant testified that he was employed by Defendant as a maintenance groundsman (Claimant 10/4/17 at p 6) He stated that on the date of injury a tailgate struck him in the shoulder, more in the middle than to either side He stated that he went to the hospital on Sunday, reported the incident and filled out an incident report on Monday and went to another hospital on Tuesday He only remembered tellingthe emergency room personnel that he was in pain and stated that he told the panel physician that he hurt his upper body and shoulders He did not remember if he indicated one side or the other or both Claimant further stated that both sides hurt at times but Iatetyithad been his right (N T 3/19/18 at pp 14 17) He testtfied that he did his regular full duty job from the time when he was released in 2015 through the beginning of 2017 with constant pain to the fight that got worse (Claimant at pp 21 46) He had surgery in April 2017 (N T 3/19/18 at p 18) Claimant presented the testimony of Robert Sing, DO , board certified in family sports, and emergency medicine, who firstsaw him on October 10, 2015 Claimant advised Dr Sing that he was attaching a trailer hitch to a dump truck when a 300 pound tailgate fell open and landed on his left shoulder knocking him to his knees Claimant’s | I Mar 6 2020 12 13PM SKR Legal No 3600 P 8/2? Concepcion Morales v Chester Upland School District Page 5 of 19 I A1B-1030 _ comptaints were left neck left upper back and posterior shoulder pain with burning and tingling into the leftupper extremity Claimant later developed right upper back and i right anterior chest pain (Dr Sing 1/23/18 at pp 5 11 12) Dr Sing testifiedthat a ' cervical spine MRI on May 5 showed neurai foraminal narrowing on the left at 06 7 with no evidence of a disc herniation A thoracic spine MRI showed a small central : herniation at T6 7 and a small right central disc herniation at T7-8 both indenting but not compressing the spinal cord Dr Sing 9 initialimpression was cervical pain left shoulder pain and left07 radiculopathy status post work injury 5/1/2015 He stated : that an EMG on June 26 2015 showed a moderately severe acute left C7 radiculopathy (|_d_ at pp 16 1718 18 19) Dr Singtestified that Claimantsright sided complaints began sometime after his first visit They started as chest pain and abdominal pain on the rightside and occasionally on the left There was no thoracic cause and no cardiothoracic cause Dr Sing concluded that the chest pain was coming from Claimant 8 back as the thoracic disc herniations got worse (|_d at pp 21 23, 25) Dr Sing stated that there was a gap of just under 2 years in his treatment of Claimant As of August 8 2017 Claimant had had cervical fusion surgery at 06-7 He had increased function of the upper extremity but still had neck pain Dr Sing explained that Claimant injured the left sided CG 7 neural foramen, which caused an acute radiculopathy that progressed due to the work injury (|_q at pp 33 35) Dr Sing further testified that Claimant was taking high doses of Ateve and Advil He stated that anti inflammatory medication is a gastric irritant and opined that Clement suffered a GI bleed secondary to NSAID induced gastropathy and finally peptic ulcer disease causing M&Y 6 2020 i2 13PM SKR Legal No 3600 P 9/22 Concepcion Morales v Chester Upiand School District Page 6 of 19 A18—1030 a gastrointestinal hemorrhage, for which Claimant was seen at the ER on October 10, _ 2017 (E at pp 36 33) Dr Sing diagnosed Claimant with a cervical strain and sprain aggravation of . cervical degenerative disc and joint disease, especiain left 067 neural foramina! I narrowing with resultant left cervical C7 radicuiopathy, thoracic herniated discs at T6 7 and T78 with associated thoracic radiculopathy and gastrointestinal hemorrhage secondary to NSAID gastropathy He associated those diagnoses with the work incident on May1 2015 (g at pp 38-39) Dr Sing stated that Claimant had not been able to return to his pre injury job since the surgery (Q at p 40) He explained that Claimants right sided symptoms were generated from the thoracic disc herniations which were seen In 2015 Dr Sing testified that the thoracic herniations were basically bilateral and right sided which would affect both sides at various times consistent with Claimant 5 complaints He had no other explanation for Claimant's ongoing complaints of right-sided and left sidedchest and abdominal pain (1g at pp 41 44—45) Dr Sing stated that during the time he did not see Claimant neck pain was documented by emergency room records and Claimant saw Dr Garrett at Rothman, who ordered a repeat cervical spine MRI and referred Claimant to Dr Rihn, who performed surgery (|_d_ atp 69) Defendant presented the testimony of Neil Kahanovitz, M D board certified in orthopedic surgery, who examined Claimant on November 28 2017 Claimants right upper extremity complaints were unchanged since his surgery in 2017 He had no left upper extremity complaints Claimant was attending physical therapy and had not worked since the surgery (Dr Kahanovitz 2/15/18 at pp 6 9 1011) Dr Kahanovitz | Mar 6 2020 1? 13PM SKR Legal No 3600 P 10/22 Concepcion Morales v Chester Upland School District Page 7 0f 19 A18 1030 testified that the May 3, 2015 emergency room triage notes did not record a traumatic incident but rather insidious onset after waking up two days earlier which was inconsistent with the history provided to him He stated that the tnage note from May 5 2015 at Crozier Chester Health Center was also inconsistent with Claimants account Dr Kahanovitz described the findings of a May 5 2015 thoracic spine MRI as mild to moderate degenerative changes and findings of a cervical spine MR] on the same date as degenerative findings Based on discrepancies in the history the pain appearing to be initially purely left sided Claimant’s ability to continue working for two years and the recommendation for surgery two years taterfor right sided complaints, Dr Kahanovitz opined that the surgery was not related to the wofl< injury He testified that the MRI findings in 2017 showed progression of the degenerative disease but no evidence of an acute traumatic injury and stated that if Claimant sustained a work related injury it would have been a cervical strain (E at pp 15 19) Dr Kahanovitz further opined that Ciaimant had fuilyrecovered could return to fullduty without restrictions and needed no further treatment (101at p 20) He stated that it was possible that Claimant had an ' aggravation but his symptoms and need for surgery relative to an aggravation would be inconsistent with the history provided as well as the initialleft sidecomplaints and surgerytwo years later for right side complaints (g at p 22) Dr Kahanovitz did not believe that the thoracic disc herniations were a result of a work incident on May 1, 2015 He did not agree that Ciaimant s chest pain was due to thoracic involvement because there was no evidence of cord or neurologic compression that would lead to those symptoms Dr Kahanovitz further stated that there was no way that a T6 7 herniation could lead to abdominal or lower quadrant symptoms (M at pp Mar 6 2020 12 14PM SKR Legai No 3600 P 11/22 Concepcion Moraiesv Chester Upland School District Page 8 of 19 A18—1030 24 25) He did not relate Claimant's inability to work to an incident on May 1 2015 (M at p 30) On oross-examination, Dr Kahanovitz reiterated that he had never seen pain from a thoracic disc herniation present as chest pain (1g at p 37) He agreed that the type of over the-counter medications Claimant was taking has a known complication of gastrointestinal issues (1g at pp 44) The WCJ found Claimants testimony credible in part She noted that the injury and arm pain were confirmed by the earliest medical records and the testimony of the medical experts and, in part, by the NCP She did not find Dr Sing or Claimant entirely credible With regard to the extent of Claimant’s work related injuries treatment and the extent of disability the WCJ noted a penchant for exaggeration on Claimant 5 part She observed that OVer a year after his surgery Claimant would not raise his right hand to take the oath She found that Claimants emergency room visits for chest pain, lower quadrant abdominal pain and blood pressure issues were not work related The WCJ did not accept Dr Kahanovitz’s testimony limiting the work related iniury to a cervical sprain and strain but accepted Dr Kahanovitz 5 opinion as to full recovery The WCJ has complete authority over questions of credibility,conflicting medical evidence and evidentiary weight Sherrod v WCAB (IhoroughgoodI Inc) 666 A 2d 383 (Pa melth 1995) The WCJ is free to accept or reject in whole or in part. the testimony of any witness Lombardo v WCAB (T0295 Company, Inc 1,698 A 2d 1378 (Pa melth 1997) Upon review, we affirm the WCJ 3 expansion of the description of injury Defendant argues that Dr Sing’s testimony was based on a false history and was therefore incompetent Claimant argues that the WCJ capricioust and irrationally Mar 6 2020 12 14PM SKR Legal No 3600 P 12/22 Concepcion Morales v Chester Upland School District Page 9 of 19 A18—1030 disregarded evidence attnbuting a GI bleed and chest pain to his work related injury In both instances, the parties are disputing credibiiity determinations The WCJ accepted Claimants testimony in part but specifically observed based on his demeanor as a witness that his testimony to additional injuries, hospitalizations and specifically emergency room visits was not credible She stated objective reasons for discounting Dr Sings testimony inpart and for accepting Dr Kahanovitzs testimony in part We determine no error Defendant additionally argues that reinstatement was barred by res judicata We disagree Section 314 of the Workers Compensation Act2 (Act) 77 P S §651 requires an injured employee to submit to a physical examination or expert interview by an approved health care provider or other expert, on request of the employer if the employee refuses a WCJ may order him or her to submit on petition filed by the employer The employee 3 refusal or neglect, without reasonable cause or excuse, to submit to the ordered examination or interview causes the employee to forfeit compensation during the period of refusal or neglect i_q The grant or denial of an employers request for an independent medical examination of a claimant is a matter of broad discretion for the WCJ who also has discretion to determine the reasonableness (or lack thereof) of a claimants justification for refusing to submit to the examination School District of Philadelphia v WCAB (Landon) 707A 2d 1176 (Pa meith 1998) A claimant seeking a reinstatement of indemnity benefits has the burden of pro