D. Hughey v. WCAB (Andorra Woods Healthcare Center) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debbie Hughey, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Andorra Woods Healthcare Center, :
ACE American Insurance Company, Esis :
Northeast WC Claims, Gallagher Bassett :
Services, Inc., and PA Uninsured :
Employees Guaranty Fund), : No. 1349 C.D. 2018
Respondents : Submitted: April 5, 2019
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: June 27, 2019
Debbie Hughey (Claimant) petitions this Court, pro se, for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) August 31, 2018 order
affirming Workers’ Compensation Judge (WCJ) Audrey Timm’s (WCJ Timm)
decision denying and dismissing Claimant’s Petition to Reinstate Compensation
Benefits (Reinstatement Petition), Petition to Review Medical Treatment (Review
Petition) and Penalty Petition (collectively, Petitions). Claimant presents five issues
for this Court’s review: (1) whether Claimant’s appeal was timely filed; (2) whether
WCJ Timm was biased; (3) whether WCJ Joseph Hagan (WCJ Hagan) denied
Claimant’s due process rights; (4) whether WCJ Timm violated Claimant’s right to
prove how WCJ Hagan and Lyric Health Care/Andorra Woods Healthcare Center
(Employer) illegally stopped her WC benefits; and (5) whether WCJ Timm abused
her authority and committed fraud. After review, we dismiss Claimant’s appeal.
On December 5, 2011, Claimant sustained work-related injuries in the
course and scope of her employment as a registered nurse for Employer. On January
4, 2012, Employer issued a medical-only Notice of Compensation Payable accepting
injuries described as multiple strains/sprains. On January 13, 2012, Claimant filed a
claim petition alleging injuries to her low back, left knee, neck and shoulders, and full
disability beginning December 5, 2011. The claim petition was withdrawn by
counsel who is no longer representing Claimant. On May 10, 2012, Employer filed a
termination petition. Employer filed a request for supersedeas that WCJ Stephen
Harlen (WCJ Harlen) denied on June 18, 2012.
The case was reassigned to WCJ Hagan after WCJ Harlen recused.1 By
January 28, 2015 order, WCJ Hagan granted Employer’s supersedeas request as to
indemnity benefits. Claimant, pro se, appealed from the grant of supersedeas, and
Claimant’s former counsel requested reconsideration at a hearing on March 2, 2015.
The Board dismissed Claimant’s appeal from the grant of supersedeas because it was
an interlocutory order.
Thereafter, Claimant filed a motion seeking WCJ Hagan’s recusal. On
May 18, 2015, WCJ Hagan held a hearing on the recusal motion. On May 21, 2015,
WCJ Hagan denied Claimant’s recusal motion and set a new briefing schedule.
Claimant appealed from the May 21, 2015 order to the Board, and Employer filed a
motion to quash. By August 31, 2015 order, the Board granted Employer’s motion to
quash and dismissed Claimant’s appeal. Claimant appealed to this Court, and
Employer filed another motion to quash. By February 10, 2016 order, this Court
granted Employer’s motion and dismissed the appeal. Claimant petitioned for
allowance of appeal to the Pennsylvania Supreme Court, which was denied.
1
WCJ Harlen recused himself in December 2014, after Claimant filed complaints against
him and numerous attorneys for alleged ethical violations.
2
By the time WCJ Hagan closed the record in 2015, more than 40
petitions had been filed. Claimant had filed 27 penalty petitions, 5 review petitions, 2
modification petitions, a medical review petition and a reinstatement petition.
Employer filed a termination petition and 2 review petitions.2 All the petitions were
consolidated and, in December 2015, WCJ Hagan issued three decisions granting
Employer’s termination and review petitions and denying Claimant’s review,
modification and medical review petitions and further denying her penalty petitions
and the reinstatement petition as duplicative and repetitious. Claimant appealed from
both decisions to the Board which, on January 13, 2017, affirmed WCJ Hagan’s
decisions.3 In its Opinion, the Board notified Claimant that she had 30 days from the
mailing date of January 13, 2017 (i.e., February 13, 2017)4 to appeal to this Court.
2
To date, Claimant has filed more than 50 petitions, more than half of which were penalty
petitions.
3
In the interim, on February 16, 2016 and March 8, 2016, Claimant filed claim,
modification, reinstatement and penalty petitions relating to her December 5, 2011 work injury.
The petitions were consolidated and, on April 7, 2016, WCJ Todd Seelig (WCJ Seelig) dismissed
them because they were barred by res judicata and collateral estoppel, the claim petition was barred
by the three-year limitations period, and the petitions were frivolous. Claimant appealed to the
Board, which affirmed WCJ Seelig’s decision.
Claimant filed a third claim petition on October 19, 2016, alleging injuries sustained on
December 5, 2011. On October 20, 2016, she filed another reinstatement petition. On November 9,
2016, Claimant filed a modification and reinstatement petition. On November 10, 2016, she filed
another modification petition and two additional penalty petitions. The petitions were assigned to
WCJ Tina Maria Rago (WCJ Rago), who conducted a hearing on November 16, 2016. In two
decisions issued on April 26, 2017, WCJ Rago granted Employer’s motion to dismiss the petitions,
finding that they were barred by res judicata and collateral estoppel, and the claim petition was
barred by the three-year limitations period. WCJ Rago noted that the petitions represented
Claimant’s third attempt to litigate issues that had been fully litigated before WCJ Hagan. Claimant
appealed from WCJ Rago’s decisions to the Board, which denied Claimant’s appeal.
4
Section 1908 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1908, “provides that
whenever the last day of a statutory time period falls on a Sunday, that day must be omitted from
the computation of the period.” Wolf v. Workers’ Comp. Appeal Bd. (Cty. of Berks/Office of Aging),
705 A.2d 483, 486 (Pa. Cmwlth. 1997). Here, because the 30th day fell on Sunday, February 12,
2017, Claimant had until Monday, February 13, 2017 to timely appeal.
3
On February 16, 2017, Claimant filed a letter with this Court stating that
she tried to file an appeal from the Board’s January 13, 2017 order through PACFile,5
but it was rejected. On March 20, 2017, Claimant filed a petition for review with this
Court. By April 21, 2017 order, this Court directed the parties to address in their
principal briefs whether the appeal was timely. On January 31, 2018, this Court
dismissed Claimant’s appeal as untimely.6
On August 28, 2017, Claimant filed the Reinstatement Petition, wherein
she alleged that her work-related condition worsened as of that date and also
requested supersedeas. A hearing was conducted before WCJ Timm on October 2,
2017. Also on October 2, 2017, Claimant filed the Review Petition. On October 25,
2017, Claimant filed a Penalty Petition. Employer opposed the Petitions. On
November 6, 2017, WCJ Timm denied and dismissed the Petitions. WCJ Timm
specifically found that Claimant’s Reinstatement and Review Petitions represented
further attempts to relitigate issues previously fully litigated, and which were barred
by res judicata and collateral estoppel. WCJ Timm also concluded that the Penalty
Petition was frivolous and failed to state a violation for which a penalty may be
imposed. Claimant appealed to the Board.
On August 31, 2018, the Board affirmed WCJ Timm’s denial and
dismissal of Claimant’s Reinstatement, Review and Penalty Petitions. The Board
notified Claimant that she had 30 days from the August 31, 2018 mailing date (i.e.,
October 1, 2018)7 to appeal to this Court. Notwithstanding, Claimant filed her pro se
5
PACFile is a service that provides parties the ability to electronically file documents on
both new and existing cases with the Pennsylvania courts.
6
See Hughey v. Workers’ Comp. Appeal Bd. (Andorra Woods Healthcare Ctr.) (Pa.
Cmwlth. No. 303 C.D. 2017, filed January 31, 2018).
7
Because the 30th day fell on Sunday, September 30, 2018, Claimant had until Monday,
October 1, 2018 to timely appeal. See 1 Pa.C.S. § 1908.
4
petition for review with this Court on October 4, 2018.8 By October 22, 2018 order,
this Court directed the parties to address the timeliness of Claimant’s appeal in their
principal briefs.
Initially, Pennsylvania Rule of Appellate Procedure (Rule) 1512(a)(1)
mandates that “[a] petition for review of a quasi-judicial order . . . shall be filed with
the prothonotary of the appellate court within 30 days after the entry of the order.”
Pa.R.A.P. 1512. Therefore, Rule 1512(a)(1) affords a claimant 30 days to appeal
from a Board decision to this Court. Moreover, “[t]he time limit for a statutory
appeal is mandatory; it may not be extended as a matter of grace or indulgence.”
Carney v. Unemployment Comp. Bd. of Review, 181 A.3d 1286, 1288 (Pa. Cmwlth.
2018). However, untimely appeals have been permitted nunc pro tunc “when a delay
in filing the appeal is caused by extraordinary circumstances involving fraud,
administrative breakdown, or non-negligent conduct, either by a third party or by the
appellant.” Mountain Home Beagle Media v. Unemployment Comp. Bd. of Review,
955 A.2d 484, 487 (Pa. Cmwlth. 2008).
Here, the Board expressly notified Claimant that her appeal was due
within 30 days of August 31, 2018. Notwithstanding that notice, and this Court’s
January 31, 2017 dismissal of Claimant’s prior appeal because it was untimely, she
waited 33 days (until October 4, 2018) to appeal from the Board’s decision to this
Court. Moreover, despite this Court’s October 22, 2018 order directing the parties to
address Claimant’s late-filed appeal in their “principal briefs,” October 22, 2018
8
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
5
Order, Claimant’s only timeliness argument consists of the following statement in her
Reply Brief:9
Claimant’s [p]etition for [r]eview was timely filed, the
[Board’s o]pinion stated that within 30 days after the
mailing of the [Board’s] [d]ecision. The [Board’s]
[d]ecision was dated August 31, 2018, and the date of the
[Claimant’s] [petition for review] was September 30,
2018;[10] which, is definitely within the quoted time frame.
Also, [] Claimant continued to be plague[d] by intentional
acts of continual sabotage, cyber attacks, and etc. . . [.] in
order[] to prevent the filing of documents!
Claimant Reply Br. at 5. Claimant merely repeats generalized claims that covert
tactics, collusion and conspiracy by her counsel,11 Employer, Employer’s counsel, the
WCJs, the Board, this Court and the Supreme Court have violated her rights and
blocked her efforts at every turn. See Claimant Br. at 8. Claimant does not specify in
9
Claimant’s Reply Brief is the only place where Claimant mentions the timeliness issue.
Claimant is well aware from this Court’s January 31, 2018 opinion:
The opportunity for, and the extent of, a reply brief is limited. The
Pennsylvania Rules of Appellate Procedure make clear that an
‘appellant may file a brief in reply to matters raised by appellee’s
brief not previously raised in appellant’s brief.’ Pa.R.A.P. 2113(a). . .
. When an appellant uses a reply brief to . . . remedy deficient
discussions in an initial brief, the appellate court may suppress the
non-complying portions. Pa.R.A.P. 2101. If the defects in a brief are
substantial, appellate courts have the discretion to quash or dismiss
the appeal. Pa.R.A.P. 2101; see Grosskopf v. [Workmen’s Comp.
Appeal Bd.] (Kuhns M[kt.]), 657 A.2d 124 (Pa. Cmwlth. 1995) . . . . ;
Commonwealth v. Taylor, . . . 451 A.2d 1360 ([Pa. Super.] 1982).
The onus of complying with the rules of appellate procedure falls
entirely on [appellant], who may suffer consequences from
committing prejudicial errors.
Hughey, slip op. at 3-4 (quoting Commonwealth v. Fahy, 737 A.2d 214, 218 n.8 (Pa. 1999)).
10
Although Claimant dated the petition for review for September 30, 2018, she did not file it
with this Court until October 4, 2018. See Petition for Review at 5-6.
11
Claimant has retained and discharged five attorneys over the course of this litigation. See
Claimant Br. at 8.
6
her briefs to this Court any non-negligent circumstances or fraud or its equivalent that
may allow this appeal to proceed nunc pro tunc.
Because Claimant failed to appeal from the Board’s August 31, 2018
order to this Court on or before October 1, 2018, Claimant’s appeal is dismissed as
untimely.12
12
Based upon this Court’s disposition of the timeliness issue, it need not address the merits
of Claimant’s appeal.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debbie Hughey, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Andorra Woods Healthcare Center, :
ACE American Insurance Company, Esis :
Northeast WC Claims, Gallagher Bassett :
Services, Inc., and PA Uninsured :
Employees Guaranty Fund), : No. 1349 C.D. 2018
Respondents :
PER CURIAM
ORDER
AND NOW, this 27th day of June, 2019, Debbie Hughey’s petition for
review of the Workers’ Compensation Appeal Board’s August 31, 2018 order is
dismissed as untimely.