D. Sutter v. WCAB (Kelly Services, Inc.) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Danette Sutter, :
Petitioner :
: No. 1364 C.D. 2019
v. :
: Submitted: June 12, 2020
Workers’ Compensation Appeal :
Board (Kelly Services, Inc.), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 12, 2020
Danette Sutter (Claimant) petitions for review from the August 15, 2019
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of the Workers’ Compensation Judge (WCJ) to deny Claimant’s various
petitions challenging the earlier resolution of her claim petition. Kelly Services, Inc.
(Employer) asks this Court not only to affirm the Board’s order, but also to award it
counsel fees due to Claimant’s advancement of what Employer believes is a frivolous
appeal. We affirm the Board’s order, but decline to award counsel fees to Employer.
Claimant filed a claim petition on May 31, 2016, alleging that she suffered
a lower back injury while ascending a flight of stairs at work on March 14, 2016.
(WCJ’s Finding of Fact (FOF) No. 1.) Although Employer initially denied the material
allegations, the parties ultimately entered into a Compromise and Release (C&R)
agreement, through which Employer agreed to pay Claimant a sum of $7,500.00 in
exchange for her release of all claims arising from the injury, as well as a second
alleged injury that occurred on August 26, 2016. The C&R agreement “resolved the
Claimant’s rights to any and all past, present and future workers’ compensation
indemnity/wage loss benefits, and any and all past, present and future medical benefits
related to any and all injuries that she may have sustained” while working for
Employer. (WCJ’s FOF No. 2.) Following a hearing on October 25, 2016, at which
Claimant was represented by counsel, the WCJ was satisfied that Claimant understood
the legal consequences of the C&R agreement and had entered into it voluntarily. The
WCJ approved the C&R agreement on October 25, 2018. (WCJ’s FOF No. 3.)
Claimant later became dissatisfied with the terms of the C&R agreement.
On January 4, 2018, Claimant, proceeding pro se, filed a petition seeking to have the
C&R agreement set aside. The WCJ held a hearing on Claimant’s petition on February
13, 2018, at which Claimant testified that, at the time of the C&R agreement, she did
not believe that any further treatment for her injury would be necessary, but she
subsequently learned that she required surgery. (WCJ’s FOF Nos. 5-6.) Claimant
sought to introduce her medical records into evidence, but the WCJ did not admit them,
citing hearsay and relevance concerns. (WCJ’s FOF No. 7.) Employer, for its part,
emphasized that the WCJ had approved the C&R agreement, that Claimant testified
that she understood its terms and legal effect, and that Claimant acknowledged in her
testimony that she would be responsible for any future medical expenses relating to the
injuries. (WCJ’s FOF Nos. 8-9.)
The WCJ observed that a claimant seeking to set aside a C&R agreement
must demonstrate that the agreement was based upon fraud, misrepresentation,
concealment, or a mutual mistake of fact. (WCJ’s FOF No. 12.) Claimant failed to
2
establish any such grounds for relief. The C&R agreement, the WCJ related, was clear
and unambiguous, and Claimant expressly and credibly testified that she understood
that it foreclosed any future claims, and that any future medical expenses would be her
responsibility, even if her condition worsened or unforeseen treatment would be
required. (Id.) The WCJ found that Claimant produced no evidence that her
understanding of these consequences was a result of any mistake of fact or fraud on the
part of Employer. Accordingly, the WCJ denied Claimant’s request to set aside the
C&R agreement. Although Employer asked the WCJ to conclude that the litigation
was frivolous, the WCJ declined, noting that Claimant had proceeded pro se, and that
imposing sanctions upon her would not comport with the “humanitarian objectives” of
the Workers’ Compensation Act (Act).1 (WCJ’s FOF No. 14.)
On Claimant’s pro se appeal of the WCJ’s decision, the Board affirmed,
similarly emphasizing the plain language of the C&R agreement and Claimant’s
testimony that she understood and agreed to its terms. Claimant challenged the WCJ’s
refusal to admit her medical records, but the Board agreed with the WCJ that the
dispositive inquiry was a legal one, i.e., the effect of the C&R agreement, rather than a
question of medical necessity. Because the C&R agreement was clear and
unambiguous, and because Claimant produced no evidence that would allow it to be
set aside, the Board affirmed the decision of the WCJ. Claimant sought review in this
Court.2
1
Act of June 2, 1915, P.L. 736, No. 338, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
“Our review is limited to determining whether the WCJ’s findings of fact were supported by
substantial evidence, whether an error of law was committed or whether constitutional rights were
violated.” Murphy v. Workers’ Compensation Appeal Board (Ace Check Cashing Inc.), 110 A.3d
227, 233 n.6 (Pa. Cmwlth. 2015) (quoting Gumm v. Workers’ Compensation Appeal Board (Steel),
942 A.2d 222, 227 n.5 (Pa. Cmwlth. 2008)) (internal quotation marks omitted).
3
Claimant generally asserts that, at the time that she entered into the C&R
agreement, she lacked sufficient information and was not aware that future treatment
would be required. Beyond this conclusory assertion, however, Claimant presents no
substantive argument to this Court. Indeed, Claimant’s brief contains no “Argument”
section as required by Pa.R.A.P. 2119, and instead relates her grievance only in the
“Summary of Argument” section. Although a pro se litigant such as Claimant may be
forgiven her failure to observe such formalities, we nonetheless must insist upon some
degree of development of a legal argument. “While pleadings filed by pro se litigants
are to be construed liberally, a pro se litigant is not to be given any particular advantage
because of his lack of knowledge of the law.” Mueller v. Pennsylvania State Police
Headquarters, 532 A.2d 900, 902 (Pa. Cmwlth. 1987). “In short, an uncounseled
litigant cannot expect the court to act as his attorney.” Young v. Estate of Young, 138
A.3d 78, 87 (Pa. Cmwlth. 2016) (citing Smathers v. Smathers, 670 A.2d 1159 (Pa.
Super. 1996)). Claimant has not supported her claim with citation to the record or to
any legal authority. She neither confronts the governing standard for setting aside a
C&R agreement nor offers any argument that the facts satisfy that standard.
Even if Claimant had properly developed her claim, we would still
conclude that she is not entitled to relief. “Courts may rescind a compromise and
release agreement based on a clear showing of fraud, deception, duress, or mutual
mistake.” Hoang v. Workers’ Compensation Appeal Board (Howmet Aluminum
Casting, Inc.), 51 A.3d 905, 908 (Pa. Cmwlth. 2012) (citing North Penn Sanitation,
Inc. v. Workers’ Compensation Appeal Board (Dillard), 850 A.2d 795, 799 (Pa.
Cmwlth. 2004)). The burden to make this showing rests with the party seeking to set
aside the agreement. Id. at 908-09. Here, Claimant relied upon her later discovery that
additional treatment for her injury would be required, which she did not foresee at the
4
time that she entered into the C&R agreement. But this is a far cry from demonstrating
fraud, deception, duress, or mutual mistake of fact. Indeed, although Claimant may not
have anticipated the specific surgery that she would ultimately require in the future, the
possibility that additional treatment could be necessary was expressly contemplated
when the WCJ approved the C&R agreement. At the hearing, Claimant’s counsel
asked her:
Q: By settling this case today, if it’s approved, you’ll
never get access to your lost wage benefits or your medical
benefits, now or in the future; do you understand that?
A: Yes.
Q: And that would be true even if your condition should
change; do you understand that?
A: Yes.
Q: In other words, if your condition worsens, you can’t
come back and say to [Employer], I’d like to reopen my case?
A: Yes.
Notes of Testimony (N.T.), 10/25/2016, at 9. (Supplemental Reproduced Record
(S.R.R.) at 9b.) In short, although the C&R agreement may have turned out to be less
than fully satisfactory in Claimant’s view, this does not amount to a showing of fraud,
deception, duress, or mutual mistake of fact. Accordingly, we find no error in the
WCJ’s decision to deny Claimant’s request to set aside the C&R agreement, nor in the
Board’s affirmance of that decision.
This does not, however, end our inquiry. In addition to refuting
Claimant’s position on the merits, Employer asks this Court to award it counsel fees,
asserting that it is entitled to such fees because Claimant’s appeal is frivolous.
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Employer opines that Claimant “is using public funds in an attempt to re-litigate her
original [c]laim [p]etition that she settled” via the C&R agreement, and that Employer
has expended time, money, and resources to defend against Claimant’s appeals to the
Board and to this Court. (Employer’s Br. at 15-16.) In support, Employer cites Smith
v. Workers’ Compensation Appeal Board (Consolidated Freightways, Inc.), 111 A.3d
235 (Pa. Cmwlth. 2015) (per curiam).
Before addressing Smith, however, it is worthwhile to review our Supreme
Court’s decision in Phillips v. Workmen’s Compensation Appeal Board (Century
Steel), 721 A.2d 1091 (Pa. 1999), which Smith distinguished. Phillips addressed the
question of whether Section 440 of the Act, 77 P.S. §996,3 allows the award of counsel
fees to an employer upon a finding that a claimant’s appeal was frivolous. Because the
Act provides only for an award of counsel fees to a claimant where an employer
contests its liability without “a reasonable basis for the contest,” 77 P.S. §996(a), the
Phillips Court found no basis upon which to award counsel fees to an employer.
Rather, the “clear intent of Section 440 of the Act is to protect claimants from the costs
of litigation, but not to provide comparable protection for employers.” Phillips, 721
A.2d at 1094.
The employer in Phillips also invoked Pennsylvania Rule of Appellate
Procedure 2744, which provides that an appellate court may award attorneys’ fees “if
it determines that an appeal is frivolous or taken solely for delay or that the conduct of
the participant against whom costs are to be imposed is dilatory, obdurate or
vexatious.” Pa.R.A.P. 2744. Although the Phillips Court declined to assess counsel
fees under Rule 2744, it assessed the possibility through a comparison between two of
this Court’s earlier cases, Patel v. Workmen’s Compensation Appeal Board (Saquoit
3
Act of June 2, 1915, P.L. 736, as amended, added by section 3 of the Act of February 8,
1972, P.L. 25.
6
FPbers Company), 520 A.2d 525 (Pa. Cmwlth. 1987), and Callahan v. Workmen’s
Compensation Appeal Board (Bethlehem Steel Corp.), 571 A.2d 1108 (Pa. Cmwlth.
1990). In Patel, this Court concluded that a claimant’s appeal—his third appeal on a
claim already twice rejected—was frivolous, and awarded costs to the employer under
Pa.R.A.P. 2741.4 In dicta, the Patel Court also cited Rule 2744 and suggested that an
award of counsel fees to the employer also would be appropriate due to the claimant’s
abuse of the legal process, but the Court declined to award such fees sua sponte. Patel,
520 A.2d at 526. In Callahan, however, this Court cabined Patel, noted that its
discussion was premised upon a “patent abuse of the appellate process and not simply
on the basis of one frivolous petition for review,” and stated that the “holding in Patel
is an extremely narrow one and is limited to the particular facts of that case.” Callahan,
571 A.2d at 1111 n.10. Adverting to the Act’s remedial nature, its humanitarian
objectives, and the rule of liberal construction, the Callahan Court declined to award
counsel fees to the employer. Id. at 1111-12.
After comparing Patel and Callahan, our Supreme Court in Phillips
declared that it found Callahan persuasive. Phillips, 721 A.2d at 1094. The Phillips
Court further cited a decision of this Court for the proposition that “[t]here is no basis
in Patel which could provide support for the assessment of counsel fees [against a
claimant] by a compensation referee, nor under either Pa.R.A.P. 2744(1) or the Judicial
Code, 42 Pa.C.S. §2503.7, also relied upon by the [e]mployer.” Phillips, 721 A.2d at
1094 (quoting Warner Lambert Company, Inc. v. Workmen’s Compensation Appeal
Board (Brown), 575 A.2d 956, 960 (Pa. Cmwlth. 1990)) (emphasis added).
Accordingly, finding no authorization in the Act, and signaling its preference for
4
See Pa.R.A.P. 2741(2) (“If an order is affirmed, costs shall be taxed against the appellant
unless otherwise ordered.”).
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Callahan over Patel, the Phillips Court concluded that “the Commonwealth Court was
not authorized to award attorneys’ fees” to the employer. Id.
In the instant case, however, Employer points to this Court’s per curiam
decision in Smith. The claimant in Smith had filed over 15 claim petitions regarding
the same injury, and again attempted to litigate the same claim that had been rejected
repeatedly for over a decade, and already had been deemed barred by res judicata and
collateral estoppel. Smith, 111 A.3d at 236. The case had been before this Court five
times. Id. Quoting from our earlier rejection of the claimant’s same frivolous appeal,
this Court noted that “[p]ublic funds have been extensively expended as [the c]laimant
repeatedly attempts to re-litigate a case that was decided many years ago. Moreover,
[the c]laimant’s actions are, at the very least, unfair and unduly burdensome to [the
e]mployer, who has been forced to defend against each of these unreasonable
petitions.” Id. Turning our attention to the Supreme Court’s decision in Phillips, this
Court acknowledged its holding that “awarding attorney’s fees to employers would
thwart the declared intent of the Act, which is to give claimants the opportunity to
receive attorney’s fees in the event of an unreasonable contest by the opposing party.”
Id. at 238 (discussing Phillips). However, we noted that Phillips distinguished but did
not overrule this Court’s decision in Patel, and, thus, although counsel fees may not be
awarded to an employer under the Act itself, we concluded that “our Supreme Court
left open the ability of the appellate courts to impose sanctions under Pa.R.A.P. 2744
in cases such as the one at bar. Otherwise, there is no way for our courts to curb the
sort of flagrant abuse of the system engaged in here.” Id. Accordingly, this Court
imposed costs and counsel fees under Rule 2744, “jointly and severally, against Smith
and his appellate counsel for obdurate and vexatious prosecution of a frivolous appeal.”
Id.
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 Contrary to Employer’s characterization, Claimant’s appeal in the instant
case is nothing like the Smith claimant’s obdurate and vexatious conduct. The instant
appeal reflects Claimant’s first and only attempt to have the C&R agreement set aside.
This is plainly distinct from the Smith claimant’s years-long campaign to repeatedly re-
litigate frivolous appeals. As this Court stated in Callahan, such sanctions may be
available in rare cases such as Patel, where there has been a “patent abuse of the
appellate process,” but not “simply on the basis of one frivolous petition for review.”
Callahan, 571 A.2d at 1111 n.10. Moreover, unlike the Smith claimant, Claimant here
has proceeded pro se, and she may not view the legal issue through the same lens as
Employer’s seasoned counsel. Indeed, the WCJ in this case cited Claimant’s pro se
status as a basis upon which to find that her claim was not frivolous. The WCJ stated:
“Being that the petitions were file[d] pro se, and in deference to the humanitarian
objectives of the Act, I do not find that the petitions were frivolous.” (WCJ’s FOF No.
14.) We find no basis to disturb the WCJ’s finding on this matter, nor do we find any
grounds upon which to conclude that Claimant’s litigation strategy was “obdurate and
vexatious” within the meaning of Smith and Pa.R.A.P. 2744. Accordingly, although
Employer is correct that Claimant failed to establish any reason to set aside the C&R
agreement, we conclude that there are no grounds upon which to assess counsel fees
against Claimant.
We affirm the order of the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Danette Sutter, :
Petitioner :
: No. 1364 C.D. 2019
v. :
:
Workers’ Compensation Appeal :
Board (Kelly Services, Inc.), :
Respondent :
ORDER
AND NOW, this 12th day of August, 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge