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Winterberg v. Transportation Ins. Co.

December 14, 1995

PATRICIA WINTERBERG; JAMES WINTERBERG, INDIVIDUALLY AND AS HUSBAND AND WIFE PLAINTIFFS/APPELLANTS

v.

TRANSPORTATION INSURANCE COMPANY T/A CNA INSURANCE COMPANY, DEFENDANT/APPELLEE



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. No. 94-cv-05406

Before: Greenberg, Lewis and Rosenn, Circuit Judges

ROSENN, Circuit Judge.

Argued October 10, 1995

Filed December 14, l995

OPINION OF THE COURT

The Pennsylvania state legislature, in 1915, enacted its first Workmen's Compensation Act ("the Act") in response to strong public sentiment. It was a humanitarian measure providing no-fault compensation to substantially all workers for injuries sustained during the course of employment. The primary purpose of the legislation was to substitute a method of accident insurance in place of common rights and liabilities "which would afford a workman a measure of protection against injuries and relief in case of accident, which was denied under existing law." Blake v. Wilson, 112 A. 126, 128 (Pa. 1920). As quid pro quo, employees under the system waived their common law rights of action. The Act also abolished common law defenses, routinely and effectively raised by employers, of voluntary assumption of risk, contributory negligence and fellow employee negligence. American Association of Meat Processors v. Casualty Reciprocal Exch., 588 A.2d 491 (Pa. 1991).

Thus, the Act provided compensation on a no-fault basis for work-related injury "as a fair exchange for relinquishing every other right of action against the employer." Rudy v. McCloskey and Co., 35 A.2d 250, 253 (Pa. 1944). From time to time, however, injured employees and their counsel have attempted ingeniously to accept the rewards of this no-fault compensation system and still avail themselves of a possible common law damages action against the employer or its insurer.

This case requires us to predict whether the Supreme Court of Pennsylvania would permit an injured employee to disregard the state statutory workmen's compensation scheme and bring a common law action in court if an employer's insurance company behaves egregiously in handling the underlying workmen's compensation claim. Because we hold that it would not, but would honor the exclusivity provisions of the Act, we affirm the order of the district court dismissing plaintiffs' suit.

I.

Patricia Winterberg *fn1 (Winterberg) worked for a T.J. Maxx department store in Pennsylvania. In 1991, during the course of her employment, a clothing rack weighing several hundred pounds fell on her foot, causing a "severe contusion of bones." Winterberg received medical treatment, paid for by the T.J. Maxx compensation carrier, Transportation Insurance Company (hereafter "TIC" or "carrier"), trading as CNA Insurance.

Winterberg's injury and pain became progressively worse, and the doctors diagnosed her as having Reflex Sympathy Dystrophy ("RSD"). She claims that she suffers extraordinary pain and the loss of use of her left foot; that it has intensified, causing her to fall down frequently. These falls, she asserts, caused her to sustain other injuries, such as damage to the tendons of her ankle, and a fracture of her elbow, which also needed medical attention. A doctor prescribed a wheelchair because the elbow fracture made it impossible for her to use crutches. In addition, Winterberg states she underwent psychological counseling for pain management and depression.

In 1992, TIC stopped paying Winterberg's medical bills. It took the position that the only compensable injury she had suffered was her original foot injury, and refused to authorize the other prescribed medications, therapies, and rehabilitative services. TIC also attempted to terminate her workmen's compensation benefits on the grounds that T.J. Maxx had offered her a position she could perform even with her symptoms. Winterberg disputes that the job offered conforms to the "bona fide" requirements of the Compensation Act.

According to plaintiff *fn2, defendant continued to deny her claims and refuse to pay her bills despite admonitions by the Workmen's Compensation Referee, approval of the expenses by two separate independent reviews, and numerous letters from plaintiff's counsel detailing the harmful impact of defendant's conduct on her. Apparently, plaintiff was terminated from some of her prescribed therapy because of her financial inability to pay for it, and this lack of therapy also aggravated her injury.

At the carrier's request, Winterberg underwent a medical examination by a neurologist of TIC's choosing. Plaintiff claims that during the examination, the neurologist, Dr. Bennett, emotionally and physically abused her. He asked her, "Did you settle your lawsuit?", roughly grabbed her foot immediately after being told that she suffered pain even from air blowing across it, and demanded that she walk. Plaintiff asserts that she became unsteady, and fell to the floor, injuring her head, shoulder and neck, but the doctor refused to assist her, saying "You are not an invalid and you have to get up yourself." Shortly after this ...


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