Pennsylvania Workers' Compensation Journal

Medical Evaluation of Work Injuries

2010-02-10T07:27:00.002-05:00

Reduceyourworkerscomp.com and workerscompensaation.com share 8 Ways One Doctor Can Reduce Workers' Comp Costs Forever, a guide to evaluation and diagnosis of claimed work injuries. The checklist illustrates where a disconnect can occur between the injured employee and the doctor which can result in a faulty opinion.

Presentation at Central Pennsylvania Regional Business and Industry Expo

2009-10-30T16:50:00.003-04:00

I will be in a panel presenting Workers' Compensation Update: What Employers Need to Know to Successfully Manage and Close a Workers' Compensation Claim. The workshop will be presented at the Central Pennsylvania Regional Business and Industry Expo at the Bryce Jordan Center on November 17 at 5:30 p.m. Central Pa. Expo Workshop Times

Commonwealth Court Holds Claimant Cannot Receive 500 Weeks of Partial Disability For Two Injuries

2009-10-25T15:46:00.002-04:00

In P. Reutzel v. WCAB (Allegheny General Hospital) the Claimant argued she could reinstate partial disability benefits from a prior injury when 500 weeks ran on her more recent injury. The Court held Section 306(b)(1) of the Act specifically limits the period of partial disability benefits to 500 weeks for any injury or its recurrence, regardless of any change in disability status. The WCJ and Board's denial of benefits was affirmed.

Supreme Court Grant of Appeal in Diehl v. WCAB (IA Construction & Liberty Mutual)

2009-10-24T15:50:00.004-04:00

The Supreme Court's grant of appeal in Diehl v. WCAB (IA Construction & Liberty Mutual) frames the issue as:

Whether the Commonwealth Court erred in its interpretation of 77 P.S. §551.2 by holding that respondents did not need to present evidence of job availability or earning power in order to change petitioner’s disability status from total to partial, and whether the court’s holding conflicts with Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005).

The Supreme Court said in Gardner the employer must follow the "traditional administrative process" when it misses the window to request an IRE of sixty (60) days following the expiration of 104 weeks of total disability paid. The Supreme Court directed that the Employer could not take unilateral relief, but had to give the Claimant notice and the opportunity to be heard. The Employer's burden is to present competent and credible evidence the Claimant received an IRE in accordance with the Guides. Employers have failed to prove the Claimant was at maximum medical improvement, a requirement of the Guides.

The Commonwealth Court first concluded the traditional administrative process could not simply be notice and the opportunity to be heard on the propriety of the IRE, but must also include the burden to show earning power. The Court then concluded the IRE provisions would be meaningless if an employer had to also show earning power to modify a Claimant's benefits to partial disability status.

The authority to conclude the employer must show earning power comes from the Guides. The Guides make it clear in their introduction that the whole person impairment is based on activities of daily living excluding work (emphasis in original). The Guides go on to give an example of an individual who has a 20% total body impairment and a 100% work disability.

It is clear the employer gets modification from total to partial based solely on the IRE when it is requested in the sixty (60) day window. The Supreme Court will tell us what the employer needs to do when it lets the window pass without requesting an IRE exam.

Supreme Court Reverses Commonwealth Court Ruling That Labor Market Survey May Be Conducted in Claimant's Place of Residence Out Of State

2009-10-22T21:56:00.001-04:00

The Commonwealth Court held in Riddle v. WCAB (Allegheny City Electric, Inc.) that it was appropriate to conduct a labor market survey in the area where the claimant resides out of state. The Court relied on pre-Act 57 case law for guidance. These cases held work should be identified in the place of the claimant's residence. Riddle Post

The Commonwealth Court holding recognized the employer increases its chance of prevailing on a modification of benefits by treating the claimant fairly. The claimant and employer also may have benefited if, for example, the Claimant's new residence had more job opportunities for individuals with disabilities.

The Commonwealth Court's decision did not require an out of state labor market survey.

The Supreme Court reversed, holding the courts are bound by the mandatory nature of the statute. Riddle v. WCAB (Allegheny City Electric, Inc.) Section 306(b)(2) of the Act states when the Claimant moves out of state the labor market survey shall be conducted in the usual employment are where the injury occurred. The Supreme Court said it was the policy choice of the General Assembly to utilize the usual employment area where the injury occurred, even though the resulting job opportunities are outside the Claimant's reasonable commuting area.

With the Supreme Court holding, employers will have to rely on labor market surveys in the usual employment area where the injury occurred. Out of state claimants can take solace in the fact the employer cannot create an in house light duty position and modify benefits if the claimant does not return. Motor Coils MFG/WABTEC v. WCAB(Bish) Affirmed by the Supreme Court

Amendments to Board and Judges' Rules Published in Pennsylvania Bulletin

2009-10-17T16:39:00.002-04:00

The amendments to the board and judges' rules were published today in the Pennsylvania Bulletin.

A WCJ can no longer conduct a mandatory mediation in the judge's own case. If the parties and judge all agree, the presiding judge can conduct a voluntary mediation.

Commonwealth Court Limits Time for IRE Appeal Based on Competency of the IRE Report

2009-10-16T16:55:00.002-04:00

In D. Johnson v. WCAB (Sealy Components Group) the Employer issued a Notice of Change of Workers’ Compensation Disability Status based on an IRE finding of a 15% total body impairment. A year later the Claimant filed a petition to review alleging her pulmonary condition should not have been evaluated by the IRE physician who is a board certified physiatrist. The Employer asserted the Claimant’s petition to review was prohibited under Section 306(a.2)(4) of the Act because the Claimant failed to first show a determination she had a 50% impairment rating from her physician.

The WCJ and the Board held the Claimant could file for review under 34 Pa. Code Section 123.105(f). This regulation provides a Claimant can file at any time within the 500 week period of partial disability that is commenced by the filing of the Notice of Change of Workers’ Compensation Disability Status. The WCJ and the Board held, however, that Section 306(a.2)(1) only requires that an IRE physician be board certified. It does not require the physician to be board certified in the specialty that might be indicated for the nature of the injury. The WCJ and Board denied the Claimant’s petition on this basis.

The Claimant’s case might have been argued differently. The Act provides an impairment rating is established pursuant to the AMA Guides to the Evaluation of Permanent Impairment. The Guides provide that when a condition is outside the IRE physician’s specialty, the IRE physician should seek a consultation from a physician of the appropriate specialty to complete the impairment rating. The Claimant should argue a physiatrist was able to perform the IRE, but the IRE was not performed pursuant to the Guides because the physiatrist did not seek a consultation from a pulmonologist.

The Claimant will not have the opportunity to clarify her argument. The Commonwealth Court accepted the Employer’s initial argument that the Claimant must first show a determination she has a 50% impairment rating from a physician when she files for review under 306(a.2)(4) of the Act. The Court said the regulation at 34 Pa. Code Section 123.105(f) is inconsistent with the statute and is invalid.

The Court did recognize the Claimant has a due process right to review the Employer’s unilateral action without the burden of producing her own medical evidence. For this, the Court looked to Section 306(a.2)(2)(b) of the Act and 34 Pa. Code Section 123.105(d) which provide the Claimant with sixty (60) days notice of the change of workers’ compensation disability status. The Court suggested the Claimant has a right to file a review petition in this sixty (60) day window, presumably without first showing a 50% impairment finding.

Accordingly, any review of the competency of the IRE determination including the doctor’s credentials or specialty or the finding of maximum medical improvement must be filed within sixty (60) days. Any challenge to the IRE after that requires a showing the 50% total body impairment threshold has been reached.

FCE Exam May Not Become Pre-Employment Exam Prohibited by ADA

2009-10-08T12:15:00.000-04:00

Business Insurance reviewed a 9th Circuit Court of Appeals case which held a return to work FCE might have gone beyond testing for recovery from the specific work injury. The FCE reported data that might have revealed whether the Employee suffered a disability unrelated to the work injury. Under these circumstances the court held the exam could be an impermissible pre-employment physical under the ADA. The case was remanded for the lower court to determine whether the FCE was job-related and consistent with business necessity.

A commentator suggested the only thing the exam should explore is whether the injury or illness that caused the person to be out of work has healed to the point they are now capable of performing their function.

Summary of WCRI Report at Risk and Insurance

2009-10-02T20:24:00.001-04:00

Pennsylvania: Study finds medical costs per claim similar to other states, but rising

An Entertaining Mediation Primer

2009-09-24T17:56:00.003-04:00

Richard H. Ralston has compiled a list of thirty things to say in mediation. It is kind of a list of things not to say, or most accurately, a list of things you will hear yourself say and wish you hadn't.

I have heard all but a few of these. I have not heard Statement #5 "They are not negotiating in good faith." Not saying this about a colleague and knowing it won't be said about you is one of the reasons we practice workers' compensation law in Pennsylvania. Statement #4 "They are not being realistic." is the way we say it, and we mean they are just missing something.

Take note of Statement #12 "That's the most we're going to pay.", Statement #25 "Let's just cut to the chase, quit playing games and make our best offer." and Statement #26 "This is my final offer [or demand]." None of these connote a legitimate settlement number.

When you make these and any of the statements in the top twenty, you have deviated from a reasoned analysis of the issues of the case.

Statement 22, 27, 28, and 29 deal with arguing the case. When the parties in mediation discuss risk it must be with an eye toward seeking agreement on the quantity of risk. Seeking to impose risk on a party is disenfranchising and counterproductive to a negotiated agreement.

The author suggests parties should refer to the comments by number to expedite these detours from productive mediation.

Commonwealth Announces G-20 Closings

2009-09-21T21:11:00.000-04:00

A press release issued by the Governor's office gives all Pittsburgh state office closings for September 23-25. The release states:

The Workers' Compensation Office of Adjudication (WCOA) office will be closed. If an emergency arises relating to an Allegheny or Beaver County worker's compensation case, call the Johnstown office at 814-533-2494.

Facebook, MySpace, etc. Evidence

2009-09-06T21:06:00.003-04:00

In a Businessinsurance.com article, workers' compensation claims investigators recall their favorite stories of Claimants' Facebook and MySpace activities. The Claimants in these examples were caught in demonstrably inconsistent behavior.

More often than not Facebook and MySpace evidence amounts to character evidence which is not as helpful to the WCJ.

Claimants' counsel might recommend this site to their clients: http://www.wikihow.com/Quit-Facebook.

Commonwealth Court Reaffirms Employer is Responsible to Maintain Orthopedic Appliances

2009-09-03T07:25:00.000-04:00

In Equitable Resources v. WCAB (Thomas) the Employer provided modifications to a bathroom. A water leak damaged the bathroom and finished basement. The Commonwealth Court applied Zuback v. Workers’ Compensation Appeal Board (Paradise Valley Enterprise Lumber Company) 892 A.2d 41 (Pa. Cmwlth. 2006) to state the employer was responsible for repairs. The rule of Zuback is that the Employer is responsible to repair or replace orthopedic appliances that are subject to normal wear. Zuback Post

Supreme Court Grants Petition for Allowance of Appeal on "Footprint" Argument in Pension Benefit Offset

2009-05-28T21:54:00.003-04:00

In Commonwealth of Pennsylvania DPW v. WCAB (Harvey) the Supreme Court granted allocatur to review the holding of the Commonwealth Court in Pennsylvania State University/PMA Insurance Group v. WCAB (Hensal), 911 A.2d 225 (Pa. Cmwlth. 2006) and Department of Public Welfare/Western Center v. WCAB (Cato), 911 A.2d 241 (Pa. Cmwlth. 2006) that an employer meets its burden of proof by only presenting evidence of an actuarially assumed rate of annual return on an employer’s contribution rather than evidence confirming the actual rate of return on the pension.

The second issue on which allocatur was granted is whether the Commonwealth Court's holdings disregard the plain language of Section 204(a) of the Workers’ Compensation Act, 77 P.S. § 71(a), which grants an employer a credit against an employee’s pension only“to the extent [the pension is] funded by the employer directly liable for the payment of workers’ compensation.

These issues arise in the "footprint" argument that posits a pension offset should be based on the actual contributions of the Employer while the Claimant worked there. This argument does not account for the contributions the Employer will make to keep the defined benefit plan solvent during the rest of the Claimant's "footprint" e.g. while the Claimant collects pension benefits.

Disposition of this appeal will be another interesting exercise in the sisyphean task of interpreting a statute that does not articulate a method for calculating defined benefit plan pension offsets.

Commonwealth Court Rules Claimant May Not Seek Review of the Determination of a URO That the Provider Did Not Properly Submit Records

2009-05-26T20:31:00.008-04:00

In L. Sexton v. WCAB (Forest Park Health Center) the Employer filed a request for utilization review. The Provider forwarded treatment records in a timely manner, but did not complete a verification. The URO sent the records back to the Provider. They were not returned. The URO found the treatment unreasonable and unnecessary under 34 Pa. Code Section 127.464(a).

The Claimant was entitled to file a Petition to Review Utilization Review Determination to seek review of the URO's determination. Under HCR Manorcare v. Workers’ Comp. Appeal Bd. (Bollman), 951 A.2d 1242 (Pa. Cmwlth. 2008) and Gazzola v. Workers’ Comp. Appeal Bd. (Ikon Office Solutions), 911 A.2d 662 (Pa. Cmwlth. 2006) the WCJ can vacate the determination and order that the records be sent to a reviewer for a URO determination on the merits.

Although the WCJ did this after hearing evidence the provider did execute the authorization, the Board reversed the WCJ's determination and the Court affirmed. The Court held the URO complied with 34 Pa. Code section 127.464(b) which provides: Before rendering the determination against the provider, a URO shall do the following: (1) Determine whether the records were mailed in a timely manner. (2) Indicate on the determination that the records were requested but not provided. (3) Adequately document the attempt to obtain records from the provider under review, including a copy of the certified mail return receipt from the request for records.

The Court stated the URO had no choice but to deem the treatments unreasonable and unnecessary because the records were not properly submitted due to the lack of the required verification form. The Court also stated where no utilization report is issued, the reasonableness of the bills submitted are final and cannot be appealed to the WCJ, citing County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).

The majority's decision therefore extinguishes the right of the Claimant to seek review of a URO's 34 Pa. Code section 127.464(b) detemination by filing a Petition to Review Utilization Review Determination.

The majority did not discuss the more recent precedents of HCR Manorcare and Gazzola. Judge Butler authored a dissent stating these precedents were properly applied by the WCJ.

City Can Subrogate Heart & Lung Act Claim Against Third Party Recovery

2009-05-24T20:11:00.006-04:00

In City of Wilkes-Barre vs. Robert P. Sheils, Jr., Trustee in Bankrupcy, George W. Cole, Debtor the Third Circuit Court of Appeals held a municipality that pays Heart and Lung Act benefits has a subrogation interest against a third party recovery. The District Court held the subrogation claim was barred by Section 1720 of the Motor Vehicle Financial Responsibility Law.

The Third Circuit identified Brown v. Rosenberger and Coca-Cola Bottling Company as the controlling precedent of the Commonwealth Court and held the 1993 repeal of Section 1720 and 1722 as they relate to workers' compensation benefits also was a repeal as to Heart & Lung Act benefits. The Court looked at the identity of these payments and the inequity of not allowing recovery against a third-party tort-feasor for all losses sustained.

Blair County Chamber Risk/Safety Committee and Human Resource Mgt. Assn. of Blair County -- “Ten Ways to Lose a Workers' Compensation Case"

2009-01-29T12:37:00.006-05:00

The following citations are provided as a follow up to my recent presentation to the Blair County Chamber of Commerce Risk/Safety Committee and Human Resource Management Association of Blair County entitled “Ten Ways to Lose a Workers’ Compensation Case”

“Outliers” by Malcolm Gladwell

Maxim Crane Works v W.C.A.B. (Solano) – The Employer may not take a retroactive credit under Section 204(a) of the Act until the Employer has sent the LIBC-756 Employee’s report of Benefits.

Motor Coils Manufacturing/WABTEC v. W.C.A.B. (Bish) – The Employer may not modify benefits based on a job with the pre-injury employer when the Claimant has moved out of state in good faith.

Riddle v. W.C.A.B. (Allegheny City Electric, Inc.) - The Employer may, however, modify benefits based on a labor market survey in the place of the Claimant’s new residence out of state. Even though the Act does not provide for this remedy, the Employer acted in good faith.

Pries v. W.C.A.B. (Verizon Pennsylvania) – Commonwealth Court case holding that to reinstate benefits after retirement, the Claimant has the burden to show the Claimant is disabled from all work.

But see Gray v W.C.A.B. (Philadelphia Housing Authority) decided by the Supreme Court on January 12, 2009 – The Claimant, who was released to return to work by her physician, took a regular retirement. The WCJ suspended benefits and the Board and Commonwealth Court affirmed. (The Commonwealth Court opinion appears to be unpublished) The Supreme Court directed reinstatement of benefits based on the Claimant’s statement that she felt she had too much pain to continue.

From the New York Times: “Study Finds Settling Is Better Than Going to Trial”

Proposed Amendments to Workers' Compensation Judges' Rules Published in Pennsylvania Bulletin

2008-09-09T07:13:00.001-04:00

The proposed amendments to the Special Rules of Practice and Procedure Before Workers' Compensation Judges were published Saturday in the Pennsylvania Bulletin. The proposed regulations provide for electronic filings with the Bureau and the Board and include regulations consistent with procedures that have been put in place since Act 147 and Act 109 (dealing with support obligations).

Significant changes are the detailed procedure for withdrawal of appearance of counsel and a prohibition of WCJ's performing mandatory mediation in their own cases. A settlement conference with the adjudicating judge may still be conducted if all parties and the adjudicating judge agree.

Commonwealth Court holds home health nurse is traveling employee from her home to patient's home

2008-08-21T07:18:00.000-04:00

In L. Jamison v. WCAB (Gallagher Home Health Services) the Claimant worked as a home health nurse. She also worked for another home health service and a mortgage company. Gallagher Home Health Services (Gallagher) allowed the Claimant to pursue her other employment and personal errands during the work day. She was paid by Gallagher only for the time spent with a patient. She received mileage reimbursement when she left one patient's home to travel to another's.

The Claimant was injured in an auto accident on her way from her home to the home of Gallagher's patient. The WCJ found the Claimant was not in the scope of employment because she could be working for any employer on a given day. The Board affirmed, but the Commonwealth Court reversed. The Court stated the record showed the Claimant was going to the home of Gallagher's patient. If the record showed she was going somewhere else, there could have been an abandonment of employment, but that was not the case.

The Claimant's travel was necessary to provide in-home care, the Claimant did not have to report to the Employer's main office before or after the visit, and the Claimant had no fixed place of employment. Accordingly, she was in traveling employee status with Gallagher when she was injured while driving from her home to the patient's home.

Commonwealth Court holds IRE doctor must testify the Claimant has reached maximum medical improvement

2008-08-15T17:55:00.000-04:00

In C. Combine v. WCAB (Nat'l Fuel Gas Distribution Corp) the Claimant underwent an IRE, which found a twenty per cent (20%) total body impairment resulting from a right knee injury. The Employer filed a Modification Petition.

The IRE physician admitted the Claimant has persistent swelling, medial laxity and discomfort following a partial knee replacement. The physician admitted a total knee replacement could improve the Claimant’s condition.

Most importantly, the physician testified he did not evaluate the Claimant to determine whether the Claimant reached maximum medical improvement. The doctor explained the nature of the examination would be different, and the doctor’s understanding was a finding of MMI was not necessary to complete an IRE under Pennsylvania law.

The WCJ accepted the premise that MMI did not need to be determined. The statute and regulations do not mention MMI. The WCJ granted the modification petition, and the Board affirmed.

The Commonwealth Court reversed. The Court looked to the AMA Guides, which state impairment ratings are to be performed when an individual is at a state of permanency. The Guides state this term is usually synonomous with MMI. The Court also stated an MMI requirement is consistent with the 104 week prerequisite and the six month waiting period between IREs [sic IMEs - see Section 306(a.2)(6)].

Counsel should anticipate the Court interpreting and valuing the provisions of the Guides.

Chapter 1.8 in the Fifth Edition provides impairment percentages account for basic activities of daily living, not including work, and further individual analysis of work activities is required to determine disability. Sound familiar?

New York Times previews study of how parties fared when they rejected settlement and went to trial

2008-08-09T08:51:00.003-04:00

A study of outcomes for parties who rejected settlement and went to trial will be published in the September Journal of Empirical Legal Studies. In this preview, the New York Times touches upon some of the issues that cause parties not to settle.
Overall, the study reported plaintiffs got less in 61% of cases, while defendants paid more in 24% of cases. In 15% of cases the result fell in the range between the last demand and the last offer. Randall L. Kiser, a co-author of the study, said the lesson for plaintiffs is to not view the defendant’s offer as half a loaf. The study results suggest defendants' offers are the full loaf or more.

Another interesting observation is that uninsured defendants have a higher error rate. Defendants won’t bankrupt themselves in a settlement, even if they know a verdict will bankrupt them. The graphic attached to the article shows the stakes were much higher in the cases where the defendant fared worse. It would be interesting to look at how the outcome was measured. If it doesn't continue to collection, even more plaintiffs are making bad decisions.

Commonwealth Court reaffirms standard for notice in occupational hearing loss claims

2008-08-08T17:34:00.001-04:00

In Crompton Corporation v. WCAB (King) the Claimant filed a claim for occupationally induced hearing loss on April 2, 2004, and thus provided notice of the claim to the Employer. The Employer identified a new patient information sheet completed by the Claimant on May 7, 2002, on which the Claimant indicated to his physician he believed his hearing loss was work-related. The WCJ and Board nevertheless found the Claimant gave notice within 120 days of the date of injury.

The Court affirmed. The primary rule, as stated by the court in Socha v. Workers' Compensation Appeal Board (Bell Atlantic PA), 725 A.2d 1276 (Pa. Cmwlth. 1999) (Socha I), aff'd, 566 Pa. 602, 783 A.2d 288 (2001) (plurality) (Socha II) is that the Claimant must be informed by a doctor that he has a compensable work related hearing loss. In this case, the report establishing this was dated February 27, 2004. Furthermore, the Claimant continued to work and presumably his exposure continued. Accordingly, his date of injury would be April 2, 2004, the date of filing, pursuant to Section 306(c)(8)(ix) of the Act.

Centers for Medicare and Medicaid Services determines thermal intradiscal procedures are not reasonable and necessary

2008-08-04T21:55:00.000-04:00

An Ortho Supersite article excerpted from the journal Spine states CMS proposes to issue a national non-coverage determination for thermal intradiscal procedures (TIPs). CMS’ review indicates the mechanism of the associated diagnosis – nonspecific chronic low back pain – as well as the mechanism of the treatment are uncertain according to the medical literature.

Commonwealth Court reverses Workers’ Compensation Appeal Board holding that Claimant’s disability began on first day off work

2008-08-04T21:49:00.001-04:00

In Albert Einstein Healthcare v. WCAB (Stanford) the WCJ awarded benefits based on the testimony of the Claimant’s doctor that the Claimant was disabled while under his treatment. However, the Claimant did not start treating with the doctor until over a year after her last date of work. The WCJ decided benefits could only be awarded beginning with the doctor’s first evaluation.

The Board modified the WCJ’s decision and awarded benefits as of the first day off work based on the Claimant’s testimony. The Court reversed, holding where the causal connection between the work injury and disability is not obvious, medical testimony establishing the period of disability is required.

Statute of Limitations Waiver and Workers’ Compensation

2008-07-26T08:07:00.000-04:00

A Law.com article reports many companies are using and enforcing a waiver limiting statutes of limitations for employment claims to six months. The waiver is executed in the job application. The article refers to employment discrimination claims. The Pennsylvania Workers’ Compensation Act provides parties can’t alter the provisions of the Act except in collective bargaining.

The impact would be that the claimant would have to pursue claims during the first six months of treatment and recovery from the work injury. Although claimants typically waive employment law claims for minimal or no consideration as part of a compromise and release, they certainly would receive no consideration if these claims are barred.