Sunday, March 10, 2013

Twitter Link

I have not been able to prepare posts to Pennsylvania Workers' Compensation Journal for some time. My Twitter list workers-compensation has a lot of good sources. The link to Twitter is down the page on the right.

Monday, September 12, 2011

Decedent in Home Office Was Not in Course of Employment if on Personal Comfort Break

In Werner v. WCAB (Greenleaf Service Corporation) the decedent had a home office. The claimant surviving spouse found the decedent unresponsive in his home office desk chair. The decedent suffered a massive intracranial hemorrage. The evidence indicated the decedent fell on his outside steps, then went in an upstairs bathroom before going down to his home office.

The defense focused on testimony that the decedent was supposed to be in the employer's headquarters when he was not travelling in his job in international sales. The employer did not dispute that it provided the office equipment in the home office or that the claimant sent some work related e-mails the morning of his accident. The claimant had cancelled an overseas trip because he was getting medical care for a hand laceration. The employer witnesses testified they considered him to be on sick leave, and the WCJ found this testimony credible. The WCJ found the claimant to be not in the scope of employment.

The claimant, however, was salaried with flexible hours and had made no formal request for sick leave. The Commonwealth Court framed the issue as whether the decedent was furthering the business interests of the employer when he was injured. The precedent they analyzed was Verizon Pennsylvania, Inc. v. WCAB (Alston), a case in which the claimant worked in a home office. In Alston, the claimant received a work related phone call while on a personal comfort break. She fell down the stairs while still on the phone.

The Court explained an employee in a home office is a "stationary" employee. When a stationary employee leaves the premises during authorized breaks for personal reasons, the employee is not within the course of employment. The claimant bears the burden to prove all elements of the claim. Because the claimant in this case could not prove the decedent was furthering the business interests of the employer when he fell outside, the claimant did not meet her burden to show the decedent was injured in the scope of employment. The decision of the WCJ was affirmed.

Although not cited by the Court, the case of Department of Labor and Industry v. WCAB (Savani) is on point. In that case, an employee on a paid break went outside for a walk around the building and fell in the street. The WCJ and WCAB awarded benefits, but the Court held the claimant was a stationary employee attending to her personal comfort and was not acting in furtherance of the employer's business or affairs. The Court reversed, holding the claimant's injuries were not in the scope of employment.

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Monday, August 29, 2011

Claimant Who Returns to Light Duty and is Dismissed for Concealing Employment During Disability is Not Entitled to Reinstatement.

In Sauer v. Workers' Compensation Appeal Board (Verizon Pennsylvania, inc.) the Claimant returned to light duty on August 16 and a notification of suspension was issued. On August 17, the Claimant and his union representative were shown surveillance of the Claimant doing various work during his period of disability. The Claimant had reported no earnings from other employment via LIBC-756. The Claimant was discharged.

The Claimant did not challenge the notification of suspension or grieve the firing. In October he filed a reinstatement petition and in December he filed a review petition to add additional physical and psychological injuries. The WCJ dismissed the review petiton based on the credibility of the doctors who testified and dismissed the reinstatement petiton based on the Claimant's dismissal for cause.

The Claimant argued he had only returned to light duty when he was seperated from employment, and the work depicted in the surveillance did not demonstrate that the Claimant could perform full duty. The court held, however, that the evidence met the standard of proof to conclude the Claimant was discharged for cause and the Claimant's loss of earnings was unrelated to the work injury. The decision of the WCJ was affirmed.

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Monday, August 22, 2011

Adult Stem Cell Treatment of Degenerative Disc Disease

A company experimenting in adult stem cell treatment of degenerative disc disease has announced a successful phase 2 clinical trial. The procedure injects mesenchymal precursor cells into damaged intervertebral discs. The company reported that in the clinical trial the subject disc demonstrated reversal of the degenerative process, regrowth of disc cartilage, and sustained normalization of disc pathology, anatomy and function for at least six months.

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Sunday, July 18, 2010

Commonwealth Court Holds Three Year Filing Limitation in Second Paragraph of Section 413 Applies to Entire Section

In Fitzgibbons v. WCAB(City of Philadelphia) the Claimant had a May 4, 1997 injury described on a notice of compensation payable as epicondylitis of the left elbow. Benefits were suspended upon her July 13, 1998 return to work without loss of earnings. On August 26, 2002 she filed a review and reinstatement petition seeking to add neck, low back, left hip, leg and knee injuries.

The Claimant's testimony that all of these injuries existed at the time the NCP was issued is presumed credible.

Under prior caselaw, a petition to change the description of injury must be filed within three years. Jeanes Hospital v. WCAB (Hass) However, in the course of proceedings under any pending petition, a WCJ can review the description of injury"at any time" if it be proved that the notice of compensation payable was in any material respect incorrect. Cinram Manufacturing, Inc. v. WCAB (Hill) The Commonwealth Court has now held that the Claimant has three years from the last date of payment to file a petition to review the description of injury even in a case where the injuries existed at the time the NCP was issued.

The Court stated both paragraphs of Section 413 must be read together. Accordingly, the limitation that a petition must be filed within three years after the last payment applies to any petition to review, modify or reinstate filed under the section.

Parties must be aware that consistent with the Supreme Court's holding in Cinram, a WCJ may review and modify or set aside an NCP or Agreement "at any time" upon petition or in the course of proceedings under any petition pending before the WCJ. A Claimant petitioning to amend the description of injury has a three year limitation, but a Claimant who is before the WCJ on another petition can always add descriptions of injury that existed when the NCP was issued.

Commonwealth Court Reverses Award Based on Lack of Notice

In Allegheny Ludlum Corporation v. WCAB(Holmes) the Claimant worked in metatarsal boots with steel up above the ankle. Her foot problems began in 1994. She had surgeries and periods of disability when she collected sickness and accident benefits. She went off work for the last time prior to filing her claim petition on June 11, 2003.

The Claimant never testified she informed her Employer of a connection between her work and aggravation of her foot condition. Notice in this case was identified as occurring on February 17, 2004. The claim petition was filed on December 9, 2004.

In the face of this record, the Claimant argued a November 11, 2004 report of her treating physician was the first opinion she received of causation. She argued her December 9, 2004 filing was within 120 days.

Obviously, the Claimant had given notice back in February. Furthermore, the Claimant testified her pain was worse at work than at home prior to her last date of work. The court distinguished the Supreme Court precedent of Sell v. WCAB(LNP Engineering), which stands for the proposition that the Claimant is not charged with knowledge of the injury until she receives a physician's report of causation. In Sell, the Claimant was a smoker and had to see a lot of doctors before she got an opinion relating her pulmonary symptoms to formaldehyde exposure.

The Court ultimately held the Claimant in this case knew or should have known the connection between her symptoms and her work duties before her last day of work and the 120 day notice period ran from that date.

The dissent would have remanded the case for the Claimant to go back to square one and testify about conversations she must have had with her employer between 1994 and 2003 from which the Employer might be charged with notice. It is incongruent to assume the Employer did not know the Claimant's work in metatarsal boots was aggravating her condition over the course of two prior surgeries and periods of disability with return to work and worsening of her condition. The purpose of the notice provision of the Act is to give the Employer the opportunity to conduct a contemporaneous investigation. Given the facts of this case -- including the lack of a medical opinion until November of 2004 -- it is as clear that the Employer should have known as it is that the Claimant should have known. It is, however, the Claimant's burden.

Saturday, July 10, 2010

2006 Life Tables Published - CMS Requires Use of 2006 Table After July 19

The National Center for Health Statistics has published the 2006 Life Tables. These are the most up to date life tables for use in Sciarotta calculations.

The Centers for Medicare & Medicare Services published an update advising any Workers Compensation Set Aside Proposal submitted after July 19, 2010 should use Table 1: Life table for the total population: United States 2006 for WCMSA life expectancy calculations.

Saturday, July 03, 2010

Cameras in the Courtroom and Justice

Cameron Stracher, a New York writer and media lawyer wrote Who's Afraid of Cameras in the Courtroom, an opinion piece for the Wall Street Journal, on July 2. Mr. Stracher argues the prohibition of audio and video recording in the courtroom is over broad and inconsistent with the non-stop media coverage of trials outside the courtroom.

Mr. Stracher does note the Supreme Court precedent, Estes v. Texas, wherein the Court explained cameras have a prejudicial effect on pre-trial publicity, affect the truthfulness of witnesses, and generally impact fair-trial rights.

The distinction is that the parties have rights in the courtroom they do not have on the street. The courtroom is a place of equal justice under law. The street has different rules. For example, in workers' compensation law, we bring the workplace into the courtroom. The supervisor and the claimant are subject to command and control in the workplace, but in the courtroom they are equals.

The current rule allowing only reporters with notebooks and sketch pads maintains the balance of the rights of parties in the courtroom. With a recording device on, a witness is aware that the witness's words and actions will go directly to observers outside the courtroom. The witness will be concerned with a sound or video bite taken out of context and its effect in the court of public voyeurism. The parties must be free to tell their story, warts and all.

The warts almost always lend credibility to the story.

No one is afraid of cameras in the courtroom. They are just inconsistent with the administration of justice.

Wednesday, June 30, 2010

Commonwealth Court Modifies Benefits of Claimant Who Applied For And Did Not Get Jobs in Labor Market Survey

In Phoenixville Hospital v. WCAB (Shoap) the Claimant received a Notice of Ability to Return to Work sometime after a May 9, 2007 IME. In July the Claimant received a Labor Market Survey (LMS) listing three jobs. The jobs were open and available on May 21, June 5 and June 11. The Claimant applied for the jobs and did not receive an offer of employment. In August the Claimant received a supplemental LMS with jobs available July 9 and one continuously available. The Claimant did a telephone interview with the last employer and was told she could not work at the position. The Claimant did not look for work independently.

The WCJ denied the Employer's modification petition. The WCJ's decision was consistent with South Hills Health System v. WCAB (Kiefer) with one difference. The WCJ did not reject the credibility of the vocational expert's earning power opinion (based on the LMS) on the basis that the Claimant applied for the positions and did not receive any responses. The Board affirmed.

The Court held that under these circumstances, the record supported a modification of benefits based on South Hills and Section 306(b)(2) of the Act. The Court said only the position that the Claimant was interviewed for and rejected at was unavailable. It was the lowest paying job. The Court nevertheless modified benefits based on the average of all the jobs, because that was the relief the Employer requested.

The Court stated the Claimant was obligated under the Notice of Ability to Return to Work to look for work when the jobs were open and available. Without more, the fact the Claimant applied a month later and did not hear back does not rebut the testimony of the vocational expert that the jobs were open and available. The Court stated Kachinski v. WCAB (Vepco Construction Co.) 532 A.2d 374 (1987) is, with limited exception, an antiquated standard. The Court also suggested that modification based on last month's open and available jobs is not harsh, because similar employment opportunities will regularly become available. The Court clearly explained this is the result Section306(b)(2) requires.

Wednesday, February 10, 2010

Medical Evaluation of Work Injuries and 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.

Friday, October 30, 2009

Presentation at Central Pennsylvania Regional Business and Industry Expo

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