Thursday, December 26, 2002

A San Francisco Chronicle column called "On the Fringe" gives us this: A law firm in California has a web site seeking claims of care givers (such as spouses) for care to injured workers. The premise is that if a care giver does something for an injured worker that the worker can't do because of the injury (cooking, cleaning etc.), the care giver is entitled to be compensated at the rate that the injured worker would have otherwise had to pay for the service.
The State of West Virginia has recognized the importance of compliance with the 21 day rule, a recurring theme of Bureau Director Thompson's State of the Union message. Link
The maximum rate for 2003 is $675.
The Commonwealth Court took a look at Section 302(a) of the Act and again looked past it to Section 302(b) and dismissed the Claimant's claim. These are the statutory employer sections, and they state a) a contractor is liable to employees of an uninsured subcontractor and b) an employer who controls premises is liable to a laborer or assistant hired by an employee or subcontractor to perform a part of the employer's regular business. Leibensperger v. WCAB (Thomas H. Lewis Builders) is a garden-variety case of an injured employee of an uninsured subcontractor. Like every case, the general contractor could and should have assured the subcontractor had coverage. The case falls under the plain language of the first paragraph of section 302(a).

However, the first half of the second paragraph of 302(a) contains the additional provision that a person who contracts with another for mineral removal or timber cutting is deemed a contractor. The Commonwealth Court held this vitiates the rest of the Section. The Court stated it would apply this Section only for these two activities.

The second half of the second paragraph re-emphasizes that a person who contracts with another to perform part of the person's regular business is liable. This person should assure subcontractors are covered, unless, apparently, the work is something other than mineral removal or timber cutting.

Moving on then to Section 302(b), there is the additional requirement of control of the worksite by the contractor for the contractor to be found the statutory employer. The Claimant in this case, like several that have come before him, could not prove this control element. The claims are dismissed, and the contractor who did not assure his subcontractors had coverage is relieved of liability.

Thursday, December 19, 2002 has an article about blogs like this one and the best legal web sites of 2002.
The Workers' Compensation Subpoena form is now on the web to print, fill out and mail to the Judge for signature and seal.

Wednesday, December 18, 2002

In the Ohio Supreme Court mandatory testing for drugs and alcohol after an injury and a legislative presumption that refusal establishes a positive test was found to be unconstitutional. The court held a Claimant can refuse the test and offer testimony to overcome the implication of the Claimant's refusal. State ex rel. Ohio AFL-CIO v. Ohio Bur. of Workers' Comp.

Tuesday, December 17, 2002

In the Martino v. WCAB (PECO Energy) case posted today, the Commonwealth Court considered an arbitrator's post award allocation of loss of consortium. The court held the arbitrator was "functus officio" e.g. once the arbitrator issues an award the arbitrator is without power to make any change. In proceedings before the WCJ, 34 Pa. Code Section 131.112 gives the WCJ an unlimited period of time to amend or correct a typographical or clerical error or obvious omission or error on the part of the judge in a decision or order. Also, a party may request an other amendment or correction within 20 days. An other amendment or correction may be made upon written agreement of the parties.
the Commonwealth Court looked at the issue of whether the Claimant can seek an allocation of settlement proceeds to loss of consortium in workers' compensation subrogation proceedings post Thompson v. WCAB (USF&G) (Pa. 2001). Thompson held that a settlement allocation could be reviewed if it was obviously structured to defeat the employer's subrogation right. In the new case, Martino v. WCAB (PECO Energy), the Commonwealth Court recognized that the lump sum settlement represented consideration of release of both the Claimant's cause(s) of action and her husband's loss of consortium claim. However, there was no allocation because this was not provided for in the high-low settlement agreement under which the sum was paid. The Commonwealth Court upheld the decision of the WCJ that awarded subrogation of the whole settlement under Darr Construction Co. v. WCAB. The decision is based on the premise that the Claimant's interests can and must be protected up front.

Monday, December 16, 2002

I am unaware of how the Florida system compares to ours, but a thorough evaluation of their workers' compensation "crisis" appears in the Sarasota Herald-Tribune
The Commonwealth Court Case of Stalworth v. WCAB (County of Deleware) sort of falls under the topic of the Supreme Court cases discussed on Thursday. On a fatal claim that was denied, Employer's medical was possibly incompetent under Newcomer. The Commonwealth Court didn't reverse, however, because Claimant's medical was rejected by the WCJ as not credible, and it is the Claimant's burden. The Claimant failed to produce substantial, competent credible evidence to carry her burden.

Friday, December 13, 2002

The revised Judges' Rules were published last week. At the link, be sure to move on to page 2 and 3 to get the whole posting.
The Workers' Compensation Board of British Columbia, Canada postulated that a comprehensive medical assessment would identify serious pathology after subacute work-related low back injury. However, they could not identify medical evaluation variables that would account for significant proportions of variance in return to work. The weight of evidence obtained in the study suggested to the researchers that injured workers' subjective interpretations and appraisals may be more powerful predictors of the course of postinjury recovery than exclusively medical assessments. Link

Thursday, December 12, 2002

The first sentence in the Supreme Court case of Leon E. Wintermeyer, Inc.and American General Group v. WCAB (Marlowe) is "This appeal concerns the application, in the administrative law setting, of what has been termed the capricious disregard standard of appellate review." In the end, this is a Newcomer v. WCAB (Ward Trucking) case. The Supreme Court ruled the WCJ properly dismissed a claim petition where the Employer rebutted the Claimant's history given to her doctor, rendering his opinion incompetent. This was a capricious disregard case because the Employer presented no medical evidence and the Commonwealth Court, finding the Claimant's medical internally credible and consistent, reversed the WCJ on the capricious disregard standard. The Supreme Court emphasized that both parties presented evidence, including cross-examination of the Claimant and Employer witnesses that rebutted her description of her job duties (it was a carpal tunnel case). Accordingly, substantial evidence supported the WCJ's decision. The capricious disregard standard did not apply. Perhaps foreshadowing Daniels, the Supreme Court did note, however, that Section 704 of the Administrative Agency Law will not be interpreted to make judicial review unavailable when substantial evidence supports an agency's factual findings, but it is clear beyond doubt that its conclusions are based on capricious disregard of other evidence, for example, if the agency expressly refused to resolve conflicts in the evidence and make essential credibility determinations.

Wednesday, December 11, 2002

From the New York Times "Is Litigation a Blight or Built In?" by Daphne Eviatar: Academics across the political spectrum point to state-run workers' compensation schemes as a rare example of a government-run alternative to litigation in America: a way to help injured workers without making them fight it out in court. Although such government-run systems have their drawbacks, even Mr. Olson, a senior fellow at the conservative Manhattan Institute, is surprisingly sanguine about them. In his forthcoming book, "The Rule of Lawyers: How the New Litigation Elite Threatens the Rule of Law," Mr. Olson warns that mass litigation has transformed lawyers and judges into an unelected "fourth branch of government." So to him, a workers' comp-style alternative to lawsuits would be an improvement. "It's so much more civilized," he said recently. The link requires a free subscription.
The Commonwealth Court ruled in February that an insurer liable for the payment of compensation cannot take a credit under Section 204(a) of the Act for a severance benefit paid by the employer. Kramer v. WCAB (Rite Aid Corp.) The Court just revisited Kramer by reviewing another case involving the same severance benefit. In Hulmes v. WCAB (Rite Aid Corp.) the Court remanded to the Board to determine whether a retrospective premium arrangement, a minimum premium plan or some other device exists which would support a finding that the Employer was directly liable for the payment of compensation. Under these circumstances, the Court would allow the credit.