Thursday, February 27, 2003

Another Interpretation of Caso

In the Commonwealth Court Case of Henry v. W.C.A.B. (Keystone Foundry), the Claimant attended a vocational interview by an expert not then approved by the Department. The expert's testimony was used in support of the modification granted by the WCJ. The Commonwealth Court held the Claimant voluntarily attended the vocational interview and failed to challenge it before the WCJ. Under these circumstances, the Claimant waived a challenge based on Caso and Walker. The Commonwealth Court did not address the footnote in Summit Trailer Sales suggesting the testimony of a vocational expert who was not approved by the Department at the time of the interview is not competent. However, the competency of the vocational expert may not have been fatal to the employer's case in any event, because the modification was granted on a funded employment job referral.

Paralegal and Law Clerk Fees Are Not Recoverable Under Section 440 of the Act

The Commonwealth Court case of Vitac Corporation v. W.C.A.B. (Rozanc) addressed the scope of Section 440 costs. These include only costs for attorney's fees, witnesses, necessary medical examination and the value of unreimbursed time to attend the proceedings. The Court indicated the maxim of expressio unius est exclusio alterius provides that attorney's fees are the only reimbursable cost from the attorney's office. In other words, an attorney will not be permitted to unbundle costs for law clerks, paralegals, online legal research, travel expenses [except as as allowed under 34 Pa. Code Section 131.67(a)], mailing expense, faxes, copies, and telephone expense.

Employees of Statutory Employer are Immune From Civil Suit

In the case of O'Donnell v. R.M. Shoemaker and Co. and Fluidics. Inc. and Penn the Superior Court addressed whether the employee of the Claimant's statutory employer is immune from suit. The Court held that where an individual's employer is immune from suit under Section 203 of the Act, the individual is in the same employ as the Claimant under Section 205.

Tuesday, February 25, 2003

The Third Circuit case of Sanfilippo v. Barnhart stands for the proposition that the Social Security offset should be calculated right the first time. The Claimant did not get a lifetime pro-ration in his first Order approving a Compromise and Release. When the Administration made a determination that the offset would be $195.15 per week, the Claimant went back and got an amended Order of the WCJ setting forth a lifetime pro-ration and an offset of $29.59. An ALJ accepted the Order, but the Administration appealed and the District Court reversed. The Third Circuit Court of Appeals affirmed the District Court finding the amended Order of the WCJ was only for the purpose of changing the Administration's initial determination. The Court held the Administration's initial determination was consistent with law and should be upheld.
This case did not hold that a lifetime pro-ration could be disregarded by the Administration if it is included in the original Order on a Compromise and Release. The SSA's Program Operations Manual System (POMS) still calls for deference to the rate specified in the lump sum award.
Thank You to the Honorable Michael Rosen and and Deputy Secretary Elizabeth Crum for sharing this case.
The 2000 Life Tables have been published by the National Center for Health Statistics. For Sciarotta language in Compromise and Release Agreements, use of the most recent Life Tables gives the most favorable calculation. Note the suggested citation:
Arias, E. United States life tables, 2000. National vital statistics reports; vol. 51 no. 3. Hyattsville, Maryland: National Center for Health Statistics. 2002.

Monday, February 24, 2003

A University of Pittsburgh study discovered that people who are unhappy at work and who are forced to work under intense and hectic conditions are more likely to feel back pain than others. The study adjusted for factors such as prior injury and amounts of lifting, and concluded the quality of the workplace influenced workers' reports of back pain. Article

Tuesday, February 18, 2003

An Arizona appellate court found that since Arizona's workers' compensation statute provides for reimbursement of the medical expenses of an injured worker, expenses of the injured worker's wife and two children to engage with him in marriage and family counselling are compensable. The court reversed the ruling of the hearing officer denying the claim because there is no provision in the statute for reimbursement of medical expenses of anyone other than the Claimant. The Court relied on liberal construction and the beneficial effect to the injured worker in making its ruling. Decision
Memorial of Frank Beal, former Director of the Bureau of Workers' Compensation, who passed away on February 14.
The Wall Street Journal has an article today about the deficiencies in some MRI scans. A physical therapist injured her hip, but the MRI was negative. After some additional time, she had an enhanced MRI (a better machine, not dye) that showed a cartilage tear. A physician had neck pain and his MRI was negative. He realized he didn't have pain lying down, including while he was in the MRI tube. He had a standing MRI that showed a herniated cervical disc. The article explained that the open and standing MRI machines have much less power, and therefore less clarity. The strength of machines is measured in "Teslas." The best machines currently are 1.5 Teslas, open and standing machines are 0.5 or 0.6 Teslas, and some manufacturers are introducing 3 Tesla machines.