Tuesday, May 27, 2003

Supreme Court Sends Issue of Change of Status of Illegal Aliens Back to Commonwealth Court

DDP Contracting, Inc. & Penn National Ins. v. WCAB (Mora) presents the issue unresolved by The Reinforced Earth Co. v. WCAB (Astudillo), i.e. what is the Employer's burden to suspend or modify benefits awarded to an illegal alien?

In Reinforced Earth, the case was remanded to the WCJ to make a record on the Employer's request that benefits be suspended. The Court held a suspension will not be granted on the sole basis that an illegal alien can't be employed, but this does relieve the Employer from showing job availability. The Court discussed earning power as a basis for change of status, but in a footnote stated it did not endorse the Commonwealth Court's suggestion that an Act 57 analysis be undertaken. One possible outcome could be that a credible medical opinion that the Claimant could return to work would suspend benefits.

However, in the present case this outcome is not easy to arrive at. The WCJ has credited a medical opinion that the Claimant is unable to return to work as a roofer. Another fact is that the Claimant found new work at a reduced wage. Since the Supreme Court's decision in Reinforced Earth post-dated the Commonwealth Court's decision in DDP Contracting the Supreme Court exercised its perogative to see what the Commonwealth Court can make of the facts of DDP Contracting. In the meantime, the Employer's burden to show a change of status remains anywhere between a medical release and job availability.

Friday, May 23, 2003

New Jersey Supreme Court Allows Claim for PTSD Filed Six Years After Date of Injury

In Diana G. Brunell v. Wildwood Crest Police Department and Samuel Stango v. Lower Township Police Department (A-126/127-2001) the New Jersey Supreme Court explained that Post Traumatic Stress Disorder can be considered an occupational disease, following decisions of courts in Colorado, Maryland, North Carolina, and Virginia. Accordingly, the Claimants could file within two years of discovery of their compensable injury.

Commonwealth Court distinguishes Chavis in Case Where Claimant's Chronic Pain Is Not Aggravated by Modified Job Duties

In S. Brobst v. WCAB (Schuylkill Products, Inc.) the WCJ rejected the Claimant's testimony he could not perform a light duty job on credibility grounds. The Claimant appealed citing Chavis v. W.C.A.B. (Port Authority of Allegheny County) 598 A.2d 97 (1991) for the proposition that the job was not available when he could not perform the job without chronic pain. The Court observed the credible medical testimony established only that the Claimant would have chronic pain with fatigue. The Court distinguished Chavis because in that case the duties of the job aggravated the Claimant's condition. The decision of the WCJ suspending benefits was affirmed.

Wednesday, May 21, 2003

Central Bucks School District v. WCAB (Belz)

Central Bucks School District v. WCAB (Belz) re-emphasizes that a Claimant has a presumption of ongoing disability related to the work injury when she is on modified duty and she has a recurrence of loss of earning power. Here the Claimant had non-work related fibromyalgia, but the Court cited Latta holding the Claimant had no medical burden for reinstatement. The burden to show job availability shifted to the Employer, and it did not meet its burden under Kachinski .

Tuesday, May 20, 2003

OSHA Voluntary Injury-Reducing Guidelines for Grocers Proposed.

Philadelphia Business Journal has an article on OSHA's proposed voluntary injury-reducing guidelines for grocers with statistics on musculoskeletal disorders at grocery stores in 2001

Curent Trends in Workers' Compensation Insurance

Risk and Insurance Magazine on-line has an overview article of the present factors affecting workers' compensation rates.

Law Journal Television Program on the Web

The Law Journal TV Program in Philadelphia posts its past programs for webcast. Settling the Workers' Comp Claim was presented on March 17. 2003 and You Got Your Workers' Comp Benefits-- Now Get Back to Work! was presented on May 19. The latter program could be on the webcast page in several weeks.

Unispacer Treatment for Arthritic Knees

Dr. Charles L. Cole Jr., an orthopaedic surgeon from SUN Orthopaedic Group Inc. in Lewisburg is offering the Unispacer insert to avoid knee replacement surgery in arthritic knees.

Monday, May 19, 2003

A. Zacour v. WCAB (Mark Ann Industries)

A. Zacour v. WCAB (Mark Ann Industries) is a case in which the Claimant received a third-party settlement that exceeded the accrued workers' compensation lien. The issue was at what percentage the Claimant should receive credit for the Claimant's costs of litigation when a medical expense is incurred. The WCJ and the Board used the percentage of total costs of the third-party award that the Employer was responsible for. However, the Commonwealth Court noted that to the extent the Claimant used the balance of the subrogation lien for medical, the Claimant would be shorted. Accordingly, the Court held the Claimant was entitled to receive the same percentage of medical expenses as the percentage of future TTD the Claimant is entitled to receive during the grace period.

Wausau Insurance Companies v. WCAB (Comm. of PA)

In Wausau Insurance Companies v. WCAB (Comm. of PA) Wausau argued that supersedeas reimbursement in a claim petition starts when compensation is no longer payable rather than a later date when supersedeas was requested. The context is a grant of a claim and a termination by the WCJ, then the Board (15 months later) reversed the termination portion of the WCJ's order. The Employer immediately filed a Termination Petition and appeal with supersedeas requests. On remand, the termination date found by the WCJ was later, but still 29 months prior to the Employer's supersedeas request. Reviewing the relevant case law and statute, the Commonwealth Court held the Employer cannot get supersedeas reimbursement prior to its request, even though the result is not equitable.

Based on this decision, the Employer has a right to and must file a petition with a supersedeas request during the pendency of a claim petition when evidence warrants. Disposition of the petition will be preserved in the appeal record.

Allied Products and Services v. WCAB (Click)

In Allied Products and Services v. WCAB (Click) the WCJ rejected the vocational expert's testimony as not credible. On appeal, the Employer alleged errors in the application of Section 306 of the Act. The Court did not reach any of these issues because without credible vocational expert testimony, the Employer cannot sustain its burden.

P. Dowhower v. WCAB (Capco Contracting)

P. Dowhower v. WCAB (Capco Contracting) is a case regarding when an IRE request is timely, e.g. within 60 days of the expiration of 104 weeks of temporary total disability. The Commonwealth Court held that where an Employer requested designation of an IRE physician before the expiration of 104 weeks, but didn't have the exam and issue the Notice of Change of Workers' Compensation Disability Status until after 104 weeks had expired, the IRE and change of status is valid.

Sunday, May 18, 2003

Saint Luke's Hospital v. WCAB (Ingle)

In Saint Luke's Hospital v. WCAB (Ingle) the Commonwealth Court clarified the burden of a Claimant seeking reinstatement of temporary total disability benefits when she was fired from her modified duty job due to a criminal charge. At the time the Claimant was fired, she was merely charged, but later she pled guilty to a lesser charge. The Court held that when considering whether the Claimant was discharged "through no fault of her own" the WCJ must consider both job related and off duty conduct.

B. Hill v. WCAB (Ballard, Spahr, Andrews & Ingersoll, et al.)

The case of B. Hill v. WCAB (Ballard, Spahr, Andrews & Ingersoll, et al.) in its prior consideration by the Supreme Court held that an Employer could offer work to the Claimant during the pendency of a Claim petition and the Claimant had a duty to follow up on the offer in good faith. On remand, The Commonwealth Court analyzed whether the Employer met its burden to show job availability in this specific case, and the Court found insufficient evidence that a job was offered because the only job availability evidence was presumed when the Claimant and her doctors were asked if she could do certain jobs. The court held this evidence does not satisfy the second prong of Kachinski to show an open, available job within the Claimant's restrictions was offered.

M. Frye v. WCAB (Volkswagen of America)

In M. Frye v. WCAB (Volkswagen of America) the WCJ granted the Employer's modification petition and ceased 20% counsel fees awarded under the interlocutory denial of supersedeas. Although Counsel was successful in getting the Board to award counsel fees on the continuing partial disability benefit that was not at issue in the underlying modification petition, the WCJ, the Board and the Court denied counsel's attempt to recover this fee and a penalty for the period between the time the WCJ Order was issued and the time of the Board's Order.

Thursday, May 15, 2003

Bethlehem Steel Payments of Workers' Compensation Benefits to Recommence

According to the Patriot-News, the Department of Labor and Industry has advised injured workers of Bethlehem Steel who have stopped receiving payments that an insurer will take over payment in thirty days.

J. Hail v. WCAB (City of Philadelphia)

J. Hail v. WCAB (City of Philadelphia) outlines a case in which the Claimant was found to have voluntarily retired from the work force and benefits were suspended. The Claimant took a service based pension and moved to a trailer park. The WCJ found the Claimant did not folow through in good faith on job development because he failed to look for jobs on his own, although he did follow-up on all the jobs referred and was not offered employment. It is an unpublished opinion, which is appropriate because these cases are fact specific.

Sunday, May 11, 2003

Study on the Use of Flexeril in Cases of Acute Low Back Pain

Flexeril 5 mg provides symptomatic relief and reduced recovery time in cases of acute muscloskeletal spasm according to an article in Clinical Therapeutics. The study was reported on in Doctorsguide.com.

Study on the Use of Manual Therapy in Cases of Neck Pain

In cases of neck pain, a study endorsed manual therapy for relief in the acute phase, finding it more effective than physiotherapy or medications.

New Study on CT Guided Nerve Blocks

A recent study concluded computed tomography-guided interventional procedures offer highly accurate and conservative therapies for patients with back pain. The treatment decreased the need for pain medications by persons in the study and most importantly less than 3% of patients who underwent a CT guided interventional procedure needed surgical treatment for pain management.

Thursday, May 08, 2003

Commonwealth Court Publishes Opinion on Disposition of Penalties for Late Reimbursement of Blue Cross

In Westinghouse Electric Corp. v. WCAB (Weaver) the Commonwealth Court denied a laundry list of Employer arguments surrounding what penalties are due when the employer is late in reimbursing Highmark Blue Cross and to whom the penalties are paid. The penalties are payable to the Claimant. Penalties are payable: 1) On bills Ordered to be reimbursed by the WCJ, regardless of whether LIBC-9 or HCFA forms were provided; 2) Without regard to Highmark's agreement to waive penalties for a period of time; 3) On amounts found on the Explanation of Benefits forms even though the accident lien report showed different numbers; 4) On the difference when Highmark's reimbursement was less than the Act 44 repriced amount; and 5) On the Claimant's deductible. The Court further rejected the Employer's argument that no penalties are payable because the Claimant received no award on amounts payable to Highmark. The Claimant did receive indemnity and medical benefits for the injury.