Monday, June 30, 2003

Stipulation Effective Upon Execution - Penalties Accrue For Late Payment Even When WCJ Approval is Pending

G. Varkey v. WCAB (Cardone Industries & Fireman Fund)is a case rather limited to its facts, but the Commonwealth Court did reverse the Board and find a penalty and attorney's fees were due on late payment under a stipulation, even though the WCJ had not issued his decision approving the stipulation when the late payment was made.

Saturday, June 28, 2003

Atlantic Mutual Insurance Company Rating Lowered to BBB

Business wire reports Atlantic Mutual Insurance Company's Standard and Poor's rating dropped to BBB from BBB+. If the Company is not able to reduce its reliance on financial reinsurance, the ratings could be lowered further, according to the article.

Rockwood Moves to Suspend Benefits of Quecreek Miners

It was reported in the Johnstown Tribune-Democrat that Rockwood Casualty Insurance Co. has filed Petitions for Modification or Suspension of the Quecreek Miners workers' compensation benefits based on the $150,000.00 each received from The Walt Disney Co. for movie and book rights.

WCRI Publishes New Comparative Study of 12 States Including Pennsylvania

The Workers' Compensation Research Institute released its CompScope™ Benchmarks: Multistate Comparisons, 1994-2000 comparing 12 states' workers' compensation programs, including Pennsylvania's. The only information contained in the abstract is that benefit delivery expenses remain at a double digit level (between 12 and 15 per cent) and continue to increase at a double-digit rate. An Insurance Journal Article reports Illinois apparently performed worst in the survey.

Settling Cases in Luzerne County

In a Hazleton Times-Leader article Luzerne County's "close-out program' is reviewed. The County has earmarked 4.9 million of bond money to settle cases. The County is using a consultant, Case-Con Capital, Inc., Michael Judge. The article discusses Mr. Judge's fees and results.

Tuesday, June 24, 2003

Different WCJ Can Reweigh Credibility When Board Remands On Standard of Proof Grounds

City of Philadelphia v. WCAB (Rilling) is a case involving the Section 301(e) presumption that a firefighter's lung disease resulted from his employment. The WCJ didn't apply the presumption in the first instance, and the Employer won. After the Board remanded for application of the presumption, a different WCJ awarded the claim. The Commonwealth Court stated it was appropriate for the WCJ on remand to arrive at the WCJ's own credibility determinations, especially since they are so closely tied to applying the proper standard of proof.

Discharged Claimant Will Be Reinstated Unless Cause For Termination Rises To Claimant Bad Faith

In A. Cryder v. WCAB (National City) the Claimant was discharged for failing to meet production goals. The Commonwealth Court reversed the WCJ and the Board and held the Claimant was entitled to reinstatement. The Court stated that because the reason for the Claimant's termination could in no way be characterized as bad faith on her part in carrying out her duties, her earning power was not adversely affected through any fault of hers, so the Claimant met her burden under Pieper.

Saturday, June 21, 2003

Clinical Trial of Cervical Disc Spacer Device

Anne Arundel Medical Center (AAMC) is offering a clinical trial of a cervical disc spacer device to avoid cervical fusion. Article

Cognitive Therapy and Exercise as Effective as Lumbar Fusion for Chronic Low Back Pain and Disc Degeneration

In cases of chronic low back pain with disc degeneration, a Norwegian study compared disability outcomes with cognitive therapy and fusion surgery. "Those who received cognitive therapy attended a lecture that taught patients that ordinary activity would not damage their discs, and that they could bend their backs (the Indahl talk). The main aim of the talk is to help patients avoid the fear of harming themselves through activity, to teach them not to be over-cautious and to correct negative feelings that would have psychological impact on their condition. Their instruction was completed by teaching them three daily exercise routines." As compared to the group that had fusion surgery: "No differences were seen in pain, use of analgesics, emotional distress or life satisfaction, and an equal number of patients returned to work from both groups."

Virginia Orders Reciprocal of America To Liquidate carried an article that Virginia regulators ordered insurance company Reciprocal of America to Liquidate.

Governor Rendell Speaks About Workers' Compensation

Governor Rendell's comments about workers' compensation were reported in an article in the Citizen's Voice:

Judd Shoval, president of Guard Insurance Co., in Wilkes-Barre, a company that writes workers compensation policies in 20 states, said he was highly interested in the governor's responses to questions about workers compensation.

Shoval said the governor informed the business leaders he believes there needs to be some changes to the workers compensation system and that he plans to tackle these issues after the end of the current legislative session.
"His presentation was superb," Shoval said of Rendell. "His heart is in it. His delivery was excellent."

While Shoval believes the workers compensation system does not need a major overhaul, he agreed some areas within the system need improvement, such as the resolution of disputes and claims in a more rapid manner.

Thursday, June 19, 2003

Another Presbycusis Theory Rejected in Commonwealth Court

In Wheeling Pittsburgh Steel Corp. v. WCAB (Bruce) the Employer's expert, Dr. Chen, posited that the predominant portion of sensorineural hearing loss occurs during the first ten (10) to fifteen (15) years of noise exposure, and the Claimant had an interim audiogram with a 5.63% binaural hearing loss. Dr. Chen testified as the Claimant then aged, he acquired age-related hearing loss that brought him up to 14.325%. Dr. Chen cited a treatise supporting his analysis. However, the WCJ credited Dr. Bell, who related all 14.325% to cumulative occupational noise exposure.

The Board affirmed, and the Employer argued before the Court that the Board erred in applying Mozena in this situation because Dr. Chen did not use a table to deduct age-related hearing loss. The Court rejected this argument, holding "A WCJ may dismiss an entire school of science if he determines it lacks credibility." The Court did not award counsel fees for a frivolous appeal however, finding it was reasonable for the Employer to seek this clarification of Mozena.

In Fatal Claim, Counseling Expenses for Survivors Not Compensable

Village Auto Body v. WCAB (Eggert) is a fatal claim. The Commonwealth Court reluctantly found that medical expenses for counseling of Claimant and her children who witnessed the decedent's death are not compensable. The Court found the term "compensation" in Section 307 is free from ambiguity, and it contemplates only wage benefits.

Wednesday, June 18, 2003

Claimant Not In The Course and Scope of Employment While Merely "On Call"

In D. Sekulski v. WCAB (Indy Associates) the Claimant was a maintenance man for apartments. He carried a beeper and was to remain within 15 minutes away in case he needed to respond. While on his way home from a bowling alley, the Claimant was assaulted. The WCJ, Board and Commonwealth Court found him out of the course and scope of employment. The Court distinguished precedents that awarded benefits when the Claimant was on a lunch break, on a special mission for employer or on travelling employee status. The Court concluded that without more, the claimant who is simply "on call" is not furthering the employer's affairs.

Tuesday, June 17, 2003

Commonwealth Court Denies Vocational Exam by Supersedeas Order

Many practitioners have reviewed the April 4, 2003 Order of the Board in Struble v. Rocky Mountain Garage which affirmed the WCJ's grant of a petition to compel a vocational evaluation where the vocational expert had the Department's approval letter. In that Order the Board basically said it would not look behind the Department's post-Caso procedure. The Claimant appealed the Board's Order.

In an Order dated June 10, 2003, Judge Jiuliante has granted the Claimant's request for supersedeas and ordered that the Claimant does not need to attend a vocational interview as ordered by the WCJ. Judge Jiuliante stated: "The Department's current reliance on the vocational counselor's self-verification of his or her qualifications cannot be considered "approval by the Department prior to the interview as contemplated by this Court in Caso." (italics in original; open-ended parentheses in original)

Thanks to Vincent J. Quatrini, Jr., Esquire
Quatrini Rafferty Galloway
Greensburg, PA

Payment of Injured On Duty Benefits Estops City From Denying WC, But Does Not Preclude Section 413 Review

In Gunter v. WCAB (City of Philadelphia) the Claimant police officer was assaulted while off-duty in her driveway. The WCJ found her to be out of the course and scope of her employment. In the beginning, she was erroneously awarded Injured on Duty (IOD) benefits. The WCJ, Board and Commonwealth Court held these are different benefits with a different standard, therefore the City was not estopped from contesting the claim.

The Supreme Court affirmed on different grounds. The Court found the standards for IOD benefits and WC benefits are congruent. However, after an excellent analysis of when an Employer may contest liability in a Review Petition under section 413 of the Act, the Court held this was such a situation because the award of IOD benefits was erroneous.

Commonwealth Court Affirms WCJ Authority Over Credibility and Awards Atty Fees

Newcomer Products, et al. v. WCAB (Irvin) is a hearing loss case where the Claimant established a prima facie case, and the Employer put on a substantial defense with medical, industrial hygiene and supervisor testimony. The WCJ rejected the Employer's witnesses as not credible, and explained his reasons for doing so. The Employer's argument on appeal was that the WCJ capriciously disregarded competent evidence.

The Commonwealth Court went so far as to state it might not have agreed with the WCJ's reasoning, but held that the WCJ's reasoning is outside the Court's scope of review. Accordingly, the Court went on to hold that the Employer was only seeking review of the WCJ's credibility determinations, found the appeal was frivolous under Pa. R.A.P. 2744, and awarded attorney's fees of four hours at $150.00 per hour.

Friday, June 13, 2003

Volunteer Firefighters get 2/3 of Maximum Comp Rate

To the extent there was still confusion whether volunteer firefighters and emergency medical personnel get the maximum comp rate or two-thirds of the maximum comp rate, the Commonwealth Court has put the issue to rest. In V. Fearon v. WCAB (Borough of Ashland) the Court rejected the Claimant's assertion that the statewide average weekly wage defined in Section 601(b) of the Act is actually the maximum comp rate times 1.5. The Court held that what the Department of Labor and Industry publishes as the statewide average weekly wage under Sections 105.1 and 105.2 of the Act is the Section 601(b) presumed wage for firefighters and emergency medical personnel, and the presumed compensation rate is 2/3 of this wage.

Tuesday, June 10, 2003

Safety Articles on Hearing Conservation, Respiratory Protection and Stress

The Safety Next site news has articles regarding Hearing Conservation, Respiratory Protection and Stress in Workers with Advanced Degrees.

Shock Wave Therapy Dissolves Calcium Deposits in the Shoulder

It was reported in The American Journal of Sports Medicine that 61 per cent of patients in a Taiwan study had excellent results from shock wave therapy to address calcific tendonitis in the shoulder. Article

Maryland Court of Appeals Eliminates "Unusual Ocurrence" Requirement

In Harris v. Board of Education of Howard County the Maryland Court of Appeals stated that a requirement an accident arise from "unusual activity" is not supported in the Maryland Act, and is a minority view in the nation. Accordingly, the Court overruled the line of cases that injected the "unusual activity" requirement. An article in the Washington Post comments on the magnitude of this change.

Monday, June 09, 2003

WCIRB Suspends the Issuance of Experience Ratings based on Villanova and Legion Data

It was reported in Insurance Journal that Villanova and Legion Insurance notified the Workers Compensation Insurance Rating Bureau that statistical data they provided is either incomplete or inaccurate. Therefore the WCIRB has suspended the promulgation and issuance of experience ratings based upon data submitted by these companies after May 22, 2003. Article

Claimant Can Not Extinguish Former Counsel's 20% Fee When Compromising and Releasing Future Benefits

In Gingerich v. WCAB (US Filter) a continuing 20% attorney's fee was awarded on the grant of a fatal claim. When the Widow entered into a compromise and release waiving future benefits in consideration of wavier of the subrogation lien, The WCJ approved the Agreement and terminated the attorney fee and the Board affirmed. The Commonwealth Court held that even though the Claimant exercised her Section 449(a) right to compromise any and all liability under the Act, she did not have the right to extinguish the 20% counsel fee.

The result in this case might be explained by the answer to the question: "If the Attorney's fee is owed, who pays?" The Claimant is contractually bound to pay the fee. However, in the Compromise and Release Agreement in this case the Defendant agreed that it would pay the fee if it was found that the fee is owed.

Suspension May Be Appropriate If Overtime Is Not Available For Economic Reasons

In M. Capper v. WCAB (ABF Freight Systems, Inc.) the Claimant pressed the issues of reasonable contest where: 1) The Claimant returned to work full time, full duties, but with a wage loss due to lack of overtime (Employer sought suspension); and 2) the Employer initially contested thirty to forty mile trip expenses to obtain medical treatment in eastern Pennsylvania. The Commonwealth Court held there was a reasonable contest on both issues. Importantly, the Court cited the Supreme Court's decision in Harle and stated the Claimant may not be entitled to a partial if overtime was no longer available for economic reasons.

No Supersedeas Reimbursement for Grant of Section 306 (f.1)(8) Suspension

The Employer in Bureau of Workers' Compensation v. WCAB (Exel Logistics) sought supersedeas reimbursement when a supersedeas was denied, and the WCJ later granted suspension for refusal of reasonable medical treatment. The Commonwealth Court analyzed Section 443, and concluded supersedeas reimbursement is for change of status under Section 413 cases, and there is no such remedy in a section 306(f.1)(8) case.

The dissent suggested a common sense approach would not distinguish a Section 306(f.1)(8) forfeiture from a suspension that can be sought under Section 413. After all, the Court stated in Stuart Painting v. W.C.A.B. (Asvestas) 611 A.2d 787 (Pa. Commw. 1992) that the relief under Section 306(f.1)(8) is a suspension rather than a forfeiture.

Saturday, June 07, 2003

Rating Lowered for Princeton Insurance

Insurance Journal reported Standard and Poor's lowered Princeton's rating to Bpi and the New Jersey Department of Banking and Insurance is considering placing Princeton under supervision. Article

Thursday, June 05, 2003

OSHA Draft Ergonomic Guidelines for Poultry Processing

OSHA issued Draft Ergonomic Guidelines for Poultry Procesing, the third set of industry-specific guidelines. Article

Annals of Internal Medicine Compares Treatments for Low Back Pain

The Annals of Internal Medicine published a study indicating spinal manipulation therapy was no more or less effective than other therapies in the management of low back pain. Article

Case Emphasizes the Importance of Coordinating Workers' Comp and Personnel Administration

Dept. of Corrections v. WCAB (Clark) is a case in which the collective bargaining agreement required the Claimant to pay back WC benefits when he had used sick time. The case was settled with a Compromise and Release providing that the Claimant would collect about $2,000.00. When the personnel office recovered the amount from the Claimant's pay, the WCJ rather perfunctorily directed payment of the C&R amount with no credit pursuant to the CBA. The WCJ also granted the Claimant's request for 50% penalties and attorney's fees for unreasonable contest. The Compromise and Release Agreement did not reflect that the Claimant was required to reimburse the Employer, and apparently it did not come up at the hearing. The Board and the Court affirmed.

Credibility Determination Paramount in Disposition of URO

In R. Jackson v. WCAB (Boeing) the treating chiropractor's care was found not reasonable and necessary. The Court held: 1) the WCJ did not shift the burden of proof to the Claimant when the WCJ noted the treating chiropractor failed to respond to the reviewer's points; 2) the fact that the treating chiropractor offered treatment to alleviate pain did not overcome the WCJ's finding that the reviewer was more credible; and 3) even though the UR was requested late, e.g. more than thirty days after the billing was submitted, the request for prospective review was timely.

Study Suggests Prompt MRI Leads to Unnecessary Surgery

A study of oucomes of prompt administration of plain x-ray vs. MRI determined that people who had the MRI did not necessarily have better outcomes of treatment. There was a correlation between the MRI and surgery, and the study suggested the MRI pathology may not have correlated with the patient's symptoms, yet surgery was still performed on the MRI findings.