Monday, July 28, 2003

Newsroom Page Up For Kid's Chance of PA

The Newsroom page at the web site for Kids' Chance of PA is up with an article about a PSBA Insurance Trust scholarship administered by Kid's Chance and a .pdf of the April-May 2003 Kids' Chance Report newsletter.

Friday, July 25, 2003

No Suspension for Refusal of Medical Care that Offers a 50% Chance of Success

Alltel, Inc. v. WCAB (Baum) is a refusal of reasonable medical care case. The proposed surgery had an 80% chance of improving the Claimant's radicular pain, but only a 50% chance of resolving the Claimant's neck pain and headaches. The Commonwealth Court observed this translates into a 50% chance that the Claimant will return to work. The Court held as a matter of law that 50% does not represent a "high probability" of success. The Court affirmed the WCJ's denial of the Employer's suspension petition, which the Board had also affirmed.

The Supreme Court in Daniels Holds That A WCJ Decision Must Provide Enough for Wintermeyer Analysis

Daniels v. WCAB (Tristate Transport) is the long awaited case from the Pennsylvania Supreme Court regarding the reasoned decision requirement of Section 422(a) of the Act. The result is: "... we hold that a decision is "reasoned" for purposes of Section 422(a) if it allows for adequate review by the WCAB without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. A reasoned decision is no more, and no less."

Cut back to Leon E. Wintermeyer, Inc. and American General Group v. WCAB (Marlowe). Wintermeyer held: "capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." I posted on December 12, 2002: "Perhaps foreshadowing Daniels, the Supreme Court did note ... 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..."

Turning to the WCJ's Decision in Daniels, the Supreme Court observed: "Although we can imagine reasons why the WCJ might have been more convinced by Dr. Williams' opinions, there are arguments to be made in favor of Dr. Fabian's opinions as well; more importantly, the reasons we might identify are not necessarily those which were in the mind of the WCJ upon rendering her decision." (emphasis added)

The Supreme Court remanded for only an explanation of the credibility determination favoring Dr. Williams over Dr. Fabian. The finding rejecting the Claimant's credibility without further explanation was accorded deference because the WCJ can make this finding solely on the demeanor of a witness who testifies live. Also, the relevance of the testimony was the Claimant's limitations based on his pain, something that another witness could not entirely rebut.

On remand, the Supreme Court will be looking for the WCJ to identify the factors the WCJ will have considered to make the ultimate credibility determination. The Supreme Court wants to know, as indicated in Wintermeyer, whether the WCJ's "conclusions are based on capricious disregard of other evidence." In the case where this is "clear beyond doubt," an appellate court may engage in judicial review.

Minority Tolling Statute Does Not Apply in Workers' Compensation Claims

In East v. WCAB (USX Corp.), Appeal of: USX, LLC the issue is whether a workers' compensation case is a "civil action" so that the minority tolling statute applies. The WCJ ruled that the stautue does not apply; the Commonwealth Court reversed based on the observation that if an action is not a criminal action, it is a civil action. The Supreme Court reviewed the Pennsylvania Constitution's provision for workers' compensation laws and noted the administrative action under these laws was created to replace a civil action. The Supreme Court also looked at several statutes that distinguish an administrative action from a civil action. The Supreme Court concluded the minority tolling statute's coverage of "civil actions" does not include workers' compensation matters.

Friday, July 18, 2003

Mutual Aid Agreement Places Workers' Compensation Liability on Volunteer Fire Policeman's Home Company

In North Lebanon Township v. WCAB (Harbaugh) a volunteer fire policeman responded to a call in a neighboring municipality when the call came in to his friend, who worked as a volunteer for both municipalities' volunteer fire companies. The Claimant suffered a fatal heart attack in the line of duty. Based on the Mutual Aid Agreement that provides companies are to render aid when needed, the WCJ found the Claimant remained an employee of his home company and the home municipality was responsible for benefits. The Commonwealth Court affirmed.

Commonwealth Court Clarifies Caso

M. Wheeler v. WCAB (Reading Hospital, et al.) is a case where the Claimant did not object to either the vocational interview or the vocational expert's testimony. The WCJ credited the testimony demonstrating the Claimant's earning power, but dismissed the Employer's petition because the vocational expert was not approved by the Department. Based on the Claimant's wavier of this issue, the Board ordered modification of benefits. The Commonwealth Court affirmed.

Buried in all the waiver discussion, however, are the answers to some of the questions Caso raised. Is a vocational interview mandatory to assess a Claimant's earning power under Section 306(b)(2) of the Act? No. Must a vocational expert be approved by the Department to render competent testimony to establish a Claimant's earning power under Section 306(b)(2)? No.

Caso stands for the proposition that a Claimant cannot be compelled to attend an interview with an expert who is not approved by the Department. However, to determine that the right of a Claimant to not be evaluated by an unapproved expert could be waived, the Court concluded: "...a vocational interview by an expert approved by the Department is optional, not mandatory, to assess the claimant's earning power." This conclusion was necessary to the result because it follows that the Claimant could have refused the evaluation, and instead he attended and waived his objection to the expert's lack of qualifications.

Accordingly, when Section 306(b)(2) says the Employer may require the Claimant to submit to an interview by a vocational expert approved by the department, Wheeler now says the Claimant can refuse, whereupon the Employer must file a Petition to Compel a Vocational Interview. On this petition, the WCJ must apply Caso which holds the vocational expert must be approved by the Department, and the WCJ may apply the Supersedeas Order in Struble (Tues Jun 17 post), which holds the Department has not yet come up with a suitable approval procedure.

But, the Employer can skip this step. Since the vocational interview is optional, and since Section 306(b)(2) provides that the Claimant's earning power is to be determined based upon expert opinion evidence -- without an indication that the expert has to be approved by the Department -- the Court held: "Under Section 306(b)(2), therefore, the Department's approval of the vocational expert is not a prerequisite to competency of his or her earning capacity assessment." The Employer therefore can offer a vocational witness as an expert without approval by the Department, and even without compliance with 34 Pa. Code Section 123.202. As with a medical witness, the WCJ decides the competency of the witness to testify.

The WCJ can then decide credibility. Although the Employer is at a disadvantage when the Employer vocational expert tries to persuade the WCJ with opinions based on only the facts gleaned from the Claimant's job application to the Employer (assuming the Employer can use this information for this purpose) and the Claimant's vocational expert bases his or her opinions on facts from an interview, Wheeler confirms the WCJ can decide this case on the merits.

In cases with a fact pattern like Wheeler where the Claimant has waived the Caso protection by attending the interview, the Commonwealth Court indicated the vocational expert's testimony is entirely competent. Therefore, to the extent that similar cases are pending, including at various stages of appeal, these cases also can now proceed on the merits.

Helen Mining Case Applies To Reimbursement of Lost Time to Travel For Medical Treatment

In R. Berrian v. WCAB (PA State Police) the credibility determinations of the WCJ were upheld in every respect, but in analyzing the Claimant's request for 96 hours of lost time to attend long distance medical treatment, the Commonwealth Court stated Helen Mining v. W.C.A.B. (Tantlinger) 616 A.2d 759 (Pa. Cmwlth. 1992) applies to this determination. Unfortunately, the Claimant testified she went for long distance treatment because of her longstanding relationship with the doctor and her preference to treat with him. The Court stated this was "precisely the type of personal preference for treatment that Helen Mining explains is not reimbursable." (bold and italics in original)

Wednesday, July 16, 2003

Judgebooks - Local Rules of Practice and Procedure on the Web

Now that mine is up, I can note the Judgebooks containing local rules of practice and procedure before each Workers' Compensation Judge are available at the Bureau of Workers' Compensation's Quick Links site. All of the individual entries I have reviewed give clear and concise answers to twenty-four questions covering from the first hearing to the content of briefs.
The on-line format allows for easy reference, and hard copies can be printed from portable document format (.pdf). You could even download Adobe Reader for Palm OS and put Judgebooks on your Palm compatible device.

Pre-OSHA Regulations Audiogram That Does Not Comply Is Invalid

In Wheeling-Pittsburgh Steel Corp. v. WCAB (Sesco) the Employer explored several arguments regarding a hearing loss claim. The claim was awarded for the Claimant's whole 35.6% binaural hearing loss. The Employer argued the loss was diminished by I) the pre-employment audiogram in 1971; II) the hearing loss accumulated by the Claimant when he was working in Ohio and not subject to extraterritorial jurisdiction; III) the audiogram administered when the Claimant was transferred to a new facility in 1998; and IV) the Employer advanced a statute of limitations argument because the Claimant presently works half the time in the office and half the time in the plant.

With regard to the 1971 audiogram (which showed a 17.8% loss), the Commonwealth Court recognized OSHA regulations that the audiogram had to meet had not yet been published. The audiogram did not comply with later regulations because the Claimant testified he was exposed to occupational noise the day the test was administered. The Court held Section 306(c)(8)(iv) requires audiometric testing to conform to OSHA standards. In a footnote the Court mentioned the Employer's expert did not testify that the testing met OSHA standards at the time.

The Court dismissed the argument about the Ohio employment by noting the Claimant was employed in Pennsylvania on the date of injury as defined in Section 306(c)(8)(ix).

When the Claimant was transferred back from Ohio, he had a 1998 pre-employment audiogram. However, the Claimant testified he retained his seniority with the employer, therefore he was not a new employee and Section 306(c)(8)(vi) does not apply.

The Employer's statute of limitation defense failed because of the inclusion of the Ohio employment.

In a fifth section (designated IV by the Court) the Court found a reasonable contest on the 1971 audiogram issue and declined to award counsel fees.

Tuesday, July 15, 2003

Workers' Compensation Insurance - Not Quite There Yet

Where are we now in the insurance cycle? see the report on "Workers' Compensation Insurance - Not Quite There Yet" from Business Wire or the complete report. It looks like a free? registration is required for the complete report.

Benefits and Employer Costs Grow Faster than Wages for the First Time Since 1992-1993

A National Academy of Social Insurance survey found workers' compensation benefits and employer costs in 2001 grew faster than wages for the first time since 1992-1993. The result is attributable to the combination of the slowdown in the economy and insurers' rising premiums on the ten year insurance cycle. However, benefits grew slower than wages in Pennsylvania. The Pennsylvania comparison between benefits and costs may be in the complete report. Executive Summary

Thursday, July 10, 2003

SWMS Case Awarded, But In A Very Narrow Ruling

In G. Zink v. WCAB (Graphic Packaging, Inc.) The Claimant had suffered injuries to his legs, right arm and back in the Vietnam War. He was further diagnosed in 1974 with anxiety neurosis, chronic with depressive features, related to his war experience. This condition rendered him unable to sleep during the night. Through the Vietnam Veterans' Readjustment Assistance Act of 1974 the Claimant got a job as a maintenance mechanic and until the May, 1995 Collective Bargaining Agreement, he was permitted to switch shifts with others so he always worked third shift. When the Claimant could no longer switch shifts, he developed shift work maladaptation syndrome (swms), which unfortunately was a subjective reaction to normal working conditions Metropolitan Edison Co. v. W.C.A.B. 553 Pa. 177, 718 A.2d 759 (1998).

While the claim was pending, the Employer ultimately exempted the Claimant's maintenance department from the shift requirement without objection from the union. By January 1997 the Claimant could return to work due to a stabilization of his condition.

The Commonwealth Court en banc held the case could be distinguished from Metropolitan Edison because the Claimant's pre-existing condition was known to the Employer, as the Claimant got the job under the Vietnam Veterans' Readjustment Assistance Act of 1974. Under these circumstances, abnormal working conditions existed in the opinion of the Court. Judge Leavitt dissented, declining to depart from the premise that "normal working conditions, such as requiring an employee to work an eight hour shift, do not constitute an injury under the Act." Metropolitan Edison 187, 718 A.2d at 764.

Payment of Heart and Lung Benefits Estops City From Denying WC, Section 413 Review Not Addressed

In The City of Nanticoke, et al. v. WCAB (Ziolkowski) a fireman requested Heart and Lung Act benefits for coronary artery disease via a grievance. The City did an internal review and granted the benefits, and terminated the Claimant's employment based on his total disability. The WCJ, the Board and the Commonwealth Court agreed that the Employer was estopped from denying the Claimant's workers' compensation claim even though an interim investigation by the Employer revealed there was no medical evidence supporting the award of Heart and Lung benefits.

The Employer's argument on appeal was that collateral estoppel did not apply because there was no "actual litigation". The Court said the City's internal review was litigation, and in any event the City had fifteen (15) months to investigate. The Court however found a reasonable contest on the issue of "whether or not Claimant's receipt of Heart and Lung Benefits alone with no formal award, would be enough to collaterally estop Employer from re-litigating the issue of causation."

There was no discussion of Gunter, the Supreme Court case that said even when the Employer grants benefits that are congruent, it still may contest liability under the provisions of Section 413 of the Act. In Gunter, as in this case, it was the Employer's argument that the initial award of benefits was erroneous.

Tuesday, July 08, 2003

S&A Benefits Are Included in Average Weekly Wage Calculation

T. Shire, Jr. v. WCAB (General Motors) is a case in which the Claimant received sickness and accident benefits for a non work-related condition in the year before the work injury. The WCJ excluded the S&A benefits from the Average Weekly Wage calculation and the Board affirmed, reasoning that S&A benefits are a fringe benefit like pension contributions or payment for life insurance. The Commonwealth Court reversed, and found the S&A benefits are includable in the AWW in the same manner as vacation pay or bonuses.

The Court then remanded for the WCJ to include "sickness and accident benefits for days missed from work" in the AWW calculation. The Court did not state the S&A amount should be included in the quarter in which it was paid, as opposed to the statutory treatment of vacation pay or bonuses, which is to divide the amount by 52 and add the result to the AWW calculated without the bonus amount. The Court did, however, cite Colpetzer for the premise that the intent of Section 309 of the Act is to establish an average weekly wage that reasonably reflects the reality of the Claimant's pre-injury earning experience as a predictor of future earning potential.

Tuesday, July 01, 2003

Statute Still Tolled By Payment Of Medical Even Though Claim Necessary To Expand Description Of Injury

In Westinghouse Electric Corporation/CBS v. WCAB (Korach) the Employer continued to pay the Claimant's psychiatric expenses after commutation although the accepted injury was a back sprain. When the Employer stopped paying, the Claimant was out of the statute. The WCJ accepted the Claimant's evidence that the psychiatric condition arose out of the work injury, and found that the statute was tolled by the payment of medical. The Board affirmed. The Court also affirmed, although they did so by pulling out the Reinstatement of Contracts and finding it was the parties' intent in the commutation to continue to cover psychiatric expenses.

In the last two published cases, the Court has held the parties have a right to contract with respect to workers' compensation benefits. Parties should remember, however, that they cannot contract to reduce the Claimant's rights or to impose responsibilities on the Claimant that the Act does not authorize. see "Issues Arising Under Compromise and Release Practice" July PBA Workers' Compensation Section Newsletter, Page 10, by Judge David B. Torrey.