Saturday, August 30, 2003

Commonwealth Court Adheres Strictly To The Pleadings Where Equities Fall In Favor Of Claimant

In Lynette Anderson v. W.C.A.B. (Pennsylvania Hospital) the Claimant burned her hand and a Notice of Compensation Payable was issued for "right medial epicondylitis and right carpal tunnel syndrome". The Employer first filed a Termination/Modification/Suspension Petition alleging full recovery and job availability. The Claimant filed a Review Petition seeking review of the description of injury to include left carpal tunnel syndrome.

The Claimant's medical evidence (which the WCJ would accept) stated the Claimant suffers from bilateral carpal tunnel syndrome and right medial epicondylitis related to repetitive duties at work. The Employer, in response, filed a Review Petition, which, according to the Opinion, alleged only that the right epicondylitis was mistakenly listed on the NCP. Furthermore, according to the Opinion, the Employer's Claims Representative testified only the epicondylitis was mistakenly listed on the NCP.

The Commonwealth Court dismissed the Claimant's Review Petition because the left carpal tunnel was not from the burn injury. The Employer's Termination/Suspension/Modification was dismissed because Claimant's physician testified the Claimant's right carpal tunnel persisted and prevented her from doing the jobs. The Commonwealth Court granted the Employer's Review as to right medial epicondylitis based on the Claims Representative testimony and the fact that the condition was not related to the burn. However, the Court said the Employer didn't petition to review the description of right carpal tunnel, and therefore this stays on the NCP.

The Employer presumably will petition to review the right carpal tunnel condition. While the Court said it would be unfair for the Employer to carry the description of right carpal tunnel syndrome on the NCP until the statute expired then turn around and remove it under Section 413(a), the Court stated no reason it would not have done so, on Claimant's medical alone, had the Employer put it in the Review Petition.

Clearly, the equities fell in favor of the Claimant, who actually had the right carpal tunnel injury that was mistakenly put on the NCP for the burn injury. To perpetuate this result, however, the Court ultimately will have to create another equitable limitation to the WCJ's power under Section 413(a) to review an NCP or Agreement " any time..."

Thursday, August 28, 2003

Supreme Court Will Not Review admissibility Of Medical Reports Issue

The Supreme Court denied allowance of appeal in Weaver, Pet v. WCAB (State of the Art, Inc.) The Commonwealth Court's opinion: W. Weaver v. WCAB (State of the Art, Inc.) defines the distinction between a "short-term" benefit claim and a "long-term" benefit claim and this distinction's effect on the submission of a case on reports under Section 422.

All Cases of Occupational Disease Under the Workers' Compensation Act Get the Section 301(e) Presumption

In J. McMullen v. WCAB (City of Philadelphia) a city firefighter alleged asbestosis. The Commonwealth Court, who apparently knows what the meaning of "is" is, held where the Claimant testified his firehouse underwent asbestos removal, the rebuttable presumption of Section 301(e) of the Act applies.

Section 301(e) provides: If it is shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.

The Commonwealth Court's ruling highlights that the section does not say the disease has to be a particular or usual or common hazard, just a hazard. Accordingly, any testimony of the possibility of exposure raises the presumption, and the Employer has to rebut it.

Wednesday, August 27, 2003

Device Stretches the Transverse Carpal Ligament to Avoid Carpal Tunnel Surgery

A product called MDCtrack(TM) treats mild, moderate and severe forms of carpal tunnel syndrome by applying pneumatic traction to stretch the ligament that surrounds the Median Nerve.

Edit: Thanks to Dan Neufeld, SVP, MeDevice for a link to the company's site and August 27, 2003 press release.

Statute Of Limitations Is Tolled By Employer-Paid Treatment When Employer Has Notice Of Work Injury

In Harley Davidson, Inc. v. WCAB (Emig, Jr.) the Claimant had a 1993 injury and obtained medical treatment paid for by either the Employer's workers' compensation carrier or the Employer itself (the company physician) through 1998. The WCJ found there were no three-year periods between the payment of medical expenses. Furthermore, the Employer had notice of the 1993 injury. Accordingly, when the Claimant filed a claim petition on May 24, 2000 alleging the 1993 injury, the petition was timely. Because the Employer had notice of the 1993 injury, the cost of treatment is considered payment in lieu of compensation that tolls the statute of limitations.

Note: This ruling would not extend to cases where health insurance provided by the employer pays for the treatment because of the specific prohibition thereof in Section 315.

Post-Injury Job Offer Must Be Consistent With The Claimant's Prior Capabilities Of Transportation, Child Care, Etc.

In South Hills Movers v. WCAB (Porter) the Claimant was a mover/packer who did out of town work and was often away for two weeks to a month at a time. After his injury, he was offered a full time light duty job in the Employer's warehouse. The warehouse was 46 miles from the Claimant's residence and his driver's license was suspended. Furthermore, the Claimant's wife was unable to drive him to work as she had in the past due to her health. The WCJ found the job not actually available and the Board affirmed. The Commonwealth Court also affirmed. The Court held if an offered post-injury job imposes obligations different from those of the claimant's pre-injury employment, the employer must produce evidence that the new responsibilities are within the claimant's capabilities.

Look Back Period For Long Term Exposure to Occupational Noise is Three Years From the Earlier of the Last Date of Exposure or the Date of Filing

CBS/Westinghouse et al. v. WCAB (Fontana) is a hearing loss claim. The Employer argued that where the Claimant did not work from March 14, 1994 to February 10, 1996, returned to work until February 28, 1996 and retired, then filed his Claim Petition on February 23, 1999, the three year statute of limitations barred the claim for hearing loss. The Commonwealth Court pointed out that the date of injury is the earlier of the date of filing or the last date of exposure, so the three year look back extends to February 28, 1993 and the Claimant's employment between February 28, 1993 and March 13, 1994 gave him long-term exposure to hazardous occupational noise.

Tuesday, August 26, 2003

WCJ May Accept After-Generated Evidence and Change Credibility Determination Upon Cudo Remand

In Ranbar Technology, Inc. v. WCAB (Riley) the WCJ initially denied the Claimant's petition alleging an organic brain syndrome and depression as a result of exposure to chemicals while working for the Employer. The WCJ drew a negative inference from the Claimant's failure to offer a hospital admission record. The Board entered a Cudo remand directing the WCJ to accept the missing record and any necessary medical testimony in support therof. The WCJ accepted records from the Veteran's Administration, EMT and hospital, some of which were generated after the WCJ circulated the initial decision. The WCJ then granted the Claimant's petition. The Commonwealth Court held this was all consistent with Cudo.

Supreme Court to Consider Calculation of AWW When Second Injury Occurs Within a Year

The Supreme Court granted the Employer's Petition for Allowance of Appeal in Zerby v. WCAB (Reading Anthracite Company) and consolidated it with Colpetzer v. WCAB (Standard Steel). These cases involve the calculation of the AWW when the Claimant sustains a work injury, but was on disability for a prior work injury during the prior year. In such a case, the Employer wants to argue that Section 309(d.1) can't be used for the AWW calculation because the Claimant remained "employed", citing Norton v. WCAB (Norton). In the Section 309(d) calculation, the Employer argues workers' compensation benefits from the prior injury can't be included because they are not "wages."

In Zerby and Colpetzer, The Commonwealth Court applied Section 309(d) but held equity requires that the prior AWW be plugged in during disability weeks.

The Commonwealth Court dissent in Zerby pointed out Mr. Norton was capable of performing work for valuable consideration, and one can not be in an employment relationship if one is incapable of performing services for valuable consideration. Therefore, the dissent would hold 309(d.1) was applicable all along, and Zerby and Colpetzer (and Merkle v. WCAB (Hofmann Industries)) were all wrongly decided.

Monday, August 25, 2003

Two Articles on Cervical Disc Replacement Surgery

A cervical and lumbar disk replacement device is in FDA trials, and there are several articles about the use of the device. One article focuses more on the FDA trial. Another describes a successful procedure.

CT Scans of Chronic Low Back Pain Patients Show Less Density of Paraspinal Muscles

A study from Norway published in the Journal Spine and reported in Doctor's Guide found the cross-sectional area and density of paraspinal muscles can be measured by computed tomography (CT) and magnetic resonance imaging (MRI) and are therefore important diagnostic tools for the evaluation of chronic back pain. In the study, two independent CT scans were done on patients with chronic low back pain on the same day and within 2 weeks. No significant differences were observed between the first and second CT scans on the same day or on different days by different radiologists.

Tuesday, August 19, 2003

Supreme Court Will Consider Whether Sexual Harassment Can Be Abnormal Working Condition

In a Per Curiam Order dated July 1, 2003 the Supreme Court granted a Petition for Allowance of Appeal in Heath v. WCAB (Pennsylvania Board of Probation and Parole). In this case, the Commonwealth Court held, inter alia, that when a co-employee sexually harasses an employee, any resulting mental injury is not compensable under the Act. The Court stated Section 301(c)(1) operates to remove any claim for that injury from the purview of the Workers' Compensation Act because it is personal and not work related.