Commonwealth Court Reviews Several Issues of Competency of Utilization Reviews

In M. Haynes v. WCAB (City of Chester) The Claimant took his doctor's testimony in support of physical therapy his doctor prescribed. In opposition, the Employer presented the Utilization Reviewer, a physical therapist. The WCJ also requested a Peer Review and the Bureau assigned a physical therapist. The WCJ credited the physical therapists. The Commonwealth Court rejected the Claimant's argument that the physical therapists' opinions were not competent. The Bureau procedure provides for appointing physical therapists to review physical therapy, and there could be no issue of causal connection to the work injury, an issue that would require competent medical testimony.

The Claimant in Haynes also did not prevail on his argument that the physical therapy he received provided palliative care, because the physical therapists reasoned it was not reasonable and necessary on the basis that it was repetitive, did not require skilled care, and incomplete.

In C. Havenstrite v. WCAB (Tobyhanna State Park), The Commonwealth Court en banc held the provider does not need to be consulted when his notes are characterized by the reviewer as "sketchy". The Court held this goes to the weight to be given to the reviewer's opinions.

The dissent noted the requirement of 34 Pa. Code Section 127.469 that states the reviewer shall initiate discussion with the provider when such a discussion will assist the reviewer in reaching a determination. The dissent would have combined this with the requirement that the issue be resolved in the favor of the provider if the reviewer is unable to determine whether the treatment is reasonable and necessary to hold the reviewer's opinions were incompetent.

Issue in Gibson v. WCAB (Armco Stainless & Alloy Products) is the Standard of Proof of Asbestos Exposure

I was provided the .pdf of Gibson v. WCAB (Armco Stainless & Alloy Products), the unreported decision of the Commonwealth Court on which the Supreme Court granted the Employer's Petition for Allowance of Appeal and granted supersedeas.

In the case, the WCJ granted a fatal asbestosis claim, but the Board reversed, finding there was not substantial, competent evidence to support the finding that the Claimant was exposed to asbestos.

The evidence of exposure was a co-worker's testimony that he saw a dark grey, heavy-cotton type material that he believed was asbestos on pipes running in and out of the furnace. The witness indicated the stuff fell off, created dust, and the Claimant would have to sweep up the material as part of his job. The witness finally testified that one facility where he worked with the Claimant was shut down for several years, and it appeared new walls were installed and asbestos material was removed from the walls. The witness admitted, however, that he had no training in identifying asbestos and he could not state with certainty that what he saw was asbestos.

The Commonwealth Court en banc reversed the Board and found that the WCJ properly relied on the testimony of the lay witness under the clear Commonwealth Court precedent regarding the non-technical nature of a Claimant's burden of proof in establishing asbestos exposure. The Court cited Witco-Kendall Co. v. WCAB (Adams), 562 A.2d 397 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 652, 581 A.2d 577 (1990) which held, inter alia, that the Claimant's failure to identify the dust to which he was exposed was not fatal to his petition.

The Court did not mention McMullen v. WCAB (City of Philadelphia) which extended this principle to the extent that where the Claimant testified his firehouse underwent asbestos removal, the rebuttable presumption of Section 301(e) arose.

The Dissent in Gibson would have affirmed the Board because the co-employee's testimony was equivocal. Interestingly the dissent distinguished Witco-Kendall on the basis that the Employer in that case did not contest asbestos exposure. This is consistent with application of McMullen which would always establish in the record whether the Employer contests exposure, and if so, what its evidence is to rebut the Claimant's exposure case.

Thanks to Brian S. Frantum, Esquire
Holsten & Associates
Media, PA

Claim Petition Available Online

The Claim Petition for Workers' Compensation Benefits is now available to complete and file online at the Bureau of Workers' Compensation's Quick Links Site.

Status of OSHA Regualtion of Repetitive Stress Injuries

An article in the Washington Post details the debate about reporting of repetitive stress injuries. The OSHA rule requiring reporting passed by the Clinton Administration was reversed by the Bush Administration.

Petition for Allowance of Appeal Granted with Grant of Supersedeas, But The Unreported Commonwealth Court Opinion Posting Has Expired

The Supreme Court granted a Petition for Alllowance of Appeal and granted supersedeas in Gibson v. WCAB (Armco Stainless & Alloy Products), Petition of: Armco Stainless, et al. Apparently the underlying case was unreported and its posting expired after 90 days. If anyone knows the issue and/or can provide a copy of the unreported decision, email me.

SWIF Unsuccessful In Voiding Policy On Allegation Of Employer Misrepresentation

In SWIF v. WCAB (Hering, et al.) the Claimant was found by the WCJ to be an employee of the Employer while working as a parcel delivery person. Upon SWIF's review of the policy, they found the Employer was charged a premium based on a nominal estimated payroll of $1,000.00 for parcel delivery persons, category 808, and SWIF resisted the claim arguing SWIF relied on an Employer representation to its detriment, therefore voiding the policy.

The evidence revealed there is a system of checks and balances through The Pennsylvania Compensation Rating Bureau and the Insurance Department that prevent a category being taken off the policy without reason. In this case, the procedure had been complied with. Based on information including the Employer's computerized payroll printouts, SWIF had received permission to leave category 808 off. SWIF nevertheless issued the policy with this category and assumed the risk of this claim.

Workers' Compensation Carrier Can Take Subrogation Against UIM Award From the Employer's Policy Under Act 44.

In C. Schwaab v. WCAB (Schmidt Baking Co., Inc.) the Commonwealth Court rejected the Claimant's arguments attempting to collect both workers' compensation benefits and uninsured motorist benefits under the employer's policy for his work-related automobile accident. The Court stated the Claimant has no defense to the workers' compensation carrier taking subrogation against the UIM award under Act 44.

Supreme Court May Rule on Unbundling Attorney's Fees

The Supreme Court granted the Claimant's appeal in Vitac Corporation, Pet v. WCAB (Rozanc) and denied the Employer's appeal. This would suggest the Supreme Court is interested in the unbundling of attorney's fees that the WCJ denied, the Board allowed, and the Commonwealth Court denied stating Section 440(a) only allows as costs attorney’s fees, witness costs, necessary medical examination costs, and the value of unreimbursed lost time to attend the proceedings.

The costs at issue in the case were paralegal and law clerk fees. Other sometimes unbundled costs of doing buisness include: in-office photocopying, overnight delivery, Westlaw/Lexis, telephone, fax etc.

No Penalty When Question of law or Fact Remains Unresolved.

Alex Hostina, Dec., Claimant, et al. v. WCAB (Allied Signal, Inc., et al.) includes a very complex factual pattern, but a simple result. No penalty is payable where a question of law or fact remains unresolved.

The Comprehensive NeuroMuscular Profiler (TM)

The company Medical Technologies Limited anticipates FDA approval of a product called The Comprehensive NeuroMuscular Profiler that assesses the functional impairment of soft tissue injuries by providing objective data to correlate with subjectively limited ranges of motion. Article from claimsportal.com. Miami Herald Article

In Second Specific Loss to the Same Extremity, a Credit is Given for Prior Specific Loss

In J. Schemmer v. WCAB (US Steel) the Commonwealth Court affirmed the WCJ and Board's grant of the Employer's Petition to Modify to a specific loss. The Court also restated the principle that when the Claimant has lost a body part in a prior injury, the compensation for that part can be credited from a loss further up the extremity. In the case, the Claimant lost his lower leg in a motorcycle accident, then lost an additional portion of the leg in the work injury.

Claimant Can Not Be Awarded Penalties After C&R

In Dr. Lincow v. WCAB (Prudential Securities, Inc.) the WCJ found the doctor's treatment unreasonable and unnecessary but on appeal to the Board, the WCJ's decision was reversed. The Board ruled despite the fact they were on notice that the case was C&R'd. The Doctor filed a Penalty Petition due to non-payment. On appeal from the Board, the Court reinstated the WCJ's ruling.

The WCJ denied the Penalty Petition finding the provider's claim was moot. The Court affirmed on this basis and on the basis that since the claim was C&R'd no penalties could be awarded because they are payable to the Claimant. The Court stated there was no standing because the Claimant had released the Employer from all liability under the Act.

This reasoning would suggest that a Claimant who alleges a violation of the Act in the administration of the C&R agreement does not have standing to file a Penalties Petition.

Commonwealth Court Abolishes Common Law Marriage

PNC Bank Corporation v. WCAB (Stamos) is a fatal case where the spouse proved the existence of a common law marriage before the WCJ. The Commonwealth Court engaged in a lengthy discussion of the background of the doctrine of common law marriage. The Court sated the Supreme Court has questioned the viability of the doctrine, allowing the Commonwealth Court to abolish the doctrine. The Court said the doctrine is not necessary where access to a marriage license and magistrate is not limited like it was in the frontier days. The Court finally stated its abolition of the doctrine is prospective in application.

Medical Developments In Low Back Pain

Medical news from the last week:

Call it decompression or call it the rack, these articles say it works.

Perhaps you prefer something more cerebral.

But watch out for the opposite of healthy cognitive therapy.