Tuesday, December 28, 2004

The Maximum Workers' Compensation Rate for 2005 is $716

Secretary of Labor and Industry Stephen Schmerin announced the 2005 maximum rates for workers' compensation and unemployment compensation in a press release today.

New Life Tables Published

Life tables for the year 2002 were published recently and are available. United States Life Tables, 2002 .pdf The most updated life table yields the most advantageous Sciarotta calculation.

There is a link on the left side of the page to annual life table updates from the National Center on Health Statistics.

The suggested citation is: Arias E. United States life tables, 2002. National vital statistics reports; vol 53 no 6. Hyattsville, Maryland: National Center for Health Statistics. 2004.

Wednesday, December 22, 2004

Commonwealth Court Outlines Burden of Proof in §306(b)(1) Modification Based on Current Wages of Fellow Employee

In a very well organized opinion in Verizon Pennsylvania, Inc. v. WCAB (Baun), the Commonwealth Court provided guidance on the modification of benefits under §306(b)(1) which provides an employe shall not receive more in compensation and wages combined than the current wages of a fellow employe in employment similar to that in which the injured employe was engaged at the time of injury. Although the Court held the Employer did not meet its threshold burden to demonstrate what similarly situated employees were making at the time of injury, the Court went on to clarify its interpretation of the remainder of any §306(b)(1) analysis.

The Court held the threshold burden is to establish the wages at the time of injury of the class of similarly situated employees. The Court stated a WCJ may elect to evaluate the wages of each employee in the class or rely on an average or median, as the WCJ's discretion directs.

The court further stated Maier's Bakery v. Workers' Comp. Appeal Bd. (Sandt), 751 A.2d 1208 (Pa. Cmwlth. 2000) does not require that the Employer must show economic distress caused wages to be reduced. The Court explained there is no such requirement in the statute.

Finally, the Court stated the only comparison to be made by the WCJ is whether the Claimant is currently receiving more in wages and compensation combined than the class of similarly situated employees. The Claimant had returned to work at modified duty, and there would be a figure that represents the Claimant's wages and compensation combined. Even if, as here, some employees in the class were currently making more than the Claimant's Average Weekly Wage, this fact does not necessarily enter into the comparison to be made between what the Claimant receives and the representative current wages of the class that the WCJ determines.

Tuesday, December 21, 2004

Commonwealth Court Holds Physical/Physical Injury Standard Can Still Apply to a Heart Attack Case

In J. Curren v. WCAB (City of Chester) the Commonwealth Court reversed an Order of the Workers' Compensation Appeal Board that held a mental stress causing physical injury standard of proof applies in a heart attack case. The Court accepted the Claimant's argument that compensation was awarded on a physical stress causing physical injury basis. The Court held the medical testimony credited by the Workers' Compensation Judge provided substantial evidence to support a physical stress causing physical injury standard of proof. Accordingly, the Claimant did not have to meet the heightened burden in a mental/physical case to show abnormal working conditions.

Monday, December 20, 2004

AFL-CIO Press Release Notes Proposed Reduction in W.C. Rates

Pennsylvania AFL-CIO President William M. George issued a press release in response to news of a proposed rate decrease from the Pennsylvania Compensation Rating Bureau. The press release highlights positive trends in job safety.

York Daily Record Series on Workers' Compensation

The York Daily Record is running a series on workers' compensation. Four articles have been printed to date. They are linked at the bottom of this article from today.

The articles begin with a discusssion of a specific case, then broaden into a discussion of Pennsylvania's statutory system and proposed changes of injured workers, their families, employers and insurers.

Sunday, December 12, 2004

WCRI to give Pennsylvania Briefing on January 19, 2005

The Workers' Compensation Research Institute will brief the newest results from the 5th Edition of the WCRI CompScope™ multistate benchmarks study, comparing workers' compensation system performance for Pennsylvania with 11 major states (California, Connecticut, Florida, Illinois, Indiana, Louisiana, Massachusetts, North Carolina, Tennessee, Texas and Wisconsin) in Harrisburg on January 19, 2005.

Saturday, December 11, 2004

Commonwealth Court Confirms Claimant Does Not Waive Timeliness Argument By Attending IRE

In Wellington Foods v. WCAB (Rice), the Claimant attended an IRE requested more than 60 days after payment of 104 weeks of total disability benefits. The Commonwealth Court rejected the Employer's argument the Claimant waived his objection to the timeliness of the IRE by attending the IRE.

Wednesday, December 08, 2004

Claimants Can Get a Print Out of Unemployment Compensation Paid On-Line

Claimants who receive unemployment compensation benefits receive a PIN number that allows them to access all their benefit information on-line. A Claimant can get a print out of unemployment compensation paid to establish the unemployment compensation credit against workers' compensation benefits. The URL is: https://www.pauc.state.pa.us/welcomebenefit.asp

Tuesday, December 07, 2004

Commonwealth Court Confirms 104 Weeks for IRE Runs From First Date of Payment

In S. Ramseur v. WCAB (Wachovia Corp.), the Commonwealth Court held that where the Claimant was entitled to benefits on March 3, 2000, but didn't receive the first payment until August 3, 2000 (presumably a payment including back benefits), the 104 weeks provided for in Section 306(a.2) of the Act expires on August 3, 2002. This made the August 27, 2002 IRE request timely.

Monday, November 29, 2004

Supreme Court Grants Allowance of Appeal in Heart Attack -- Abnormal Working Conditions Case

In Panyko v. WCAB (U.S. Airways), the Commonwealth Court reversed the grant of a heart attack claim based on Davis v. Workers' Compensation Appeal Board (Swarthmore Borough), 561 Pa. 462, 751 A.2d 168 (2000). The Commonwealth Court recognized the Claimant's argument that abnormal working conditions do not need to be shown in a heart attack case, but the Court noted the Supreme Court applied Davis to a heart attack case without further explanation in Erie Bolt Corporation v. Workers' Compensation Appeal Board (Elderkin), 777 A.2d 1169, 1998 Pa. Commw. LEXIS 1004 (Pa. Cmwlth., No. 1698 C.D. 1997, filed February 5, 1998), reversed, 562 Pa. 175, 753 A.2d 1289 (2000). The Supreme Court has now granted the Claimant's petition for appeal in the Panyko case.

Tuesday, November 23, 2004

Supreme Court Discusses Substantial Evidence Standard of Proof

In Patric Gibson, c/o Kathy Gibson v. WCAB (Armco Stainless & Alloy Products), Appeal of: Armco Stainless & Alloy Products, the Supreme Court reversed the holding of the Commonwealth Court that a co-workers' observation of grey dusty material on the pipes leading from the boiler established the presence of asbestos. The Supreme Court articulated the substantial evidence standard of proof as follows:
  • "...information admitted into evidence must have sufficient indicia of reliability and be relevant to the matter under consideration. Accordingly, to test whether the evidence relied upon is substantial evidence in support of a finding, the reviewing court should ascertain whether the evidence admitted is competent, and if it is competent, whether it is sufficient to support the administrative finding. If the evidence is both competent and sufficient, then the finding is supported by substantial evidence." p. 7

In the case, the witness admitted he had no personal knowledge the material was asbestos. Although the Court would allow the witness to have obtained this knowledge by either formal education or practical experience, there was no evidence the witness possessed either.

The practical observation often made is that if one accepts medical evidence the Claimant has asbestosis, then work exposure is a likely cause. The Supreme Court made the following comment on the Claimant's medical evidence:

  • "...we are troubled by the absence of testimony from any of Decedent’s treating physicians, the want of a diagnosis of asbestos-related disease during his lifetime, and the lack of a post mortem examination that could have conclusively established asbestos-related disease among the actual contributory causes of death. Further, the existence of apparently inert opacities occurring on Decedent’s chest x-rays over a period of twelve years seriously undermines a finding of asbestos-related disease as a significant cause of death. While unnecessary for a determination in the instant matter, we would caution tribunals considering claims of this nature that the weight to be accorded to evidence of cause of death must reside primarily with the diagnosis of one or more treating physicians or significant findings upon post mortem. After-the-fact testimony by non-treating medical experts, who have had no contact with the decedent, and that is contrary to the diagnosis of a treating physician or the findings on post mortem, may be of limited value in establishing a cause of death." f.n. 5

Thursday, November 18, 2004

Commonwealth Court Emphasizes Limited Basis of Appeal for Capricious Disregard of Competent Evidence

In E. Williams v. WCAB (USX Corp.-Fairless Works, et al.) the Claimant appealed the credibility findings of the WCJ. The Commonwealth Court made it clear that the Claimant could not cobble together bits and pieces of testimony to make an argument that the WCJ capriciously disregarded competent evidence. Rather, the WCJ's decision identified and explained the substantial, competent, and credible evidence on which the decision was based. The Court emphasized it will be a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence.

Pennsylvania Workers' Compensation Practice and Procedure Reference 29.217

Wednesday, November 17, 2004

WTAE Pittsburgh's Site Offers Interesting Articles on New Developments in Treatment of Back Pain

WTAE's web site has information on Fish Oil used in place of NSAIDs for neck and low back pain. The research was done by Dr. Joseph Maroon. The links to the right under the heading "All About Back Pain" are interesting also.

Thursday, October 07, 2004

Pennsylvania Workers' Compensation Journal Will Return November 15, 2004

Pennsylvania Workers' Compensation Journal will return on a regular basis on November 15, 2004.

Monday, July 19, 2004

Penalty Granted On Prescriptions Unpaid When Insurer Cancels Prescription Card

In T. Brenner v. WCAB (Drexel Industries) the Commonwealth Court reversed the Board and affirmed the WCJ's holding that the Employer/Insurer violated the Act when it unilaterally ended a prescription card program.  The Claimant was able to get medications through the prescription card program.  When the card was cancelled without prior notice to the Claimant, she went without medications for a period of time, then submitted prescription expenses she was able to pay, only to have them sent to utilization review.
The Commonwealth Court held the WCJ was correct to apply McLaughlin v. Workers' Compensation Appeal Board (St. Francis Country House), 808 A.2d 285 (Pa. Cmwlth. 2002), appeal denied, 573 Pa. 717, 828 A.2d 351 (2003) which held the Employer cannot plead failure to present bills properly when it acts to prevent the treatment at issue.  Where the Employer/Insurer gave no notice to the Claimant of the revocation of the prescription card, a penalty was appropriate under McLaughlin
Pennsylvania Workers' Compensation Practice and Procedure Reference 13.37

Friday, July 16, 2004

C&R "Claimant Has Sustained No Other Injuries" Clause Held Not Effective

In J. Wallace v. WCAB (Bethlehem Steel, et al.) the Claimant C&R'd a 1996-97 inhalation injury on March 1, 2001.  The C&R provided that the Claimant was not presently working due to back problems.  In this context, the Claimant agreed:
Claimants allegation of injury is that he inhaled trichloroethylene and perchloroethylene in an unventilated area while cleaning metal plates. Claimant also alleges that he inhaled Chlorosolv in October 1996 and on March 24, 1997. By agreeing to this Compromise and Release Agreement, Claimant specifically represents that he has sustained no other occupational injuries or diseases arising out of or causally related to his employment with Bethlehem Steel; and that he has not given statutory notice of any other injuries or diseases.

In the Claimant's later Claim Petition alleging an August 3, 1998 back injury, the Claimant (who was represented by other counsel) testified his counsel on the C&R told him it wouldn't affect his back injury claim.  Also, the Claimant was not questioned about the back injury at the C&R hearing.   Under these circumstances, the Commonwealth Court felt it was appropriate for the WCJ to conclude the Claimant had not agreed to waive his back claim.

Pennsylvania Workers' Compensation Practice and Procedure Reference 26.19

Thursday, July 15, 2004

Two More Cases Hold Date of Injury in Cumulative Trauma Case is Last Day of Work

In Leslie Fay Companies, et al. v. WCAB (Macaluso, et al.) the Commonwealth Court let stand a WCJ's decision finding the date of injury in a cumulative trauma case was the last day of work. The insurer appealed because the Claimant had a long history of symptoms and the last insurer only covered the Employer for two an a half months.

As stated recently by the Supreme Court in City of Philadelphia v. WCAB (Williams) the analysis of the appropriate date of injury in a cumulative trauma case looks only to whether credited medical evidence establishes each day of work causes an "aggravation" or new injury.

Pennsylvania Workers' Compensation Practice and Procedure Reference 3.104

Tuesday, July 13, 2004

Commonwealth Court Affirms Dismissal of Petition To Set Aside Compromise and Release Agreement Alleging Lack of Mental Capacity

In M. Stiles v. WCAB (Dept. of Public Welfare) the Commonwealth Court affirmed a summary dismissal of a Petition to Set Aside a Compromise and Release Agreement. The Claimant alleged she was not mentally competent when the C&R was approved. The dismissal was summary because Claimant's Counsel moved for a continuance for medical testimony at the first hearing and deferred the Claimant's testimony. The Employer thereafter moved for dismissal on the basis of collateral estoppel, and the WCJ granted the motion.

The Court distinguished the case from North Penn Sanitation Inc. v. Workers' Compensation Appeal Board (Dillard), ___ A.2d ___, (Pa. Cmwlth. No. 2115 C.D. 2003, filed, May 10, 2004) on the basis that Dillard's blindness was unknown to the WCJ. The Court stated the Claimant's mental competency was an issue before the WCJ, who made a finding the Claimant understood the Agreement.

Pennsylvania Workers' Compensation Practice and Procedure Reference 26.3 et. seq.

Wednesday, July 07, 2004

Personal Injury Lawyers Look to Workers' Compensation as a Result of Tort Reform

An article from the Philadelphia Business Journal reports that as personal injury lawyers have fewer and less lucrative cases, they are appearing more often before WCJs. "With the various changes with the law, the personal injury attorneys are seeing their business hit," [George] Martin said. "They're less inclined to refer [workers' compensation cases] out when their business is down."

Sunday, June 27, 2004

Local SSA Interpretation Limits Fee Reduction to Lifetime Pro-Ration of Indemnity

When preparing Sciarotta Language for Compromise and Release Agreements, Counsel typically does not show the attorney's contingent fee coming out of the Medicare Set Aside Amount. This is Medicare's directed procedure, according to a May 7, 2004 All Regional Administrators memorandum. Thank You to Judge Torrey for the memo reference

Counsel instead applies the whole counsel fee to the net amount representing future indemnity. The fee then may exceed 20% of the indemnity amount, but the context clearly shows the fee has been reallocated in accordance with Medicare's directive.

The lifetime pro-ration calculation is performed on the net amount after Medicare set aside and attorney's fees. Recently, however, a counsel from the Pittsburgh area has been instructed by representatives of the Social Security Administration to allocate only a pro rata portion of the fee to the indemnity.

If SSA limits the fee reduction to 20% of the indemnity amount, the Claimant will have to be asked: "Do you understand a portion of the attorney's fee in this case amounting to (the attorney's fee on the Medicare set aside amount) will be included as your income from this settlement for the purpose of calculating your future entitlement to social security disability benefits?"

Pennsylvania Workers' Compensation Practice and Procedure Reference 26.24

Tuesday, May 25, 2004

Commonwealth Court Reverses WCJ's Finding of Abnormal Working Condition in Supervisor's Pattern of Harassment

In RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton) the Claimant alleged mental/mental disability arising from several instances of homosexual advances by his supervisor. The Claimant's supervisor's homosexual statements were abhorrent, but the evidence suggested they were not sexual advances.

"(Finding of Fact)5. Joe Ross, the other employee in the jeep with the claimant, was so affected by Rossi's (the Supervisor's) statement that he asked Rossi if he was queer and told Rossi "Don't you ever talk to me like that, I don't take that bullshit, joke or not, don't ever talk to me like that." Rossi responded that he was just joking and that he knew that Hoppy (the Claimant) gets mad and was teasing him."

Of course, if the statements were sexual hrassment, the claim would not be compensible. Heath v. WCAB (Pennsylvania Board of Probation and Parole) appeal granted

The Commonwealth Court held the behavior was not abnormal working conditions, citing Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996).

Another issue in the case was the basis for the Claimant's subjective reaction to what the Court found to be normal working conditions. Medical evidence suggested the Claimant reacted because he suffers from post traumatic stress disorder (PTSD) from his service in Vietnam. The Claimant's disability may be compensable in this circumstance, as pointed out in the dissenting statements of Judges Friedman and Leavitt. Zink v. Workers' Compensation Appeal Board (Graphic Packaging, Inc.), 828 A.2d 456 (Pa. Cmwlth. 2003) July 10, 2003 Post However, the WCJ did not resolve the issue of whether PTSD or a paranoid personality disorder was the underlying condition of the Claimant.

"(Finding of Fact) 18. ...Whether the claimant had post-traumatic stress disorder from Vietnam or had a paranoid personality disorder, the main point to this Workers' Compensation Judge is that the claimant was a working, functioning employee in the mines until harassed, aggravated and stirred up by the comments in the series of incidents involving Dominic Rossi. It is immaterial whether he has PTSD or personality disorder..."

The issue, as stated by the WCJ in the remainder of Finding of Fact 18, was whether the supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant..." was an abnormal working condition. The Commonwealth Court held it was not.

Pennsylvania Workers' Compensation Practice and Procedure Reference 3.149

Thursday, May 20, 2004

Commonwealth Court Defines Procedure for Proving Modification Based on Surveillance Evidence of Earning Power

J. Burrell v. WCAB (Philadelphia Gas Works, et al.) is a case that has application in many areas. In the final analysis the Commonwealth Court affirmed the Order of the WCJ and Board that imputed income of $9.93 per hour for eight hours per week based on evidence the Claimant was working at least that much as a shoe shiner in his mother's shop.

The first issue was whether modification can be granted without a Notice of Ability to Return to Work when surveillance found the Claimant working. The Commonwealth Court noted receipt of medical information documenting a change in condition triggers the Employer's obligation to send the Notice of Ability to Return to Work. The purpose of the statute is to place the Claimant on notice of the medical information. Where the Claimant deems himself able to work, such notice is not required.

The next issue was whether the Employer had to demonstrate it had no job available to the Claimant within his restrictions before an award of modification. The Court held where the Claimant deems himself able to work, this can only be an affirmative defense of the Claimant.

Another issue was whether the WCJ's holding that the Claimant's imputed hourly wage should be $9.93 was supported by substantial evidence. The Employer's Vocational Expert opined this is the average wage for a shoe shiner in Philadelphia. The Claimant basically argued he's not that good. The Court held the accuracy of the VE's opinion is beyond challenge when the WCJ gives full weight to the VE's testimony, and this determination is within the sole province of the factfinder.

Finally, the Employer requested a credit. The Court recognized "Unjust enrichment occurs when a person has and retains money or benefits, which in justice and equity belong to another." and a credit may be granted to prevent unjust enrichment. However, the Employer could not prove the Claimant received wages or gratuities.

Pennsylvania Workers' Compensation Practice and Procedure Reference 21.56; 21.38; 6.106

Monday, May 17, 2004

Commonwealth Court Holds Claimant Did Not Meet His Burden to Reinstate After Retirement

A. Capasso v. WCAB (RACS Associates, Inc.) describes the Claimant's burden to overcome testimony that he retired. Once the Claimant testifies he retired, the presumption that his loss of earning power is through no fault of his own is abolished. The Claimant must show he is seeking to return to work or he was forced to retire because of his work injury.

The Commonwealth Court also held that where only the Claimant presented evidence, the WCJ was free to discredit it. The Court engaged in Daniels and Wintermeyer review of the WCJ's credibility finding that the Claimant's injury did not motivate him to retire, and the Court affirmed the finding.

Penalties Are Awarded When Employer/Insurer Takes Unilateral Suspension Upon Accrual of Credit

In T. Palmer v. WCAB (City of Philadelphia) The Employer took a unilateral suspension because the Claimant became entitled to a pension that offset her workers' compensation benefits. Even though the Claimant was due no workers' compensation benefits after the offset was applied, the WCJ's award of a penalty on the amount of workers' compensation due before the offset was affirmed by the Commonwealth Court.

This could apply in the case of return to work unilateral suspensions as well. The Court stated the rule that no penalty can be awarded when no compensation is awarded does not apply when compensation is payable, but offset, because the purpose of the statutory provision is to penalize conduct of the Employer/Insurer that is unlawful, in this case the unilateral suspension.

Wednesday, May 12, 2004

Bureau Statement of Policy Confirms Act 53 Qualifications of Vocational Experts are the Qualifications Set Forth at 34 Pa. Code §123.202

As noted in the recent Bureau of Workers' Compensation News and Notes, the Bureau issued a Statement of Policy providing the qualifications of vocational experts referred to in Act 53 of 2003 are as set forth in the "Qualifications (of vocational experts)" Regulation at 34 Pa. Code §123.202.

Later regulation is promised and may address the requirement that vocational experts comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses and other matters.

Pennsylvania Workers' Compensation Practice and Procedure Reference 21.51

Monday, May 10, 2004

Requirement of "Furthering the Employer's Business or Affairs" When Work Injury Occurs Off the Premises

In an article in the Pennsylvania Bar Association Quarterly, James A. Tinnyo, Esquire analyzes Acme Markets, Inc. v. WCAB (Purcell) to hold that an employee must be engaged in the furtherance of business when he suffers an injury off the premises that arises out of employment.

In the case, the Claimant labored heavily for years for the employer, but when his lumbar disk herniated, he was at home. What distinguishes this case from others is that the WCJ credited Claimant's doctor who opined the substantial cause of the herniated disk was the years of employment, not getting up off the floor after assembling a file cabinet for personal use.

Perhaps in this pre Daniels, two months post Wintermeyer case the Commonwealth Court didn't feel it could review the credibility determination.

One has to ask what the Court would have done if the Claimant, due to his degenerative condition accumulated from years at work, simply couldn't get up in the morning due to pain. If the Court would still deny the Claimant because he was at home (which is contrary to the heart attack cases Mr. Tinnyo cites) then a new precedent has been created.

No Proof of Change of Condition is Necessary for Second IRE in a Twelve Month Period

In S. Hilyer v. WCAB (Joseph T. Pastill, Jr. Logging), the Commonwealth Court endorsed the Bureau's Regulation at 34 Pa. Code §123.102(g) which provides an Employer can have an IME (Independent Medical Exam) that comments on the status of the Claimant's impairment under the AMA Guides within the twelve months following the IRE (Impairment Rating Evaluation) provided for in §306(a.2)(1) of the Act.

The Court danced around the fact the Act only allows an IME to be held after the Employer's one shot at an IRE which must be conducted within sixty (60) days after 104 weeks of temporary total disability is paid. §306(a.2)(6) The Court allowed to stand the obfuscation of the regulation that states an Employer can have two IRE's in a twelve month period, when the statute clearly says IMEs.

The bottom line, however, is the Court properly read §306(a.2) in pari materia to provide that in an IME that takes place after an IRE is properly conducted, the examiner can review the status of the Claimant's impairment under the AMA Guides. The Court further held no prefatory showing of a change in condition is required by §306(a.2)(6).

Pennsylvania Workers' Compensation Practice and Procedure reference: 17.31

Monday, May 03, 2004

NCP, Including Description Of Injury, Can Be Reviewed Where Facts Were Available At Time NCP Was Issued

In Meenan Oil Co., L.P. v. WCAB (Pownall) the Commonwealth Court held that pursuant to Section 413(a) of the Act, a review petition can be filed "at any time" to correct material mistakes including the date of injury and the description of injury.

The key here is the facts that direct the relief requested existed at the time the NCP was issued. The WCJ considered these facts under a review petition. The WCJ's finding that the date of injury and the description of injury were incorrectly entered on the NCP was within the authority granted by Section 413(a).

Pennsylvania Workers' Compensation Practice and Procedure reference: 25.6

Monday, April 05, 2004

New NCP With Medical Only Check Box Published

The Notice of Compensation Payable (LIBC-495) to use for medical only cases is available at the Workers' Compensation Forms Matrix Site. This form replaces all prior versions of the NCP.

Pennsylvania Workers' Compensation Practice and Procedure reference: 9.6

Tuesday, March 23, 2004

Commonwealth Court Affirms Board Order Quadrupling Disfigurement Award

In General Motors Corp. v. WCAB (McHugh) The Board explained a disfigurement case almost in the manner the Court asked the Board to do in Lord & Taylor v. WCAB (Bufford) November 7, 2003 post. The Court affirmed the Board's modification of a disfigurement award from fifteen (15) to fifty-five (55) weeks.

The specifics: 3/4 in. scar right nostril -- WCJ 6 weeks, Board 15 to 25 weeks, awarded 20; 1/2 in scar right eyebrow -- WCJ 7 weeks, Board 3 to 5 weeks, awarded 5; "de mimimus" (per WCJ) deviation of bridge of nose to the left -- WCJ 2 weeks, Board 25 to 35, awarded 30.

The element of Lord & Taylor that the Court did not require in the instant case was the requirement that the Board explain how it arrived at the range most WCJ's would select. The Court declined to offer any guidance itself, recognizing this is within the province of the legislature. The Court also again stated the "rule of thumb" of ten weeks per linear inch has no precedential value. The Court indicated it would affirm the Board's determination of "acceptable" awards to pursue uniformity.

Monday, March 22, 2004

Employer Has Thirty Days After WCAB Supersedeas Disposition to Pay

In R. Snizaski v. WCAB (Rox Coal Company) the Commonwealth Court reversed its holding in Hoover v. WCAB (ABF Freight Systems) and stated an employer shall not be penalized for not paying workers' compensation benefits due under an Order of the WCJ while the time for review of the Employer's supersedeas request before the Workers' Compensation Appeal Board has not expired. Judge Friedman's dissent pointed out the Board's procedure can take fifty (50) days, and with thirty (30) days to pay thereafter, the Employer could pay eighty (80) days after a WCJ's order without penalty.

Supreme Court Takes Gardner, Denies Employer's Appeal in Cryder

The Supreme Court granted allowance of appeal in Gardner v. WCAB (Genesis Health Ventures) January 15, 2003 post, which held an Employer may not have an IRE if it is not requested in the sixty (60) day window after the expiration of 104 weeks of temporary total disability. The Supreme Court denied the Employer's petition for appeal in Cryder v. WCAB (National City) June 24, 2003 post, which held when a Claimant on light duty was terminated for not meeting her production goals, her loss of earning power was through no fault of her own.

Tuesday, March 16, 2004

Commonwealth Court Issues Another AWW Case

The G. Rebel v. WCAB (Emery World Wide Airlines #150) affirms that when a Claimant is off for a non work-related condition during the year prior to a work injury, but the Claimant did work a complete 13 week quarter prior to the injury, Section 309(d) is used to calculate the AWW. The Court stated the Claimant remained "employed" while she was off for maternity leave.

This case lends itself to Judge Friedman's (joined by Judge McGinley) argument stated in the dissent in Zerby that when one is incapable of performing services for valuable consideration, one cannot be employed. Maternity leave is no more a factor in establishing pre-injury earning experience as a predictor of future earning potential than is a prior work injury or a period of disability for which the Claimant collected sickness and accident benefits. In the cases of Colpetzer, Zerby and Shire the Commonwealth Court put the Claimant's prior AWW or S&A benefit rate in the Section 309(d) calculation.

That was a fair compromise in those cases, but this case demonstrates a determination of whether the Claimant was capable of performing services for valuable consideration when the Claimant had no earnings is more universal in determining future earning potential. In the Dana Corporation cases, one could argue periods of lay off prior to a work injury are relevant to what the Employer's liability for future wage replacement should be. A direction that unemployment compensation should be included in a later AWW calculation would be appropriate for the legislature to consider.

Colpetzer, Zerby and the three Dana Corporation cases, are presently before the Supreme Court.

Commonwealth Court States Findings of Fact Not Reviewable

In J. Almeida v. WCAB (Herman Goldner Company) the NCP accepted a strain to the lower back. In later termination proceedings, the Claimant's medical witness stated the Claimant sustained a herniated lumbar disc. The Employer's medical witness stated the Claimant was recovered from a lumbar strain and his continuing complaints were from non work-related mild degenerative disc disease.

The WCJ found the Claimant's expert credible, but also found the Claimant did not sustain a herniated disc. The WCJ noted the Claimant's non work-related degenerative disc disease was not symptomatic prior to the injury.

The Claimant appealed. He asserted the WCJ's finding the Claimant did not sustain a herniated disc was not supported by substantial evidence. The Board affirmed on the basis of the WCJ's authority over matters of credibility.

The Commonwealth Court affirmed on the basis that a party lacks standing to appeal a finding of fact where the party does not appeal the Order of the WCJ. The Court stated the Claimant was not aggrieved by the Order of the WCJ, and therefore no standing to appeal is granted by Pa. R.A.P. 501 or Section 702 of the Administrative Agency Law.

In a footnote (No. 5), the Court stated it agreed the WCJ's fact finding was "appropriate", but the Court was without power to set aside the WCJ's factual finding on the herniated disc without invading the province of the WCJ to weigh the evidence and make credibility determinations.

The WCJ's fact finding in this case was appropriate because it satisfied the framework the Supreme Court has established in Daniels and Wintermeyer for reviewing credibility findings of a WCJ. The WCJ did explain, as required by Daniels, that the diagnosis of a herniated disc was not credible because it was unsupported by objective evidence. Also, it is not clear beyond doubt that the WCJ capriciously disregarded other competent evidence, which triggers judicial review under Wintermeyer.

This analysis also would allow the finding of the WCJ to have Res Judicata effect. If a finding of fact cannot be appealed, the denial of due process as to this adjudication of the WCJ makes giving the finding Res Judicata effect also a denial of due process.

The description of injury is a very important element in allocating the burden of proof under recent caselaw. If it is true a description of injury in a WCJ's finding of fact cannot be appealed, the parties should demand that whenever the description of injury is at issue it be included in the Order with the appropriate diagnosis code(s) as testified to by the medical witnesses.

Commonwealth Court Affirms The Subsequent Injury Fund Is Not Liable for Penalties

J. Chiconella v. WCAB (Century Steel Erectors, Inc., et al.) affirms the Subsequent Injury Fund is not liable for penalties. Only "employers" and "insurers" can be penalized.

Tuesday, February 24, 2004

Social Security and Medicare Updated Information

For Social Security offsets, the new life tables were published on February 18.

For Medicare set-aside account approvals, the Centers for Medicare & Medicaid Services (CMS) has a coordination of benefits contractor. Accordingly, there is a new address to send requests for approvals of medicare set-aside proposals.

Supreme Court Grants Employer's Petition for Allowance of Appeal in More AWW Cases

The Supreme Court granted the Employer's Petition for Appeal in the consolidated cases of Reifsnyder v. WCAB (Dana Corporation), Remp v. WCAB (Dana Corporation) and Hoffa v. WCAB (Dana Corporation). The Commonwealth Court in these cases reversed the WCJ's application of Section 309(d) of the Act on the basis that while the Employees were employed for all 52 weeks prior to the dates of injury, they had not worked a complete period of thirteen calendar weeks. The Commonwealth Court allowed the Employees to use section 309(d.2) of the Act.

The Supreme Court now has these cases with Colpetzer and Zerby, both of which used Section 309(d) but included the AWW of a prior work injury in the calculation. The Court denied the Petition for Allowance of Appeal in Shire, which used section 309(d) and included S&A benefits in the calculation.

The Claimants in the Dana Corporation cases were laid off for periods, and presumably they collected unemployment compensation benefits that could be included in an AWW calculation to achieve an average weekly wage that reasonably reflects the reality of the Claimant's pre-injury earning experience as a predictor of future earning potential.

Supreme Court Gives Standard for Ordering Diagnostic Testing With Physical Examination

In Coleman, Aplt v. WCAB (Indiana Hospital, et al.) the Claimant sought review of a WCJ's Order that she undergo a triphasic bone scan and MRI. The WCJ found the unrebutted medical evidence was that the tests were required; there was no medical evidence suggesting the tests would not have diagnostic value or place the Claimant at risk.

The Board dismissed the Claimant's appeal because she underwent the test, but the Commonwealth Court agreed to hear the issue and affirmed the WCJ as did the Supreme Court.

The Supreme Court held the term "physical examination" includes all reasonable medical procedures and tests necessary to permit a provider to determine the extent of a Claimant's disability. Furthermore, the test must meet the standard for suspension for refusal of care, e.g. it must involve only a minimal risk and offer a high probability of success. The fact that a test or procedure is invasive is not relevant; the Court said injections are commonplace in medical diagnosis and treatment. However, a reasonableness standard will be applied to the intrusiveness of the test or procedure. A minimally invasive test may be unreasonably intrusive, such as genetic testing, and introduction of a contrast agent into the body will not be unreasonably intrusive in most cases.

The Court concluded diagnostic testing to evaluate the extent of the Claimant's injuries falls under the definition of a physical examination when it is necessary, involves no more than minimal risk and is not unreasonably intrusive.

Friday, February 13, 2004

Commonwealth Court Applies Logical Analysis of Cumulative Trauma Over Technical Analysis

In R. Armitage v. WCAB (Gurtler Chemicals) the Claimant suffered from plantar fasciitis that arose from continuous standing. The condition was diagnosed in 1995. The Claimant kept working, however, only suffering a work restriction when the Employer sought to increase his hours in 1999 and the Claimant stated he could not do it. The Claimant's modified duty status continued until December 2000, when modified duty was no longer available. When the Claimant filed a claim in March 2001, his doctor testified that while standing aggravates the Claimant's symptoms, the Claimant's condition was no better or worse than it was in 1995. The WCJ was constrained to dismiss on the statute of limitations. The Board affirmed.

The Commonwealth Court agreed it is necessary to establish a daily aggravation to establish the last date of work is the injury date. The Claimant's doctor testified there was not a daily aggravation. However, the Commonwealth Court remanded for the WCJ to consider whether the Claimant's condition was aggravated on any date within the three year statute of limitations. The WCJ had not made a specific finding on this fact, and the Court identified testimony of the Claimant and his doctor that might support such a finding.

The equities of this case favor the Claimant. The policy concern of allowing the Employer to conduct a fresh investigation of the circumstances of the injury is satisfied without regard to the passage of time. Proper notice was given, and the Claimant's physical condition is unchanged. The Claimant should not be punished for continuing to work.

The Court did foreshadow a possible remedy for the Claimant. After recognizing the Claimant sought to set the date of injury when he first had a loss of (potential) earning power in 1999, the Court called this a "valid point," but then moved on to their analysis that the record might support an aggravation within the last three years.

Thursday, February 12, 2004

New York Times Article: "Healing a Bad Back Is Often an Effort in Painful Futility"

A New York Times Article picked up on the same theme as the study mentioned in the January 28 post that supports a prompt return to graded activity. The article focused on cases in which overutilization of low back surgery reverses normal recovery from a low back sprain. Thanks to Workers Comp Insider for directing me to the article. Read the comment at Workers' Comp Insider

Thursday, February 05, 2004

Two Pennsylvania Bar Association Quarterly Articles on Workers' Compensation

In the January 2004 Pennsylvania Bar Association Quarterly, Paul Dellasega and Crystal Williamson of Thomas, Thomas & Hafer outline the employee's burden of proof in a wrongful discharge action alleging termination based on the employee's prosecution of a workers' compensation claim.

Also, Daniel R. Shuckers, Prothonotary of the Commonwealth Court, argues in favor of abolition of the "legal residuum" rule. The rule provides that in administrative adjudications when hearsay evidence comes in to the record, a finding of fact may not be based solely upon hearsay. Mr. Shuckers suggested the 1976 Commonwealth Court holding in Walker v. U.C. Board of Review is a relic of an era when administrative law judges were political appointees, untrained and/or uncaring about due process. Since this is no longer the case, Mr. Shuckers suggests the Commonwealth Court should fall in line with the Administrative Agency Law and the Rules of Evidence.

In the Administrative Agency Law and the General Rules of Administrative Practice and Procedure, even objected to hearsay can be admitted if relevant, material and and of the kind that would affect reasonable and fair minded persons in the conduct of their daily affairs. The Rules of Evidence (which are not binding on agency determinations) allow unobjected to hearsay to be relied upon.

John Gedid, Director of the Widener University School of Law -- Law and Government Institute, argues in favor of the "legal residuum" rule. Relying on fundamentals of due process from both the Federal and State Constitutions, Mr. Gedid states the courts have a duty to assure meaningful judicial review of agency action by assuring due process at the agency level. The right of cross-examination is the due process right preserved by the "legal residuum" rule.

In an introduction, the authors do recognize that the Supreme Court lately has been leaning toward more regulation of ALJ's. This is evidenced by the Supreme Court holdings in Daniels, which requires WCJ's to state the reasons for credibility determinations made on all but live testimony, and Wintermeyer, which holds the courts can reverse a credibility determination made with capricious disregard of other competent evidence. The suggestion was made that pressure on ALJs to decide large numbers of cases informally, efficiently, rapidly and inexpensively can cause an otherwise highly trained and diligent ALJ to pursue these objectives at the expense of fairness to a Claimant.

The article did not consider that fairness to the Claimant is not always achieved by requiring cross examination. In 1976, Baksalary had not been decided. Then, it was a matter of fairness to Claimants that the Employer should not be able to take an automatic supersedeas based upon an opinion of full recovery and then get a final order without a deposition. Now, it is often the Claimant that is prejudiced by the requirement that the Claimant take a medical deposition in every long-term (more than 52 weeks) case as defined in Weaver v. State of the Art.

However, the current state of the law still provides the necessary framework to achieve fairness in these cases. The legislature amended Section 422(c) of the Act to provide a medical report may be admitted in any case where there is no objection, and the Commonwealth Court withdrew the Iroquois Tool decision that held this amendment was unconstitutional. Under Rule of Professional Conduct 3.1 counsel has an obligation to not assert an issue unless there is a basis for doing so that is not frivolous. The comment to the rule would suggest that interposing a hearsay objection solely because counsel knows it is not cost effective for the Claimant to take his doctor's deposition would be in violation of the rule.

Fairness can be achieved with the "legal residuum" rule. The only result of abolishing the "legal residuum" rule would be renewed efforts to require that workers' compensation cases be litigated exclusively on medical reports.

Sunday, February 01, 2004

Current Arguments For and Against Workers' Compensation Reform in Pennsylvania

A Northeast Pennsylvania Business Journal Article refers to the WCRI findings (January 21,2004 post) and includes commentary from a Harrisburg policy institute stating the cost of workers compensation insurance in Pennsylvania is about 8 percent above the national average cost per $100 of payroll, which ranks Pennsylvania 19th highest in the United States. The average benefit is more than 25 percent higher than the national average, ranking 11th. The article also includes comments from two claimants' counsel.

Wednesday, January 28, 2004

For Low Back Pain, Exercise, don't go for Prolotherapy

In one recent study at VU University Medical Center, Amsterdam, Netherlands, a graded activity program, meaning a progressive exercise regimen without reference to subjective complaints, returned employees to work faster. After the participants were evaluated for any pathology for which activity would be contraindicated, they were put through a physical therapy regimen that emphasized function and de-emphasized pain. The participants apparently accepted the "hurt doesn't mean harm" mantra.

Harold Prather, D.O., Chief of Physical Medicine and Rehabilitation at Washington University School of Medicine commented: "Athletes and other professionals are highly motivated, have high self-esteem, are not depressed, and have a strong motivation to keep doing what they always do." He suggested that the graded activity program imbues the injured worker with some of the ideals and motivation of the injured athlete.

Prolotherapy is not the way to go according to a study at The University of Queensland, Brisbane, Australia. In the study, neither prolotherapy nor flexion-extension exercise improved pain or disability associated with chronic nonspecific low back pain beyond that observed with saline injections or normal activity.

School District May Take a Pension Offset Only For What the School District Contributes

Pittsburgh Board of Education v. WCAB (Schulz) answered the question left unanswered in Pittsburgh Board of Education v. WCAB (Dancho). For the pension offset, a school district can offset only what it contributes, not the Commonwealth's contribution.

Wednesday, January 21, 2004

Pennsylvania Costs Per Claim Rose, But Remain Lower Than Median of Other States

A press release regarding the latest WCRI Study states that while costs per claim in Pennsylvania rose 8.5 per cent per year on average from 1999 to 2002, costs per claim remained 15 per cent lower than the median of other states surveyed. Attorney involvement was not identified as a cost driver as it has been in the past. Cost drivers were identified as double-digit increases in medical costs per claim and benefit delivery expenses. Also, Pennsylvania public officials, insurers and employers were commended on compliance with the 21 day rule.

The WCRI site also touts a study that found workers in Pennsylvania and Massachusetts are more likely to have satisfactory recoveries and a timely return to work, although this is consistent with findings that workers in these states have better access to satisfactory medical care.

Commonwealth Court Confirms Cafeteria Plan Funds Not Wages

In J. Weikel v. WCAB (PECO) The Employer provided "flex dollars" for benefits, and the Claimant could get them in cash if they were unused. The WCJ held amounts allocated by the Claimant to purchasing plan items are not includable in the average weekly wage. The Commonwealth Court affirmed, noting Section 309 excludes from the AWW calculation "employer payments for or contributions to a retirement, pension, health and welfare, life insurance, social security or any other plan for the benefit of the employe or his dependents."

Thursday, January 15, 2004

Commonwealth Court Affirms WCJ May Grant Motion To Dismiss on the Pleadings

In Karotka, et al. v. WCAB (Millcreek Community Hospital, et al.) the spouse of the Claimant who passed away from reasons unrelated to her work injury filed serial Penalty Petitions alleging vague misconduct by the Employer. The WCJ cut the Complainant off at the hearing and gave him an additional 30 days to state his case in writing. The WCJ then dismissed on the basis of res judicata.

The Commonwealth Court affirmed and further stated that nothing in Section 504 of the Administrative Agency Law requires an evidentiary hearing. Notice and the opportunity to be heard is satisfied if the WCJ reviews the pleadings and requests briefs. This can be on the WCJ's own motion, or on the motion of a party. The WCJ can dismiss a frivolous petition using this procedure.

Commonwealth Court Further Defines Supersedeas Reimbursement After C&R

In Coyne Textile v. WCAB (Voorhis) the WCJ dismissed the Employer's Termination Petition after a C&R holding the C&R resolved all the issues in the case. The Employer wanted a decision on the Termination Petition to get supersedeas reimbursement.

The Commonwealth Court noted the following language in the C&R:

Upon approval of the Compromise and Release Agreement by [the WCJ], the [C]laimant will receive a total of $17,500 to fully and finally settle any entitlement for indemnity and medical benefits from August 16, 2000 into the future.
Specifically, the parties acknowledge that this Compromise and Release Agreement does not adjudicate the issues raised by [Claimant's Challenge Petition], filed in response to the [Suspension Petition] filed by the [E]mployer on June 23, 1999. Those issues will be decided by the [WCJ] based on the evidence of record already submitted by the parties.
(Emphasis in the decision of the Court)

With this language in the C&R Agreement, the Commonwealth Court held it was appropriate for a decision to be issued on the Employer's Petition for Termination. The Court remanded to the WCJ to render a decision.

When the WCJ receives the remand, the WCJ can either do a full opinion and order or follow the procedure set forth in Optimax, Inc. v, WCAB (Yacono). In Optimax, the parties entered into a stipulation that a Termination Petition should be granted. The WCJ entered a decision and order on the stipulation. The Employer proceeded to file a Petition for Supersedeas Reimbursement, and this petition was assigned to a WCJ. The WCJ who decided the Petition for Supersedeas Reimbursement dismissed the Petition because the termination was entered on a stipulation. The Commonwealth Court reversed and remanded to the WCJ that received assignment of the Petition for Supersedeas Reimbursement, with the direction that this WCJ review the record and determine whether the record supported the facts stipulated to, e.g. the facts supporting termination. The Court stated supersedeas reimbursement could be had if the record supported termination.

Therefore, the procedure according to these two cases is to provide in the C&R that the lump sum is in consideration of future benefits, and that the Employer's Petition will be decided on the record. There has to be a record, e.g. a supporting deposition or withdrawal of Claimant's objection to Employer's medical report under Section 422(c). To dispose of the Employer's Petition, the parties enter into a stipulation that the petition should be granted. The WCJ issues a decision on that stipulation. The Employer files a Petition For Supersedeas Reimbursement. The WCJ who receives assignment of the Petition For Supersedeas Reimbursement reviews the record and determines whether the record supports the stipulation. If so, supersedeas reimbursement may be granted.

Tuesday, January 06, 2004

Supreme Court Denies Appeal on Some Cases of Interest, Consolidates Korach With Jeanes Hospital

The Supreme Court denied Allowance of Appeal in Sekulski v. WCAB (Indy Associates) (June 18, 2003 post) a course and scope of employment case commented on at Hershey.

The Supreme Court also denied Allowance of Appeal in Shire v. WCAB (General Motors) (July 8, 2003 post). The Shire holding including non-work related sickness and accident benefits in an AWW for a later injury may not be inconsistent with the way the Court is leaning in Colpetzer/Zerby (August 26, 2003 post), in which the issue is whether a Claimant's AWW from a prior work injury gets included in an AWW calculation for a later work injury.

The Supreme Court granted Allowance of Appeal in Westinghouse Electric, Pet v. WCAB(Korach) (July 1, 2003 post), consolidating it with Jeanes Hospital (September 23, 2003 post). In Korach, the statute of limitations with respect to the filing of a Claim Petition to add a psychiatric description of injury to the NCP was tolled by the payment of psychiatric bills by the Employer.

Friday, January 02, 2004

Supreme Court Holds WCJ May Determine Paternity, Limited To WC Claim

In Rossa v. WCAB (City of Philadelphia) the issue before the WCJ was the paternity of a child prosecuting a fatal claim petition. The Supreme Court held: "Given the familial relationships that the WCJ must often disentangle, determining the eligibility of a child is not an extraordinary task. It is a responsibility that the WCJ is well able to assume."

The Court further held the standard of proof is preponderance of the evidence.

Supreme Court Reverses Commonwealth Court in Caso

On December 23, Section 306(b) was amended to provide a vocational expert that meets qualifications established by the Department by regulation can conduct a vocational interview. On December 30, the Supreme Court in Caso v. WCAB (School District of Philadelphia) held that is what Section 306(b) meant all along. The Court held the Department's interpretation of the statute was entitled to great deference, and should not have been overturned unless such interpretation was clearly erroneous. Here, the interpretation that "approved" in Section 306(b) means "competent" was held by the Court to be reasonable.

The Court then reviewed the resulting application of the statute: an expert that meets the qualifications set forth in the regulations is deemed "approved" and the claimant may be compelled to attend a vocational examination with the expert. On a subsequent petition the WCJ determines competency of the vocational expert and may do so in light of the Bureau's (Department's) regulations. Finally, the Court noted defendant employers and insurers are subject to the imposition of penalties for bad faith selection of an unqualified interviewer.