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."