Saturday, December 31, 2005

Supreme Court Affirms Gardner, But Holds Employer Can File a Petition to Modify Based On Later IRE

In Gardner v. WCAB (Genesis Health Ventures) and Wal-Mart Stores, Inc. v. WCAB (Rider) the Supreme Court addressed the mandatory language of Section 306(a.2)(1) of the Act which requires that an employer have an IRE within sixty (60) days of the Claimant's receipt of 104 weeks of temporary total disability benefits.

The Court easily disposed of Rider. In that case, the 104 weeks passed while the case was still in litigation. The Commonwealth Court then allowed the employer to request the IRE within 60 days of the final order. As I recall, the Commonwealth Court opinion allowed the reader to assume supersedeas had been granted in the case, and the claimant did not receive the benefits until after the final order.

Actually, supersedeas as to indemnity benefits had not been granted. The claimant did receive the 104 weeks of benefits prior to the final order. Consistent with Gardner, the IRE request was untimely and the Supreme Court so held, reversing the Commonwealth Court.

The Supreme Court affirmed Gardner, holding the statutory language is clearly mandatory.

The Supreme Court then turned to Section 306(a.2)(6). This section provides an Employer may have only two independent medical evaluations in a twelve (12) month period, codifying the rule of thumb among WCJs for many years. However, in this section an independent medical evaluation is also referred to as an appropriate vehicle for determining the status of impairment.

A theory about the application of Section 306(a.2)(6) held that if there was no IRE within the 60 day window, there was nothing to review in a later IRE. The Supreme Court held that even if the Employer misses the sixty (60) day window in Section 306(a.2)(1), the Employer can request a later IRE. The Supreme Court did this by creating a presumption that the Claimant's impairment is greater than 50% if the Employer does not request the IRE in the first 60 days following the receipt of 104 weeks of benefits.

Furthermore, the Supreme Court held that when the employer requests the IRE after the 60 day window expires, the employer is not entitled to file a self-executing LIBC-764 Notice of Change of Workers' Compensation Disability Status. Section 306(a.2)(5) of the Act provides it must be adjudicated or agreed that the claimant's condition has improved to an impairment rating that is less than fifty per centum (50%).

Accordingly, the employer must ask the claimant to sign a supplemental agreement endorsing the IRE findings. Many will sign, since the claims representative will explain their benefits will not stop for 500 weeks.

For claimants who follow others' advice to "sign nothing", the employer will have to file a modification petition. Claimants will have no practical defense to this petition. Claimants will seek counsel, who will advise only the few whose impairment may exceed 50% should incur the cost of a claimant's IRE. The supplemental agreement will be signed. The claims representative will get claimant's counsel's phone number for the claims representative's file.

The final group of claimants will not sign and will not seek counsel, but will verify that the relief the employer is seeking will not stop their benefits, at least for 500 weeks. They will then be no-shows at the hearing like claimants who return to work and do not sign supplemental agreements. The WCJ will accept the IRE in evidence and issue a decision endorsing its findings.

Wednesday, November 23, 2005

WCRI Report on Provider Choice

The Workers' Compensation Research Institute (WCRI) issued a report entitled The Impact of Provider Choice on Workers' Compensation Costs and Outcomes. The report states panel physicians produce objectively better results, which WCRI attributes to an employer and carrier's superior resources in choosing physicians (Liberty Mutual is touting their system to put an even finer point on this).

WCRI's report admits employees report greater satisfaction with physicians they choose. The authors state this response is inconsistent with the poorer return to work outcomes and higher costs of employee chosen providers.

The rub of course is how the provider balances the conflicting interests of the employer and employee. A procedure that makes excessive medical and disability costs apparent to the employee would control costs without the dissatisfaction of restriction of choice.

Insurance Journal Article

Update: A similar study by the Public Policy Institute of California (using Pennsylvania among others as representative states) made similar findings, but with a twist. If the Claimant chose a physician not on the panel, but who the Claimant had seen before, outcomes vs. a panel doctor were not significantly different. The obvious inference would be that the pre-defined preexisting condition could not become part of the work injury in these cases. Article

Thursday, November 10, 2005

Supreme Court Holds Section 301(c)(1) Amendment Is Not Bar To Contract Exception To Coming and Going Rule

In Wachs v. WCAB (American Office Systems & Donegal Mutual Ins. Co.) the decedent had a fixed place of business. He worked in his home office and the employer's home office as a technician supervisor. Earlier, the decedent was a technician. When his employer recruited him back from a competitor, the decedent had demanded and was provided with a company car.

On the date of injury, the decedent was called in to the home office to work on two fax machines a client dropped off to be serviced. He drove his company car. The decedent was killed in an automobile accident.

The Court recognized an injury arising in the course and scope of employment does not include "injuries sustained while the employe is operating a motor vehicle provided by the employer if the employe is not otherwise in the course and scope of employment at the time of injury;..." Because the decedent had a fixed place of employment, the coming and going rule applied.

The Court stated however that all common law exceptions to the coming and going rule remain in effect. These are consistent with the language "if the employe is not otherwise in the course and scope of employment at the time of injury." The exceptions are: 1) claimant's employment contract includes transportation to and from work; 2) claimant has no fixed place of work; 3) claimant is on a special mission for employer; or 4) special circumstances are such that claimant was furthering the business of the employer.

In this case, the fact the decedent demanded and was given a company car made his transportation to and from work a part of the Claimant's negotiated employment contract. Accordingly, the accident was within the course and scope of employment by operation of the contract exception to the coming and going rule.

Article further analyzing case.

Thursday, October 06, 2005

Commonwealth Court Publishes SERS Pension Offset Case

The Commonwealth Court granted the motion to publish DPW/Polk Center v. WCAB (King), wherein the WCJ rejected the Commonwealth's request for a pension offset under Section 204(a) of the Act. Linda Miller of the State Employees Retirement System testified the Claimant contributed a specific sum, and SERS further credited the Claimant with interest at the flat rate of 8.5%, then SERS assumed all of the rest of the present value of the Claimant's benefit was contributed by the Employer.

Ms. Miller testified she did not know what contributions were made by the Employer to the Claimant's pension. There was no other testimony presented by the Employer.

The Court stated the relevant inquiry is whether the Employer provided any funding to the plan. The WCJ found there was no evidence it did. The Court was particularly concerned about the flat rate of return used, when real rates of return over the course of the Claimant's employment would be available.

The Court did leave the door open to establishing funding through actuarial calculations, noting there was no finding by the WCJ that the Employer could not determine contributions by way of actuarial tables. The corollary to that observation is that if the actuarial tables told the Employer it did not need to make a contribution, it would not be entitled to a credit under Section 204(a).

The Court also clearly stated the burden to establish what it contributed is on the Employer. In Croom v. WCAB (Pennsylvania Hospital) the Court suggested the burden is on the Claimant, and Petition for Allowance of Appeal to the Supreme Court was denied in Croom on September 28.

The Court finally rejected the Employer's request to remand the case to the WCJ for a determination of what credit is appropriate. On the record presented, no credit was appropriate.

Wednesday, October 05, 2005

Workers' Compensation Office of Adjudication Has New Web Page

The Workers' Compensation Office of Adjudication has created its own web page containing links to materials for adjudication. There is material including directions to hearing locations, and the relatively new policy wherein the Bureau will provide an interpreter without cost.

Roll over each topic in the middle of the page to see the sub topics.

Tuesday, October 04, 2005

Three Supreme Court Cases At End Of September

At the end of September the Supreme Court published three significant cases. Generally: Kramer v. WCAB (Rite Aid Corporation) held all employers, not just self-insured ones, can take the severance (and presumably the pension) offset of section 204(a); Reifsnyder, Remp & Hoffa v. WCAB (Dana Corporation) held a Claimant remains "employed" for the Section 309(d) average weekly wage calculation during periods of layoff (without inclusion of unemployment compensation benefits received) and Westinghouse Electric Corporation/CBS v. WCAB (Korach) discussed the Claimant's right to add injuries to the description of injury consistent with the Supreme Court's decision in Jeanes Hospital. Also, the Supreme Court held in Rothrock v. Rothrock Motor Sales, Inc. that a supervisor could not be discharged for refusing to attempt to dissuade an employee from seeking workers' compensation benefits.

Saturday, September 24, 2005

C&R Unsigned Before Claimant's Death Cannot Be Approved

S. M. Facchine, et al. v. WCAB (Pure Carbon Co. & PMA Group) held that because the statute requires the Compromise and Release be signed and notarized or witnessed, an Agreement could not be approved when the Claimant passed away before signing. The Court stated the plain language of the statute could not be disregarded with the pretext of pursuing its spirit.

Monday, September 12, 2005

Testimony that a Condition is Subject to Periods of Exacerbation and Remission is Competent to Support Reinstatement After Termination

In C. Taylor v. WCAB (Servistar Corporation) the Claimant suffered from work-related plantar fasciitis in 1993. She worked at light duty until December of 1999, when the plant closed. She had stopped treating for the condition in 1997 and was terminated by Order of the WCJ in July 2000.

The Claimant went back to her doctor for orthotics in September of 2000, then went to work for another Employer in March of 2002. In April of 2002 the Claimant went for treatment again, and in May of 2002, the doctor operated on the plantar fasciitis condition.

The Claimant filed for reinstatement. The WCJ rejected the testimony of the Claimant's physician that there was a recurrence of the Claimant's 1993 condition. The Board affirmed.

The Commonwealth Court noted Claimant's doctor's testimony was uncontroverted, and in its analysis, the Court felt the doctor competently testified the condition "continues through cycles of exacerbations and remissions."

The Board had inserted an analysis that the doctor's testimony of recurrence was inconsistent with the prior finding of full recovery and therefore barred by the doctrine of collateral estoppel. The Court rejected this analysis.

The Court did not analyze whether it was simply incredible that the Claimant's 2002 surgery was related to a 1993 onset of plantar fasciitis pain. The WCJ had rejected the credibility of the Claimant's physician and the Claimant's testimony that her subjective complaints were continuing when the finding of full recovery was made.

The Court remanded the matter to the WCJ "for calculation of benefits and a determination of the responsible employer." Both procedurally and based on the evidence there is no way for the WCJ to find the new employer is responsible. Calculation of benefits will be relevant if the WCJ believed the 2002 disability was related to the injury the Claimant sustained in 1993. The treating doctor's testimony is competent, per the Court's holding.

Another Case Holds Notice Of Ability To Return To Work Is Mandatory

In Allegis Group (Onsite) and ITT Hartford v. WCAB (Henry) the Claimant was suspended by the Employer based on available light duty work. When the Claimant filed a claim petition seeking reinstatement, the WCJ agreed the Claimant was able to return to work as the Employer asserted.

The Board, however, reversed the WCJ's suspension. There was no Notice of Ability to Return to Work.

The Court affirmed the Board. Even though the Claimant filed a claim petition, the Employer had the controlling duty to file the Notice of Ability to Return to Work to be entitled to a suspension.

The Court distinguished Burrell v. Workers' Comp. Appeal Bd. (Phila. Gas Works & Compservices Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). The Notice of Ability to Return to Work was not required in that case, but surveillance evidence showed the Claimant working elsewhere, and the Claimant's ability to do that work was substantiated by expert vocational evidence.

The Court stated when suspension or modification is based on new medical evidence, a Notice of Ability to Return to Work is required.

Saturday, September 03, 2005

Individuals Performing Community Service Not Employees of County

In W. Mooney v. WCAB (County of Schuylkill) the Claimant was performing community service painting a church when he fell and hurt his arm. The WCJ, Board and Court held the Claimant was not an employee of the County.

The Claimant agreed he received no wages and the County received no benefit from his services, but the Claimant argued he was working under the control of the County coordinator on site and he received mitigation of his sentence for completion of community service.

The Court held the Claimant was not performing services for valuable consideration. Although his sentence was mitigated for participating in community service, this was his option and a function of his sentence imposed by the Common Pleas Court, not a benefit provided by the County.

Tuesday, August 23, 2005

Commonwealth Court Holds W.C. Security Fund Is Not Subject to Penalties

The Commonwealth Court held in G. Luvine v. WCAB (Erisco Industries) that a penalty may not be awarded against the Workers' Compensation Security Fund. The Court stated the Board was correct to apply the case of Chiconella v. Workers' Compensation Appeal Board (Century Steel Erectors, Inc.), 845 A.2d 932, 935 (Pa. Cmwlth. 2004), which held the Subsequent Injury Fund is not subject to penalties. The Court reasoned that the two funds are not "insurers" under the Act because of their limited purpose and the fact they are not included in the statute's definition of "insurer".

Thursday, August 18, 2005

Dismissal For Failure To Prosecute May Be With Prejudice Without WCJ's Statement of Same

In A. J. Clayton v. WCAB (Carpentry Concepts, Inc.) the Claimant did not prosecute his case in three hearings, and did not show up at the second or third hearing. Claimant's counsel didn't show up at the first or third hearing. Although the WCJ's dismissal for failure to prosecute did not state the dismissal was with prejudice, the Board made this determination when it affirmed the WCJ.

The Commonwealth Court affirmed, including the determination of prejudice. The Court primarily relied on the nonappearance without excuse of Claimant and Claimant's counsel at the last hearing.

Wednesday, August 17, 2005

Injured Worker Poem

The Writer's Almanac featured a poem this morning entitled "No Work Poem #1" by Virgil Suarez. You can read the poem or listen to Garrison Keillor read the poem at the August 17, 2005 edition of the Writer's Almanac. On this archive page, scroll down to get to the August 17 edition.

Saturday, August 13, 2005

Commonwealth Court Upholds Grant Of Attorneys Fees Where Employer Presented Some Quantum Of Evidence The Injury Did Not Occur

In Northwest Medical Center v. WCAB (Cornmesser) benefits were granted for a back injury. The Commonwealth Court dismissed the Employer's bases for appeal as follows:

"In cases where the causal connection is obvious, medical evidence of causation is not necessary. Kensington Manufacturing Company v. Workers' Compensation Appeal Board (Walker), 780 A.2d 820 (Pa. Cmwlth. 2001). A causal connection is obvious where an individual is doing an act that requires force or strain and pain is immediately experienced at the point of force or strain. Gartner v. Workers' Compensation Appeal Board (Kmart Corporation), 796 A.2d 1056 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 572 Pa. 713, 813 A.2d 846 (2002)."

The WCJ has the power to accept the Claimant's testimony as credible. The WCJ thereby rejected the inference that the injury did not occur as the Claimant stated. To support this inference, the Employer relied on the fact the Claimant presented no medical evidence and testimony indicating the Claimant initially forgot a prior injury and altered a medical form (the WCJ accepted the Claimant's explanations).

The Court nevertheless upheld the grant of attorneys fees for unreasonable contest. The Court stated: "As stated in Bells Repair, absent some evidence to contradict or challenge the claimant's allegations that he suffered a work-related injury, a bald credibility challenge to an unwitnessed work related injury is insufficient to show a reasonable contest."

The Court could only have reached this conclusion by concluding the evidence the Employer relied on to establish the inference the injury did not occur was not sufficient evidence upon which a reasonable person could base a finding of fact. The Employer should lean toward clear and convincing evidence (whether or not found credible) to support a finding of reasonable contest.

Another important holding:

Where, as here, medical bills have not been submitted in the proper form, the remedy is to remand the matter to the WCJ. AT&T v. Workers' Compensation Appeal Board (DiNapoli), 728 A.2d 381 (Pa. Cmwlth. 1999).

Sooner or later the adjuster must investigate and respond to the unpaid bill information the Claimant provides.

Tuesday, August 09, 2005

Supreme Court Remands AWW / Maternity Leave Case

The Supreme Court granted the Claimant's Petition for Appeal in Rebel v. WCAB (Emery World Airlines #150). In this case, the Commonwealth Court held the Claimant remained "employed" and subject to the Section 309(d) average weekly wage calculation, even though there was a gap in wages due to the Claimant's maternity leave. March 16, 2004 post

The Supreme Court remanded the case to the Commonwealth Court for reconsideration in light of Hannaberry HVAC v. W.C.A.B., 834 A.2d 524 (Pa. 2003), and Colpetzer v. W.C.A.B., 870 A.2d 875 (Pa. 2005). The economic reality of the Claimant's pre-injury earning experience might lead the Commonwealth Court to conclude the average weekly wage must be calculated by some other method because the occurrence of maternity leave in the prior year has no relevance to the Claimant's earning potential in the following year. Depending on the facts, the Claimant may also have been incapable of performing services for valuable consideration, and therefore could not have been "employed".

Wednesday, July 13, 2005

Insurance Journal Article on Pennsylvania Legislation

Insurance Journal has an article discussing two workers compensation bills that moved this session in the Pennsylvania General Assembly.

Bureau Publishes Proposed General Rules and Rules For Vocational Experts

Proposed amendments to the general regulations of the Bureau of Workers Compensation were published Saturday. These regulations discuss forms, employer posting and reporting requirements and there is a section on computation of time. The Proposed Rulemaking also includes regulations regarding vocational experts in response to Act 53 of 2003.

Saturday, July 09, 2005

Commonwealth Court Holds Only Post Injury Increase In Self-Employment Earnings Can Be Basis For Modification or Suspension of Benefits

In S. Weissman v. WCAB (Podiatry Care Center, P.C.) the Claimant had substantial pre-injury wages from the time of injury employment and substantial earnings from pre-injury self employment. He was able to continue self-employment after the injury. Excluding his self-employment earnings from his Average Weekly Wage, but using them in a partial disability calculation would have resulted in a suspension of benefits.

The WCJ concluded it was fair to award a modification of benefits only on any increase in self-employment earnings after the work injury. The Board reversed and required the WCJ to suspend benefits. On appeal to the Commonwealth Court, the Court reversed the Board and endorsed the reasoning of the WCJ.

The Court recognized the Employer would receive a windfall in this scenario when the Claimant was able to continue substantial self-employment. Based on Colpetzer v. Workers' Comp. Appeal Bd. (Standard Steel), ___ Pa. ___, 870 A.2d 875 (2005)(Colpetzer II), the Court held the "economic reality" of the Claimant's pre-injury earning experience must be considered (quotes in original). The Court stated Colpetzer II addresses the proper manner of calculating a claimant's AWW when his employment situation was not specifically addressed by the statute, and that is to make a calculation based on "the economic reality of a claimant's recent preinjury earning experience." Triangle Bldg. Ctr. v. Workers'? Comp. Appeal Bd. (Lynch), 560 Pa. 540, 746 A.2d 1108 (2000)

The Court endorsed the solution of the WCJ and remanded for modification of benefits based only on the increase in the Claimant's self-employment earnings.

Articles on Proposed Workers' Compensation Reforms

Northeast Pennsylvania Business Journal has an article introducing a series workers' comp. reform. The article begins with an interesting discussion of the history of the Act. There are comments on needed reforms from employers, insurers and unions.

A second article specifically discusses proposed changes to IREs, the period for treatment with a panel provider, utilization reviews and "overpayment recovery".

There is an article summarizing other proposed changes and an article on how municipalities are affected by workers' compensation costs.

Wednesday, July 06, 2005

Supreme Court Grants Petition For Appeal on Job Availability When Claimant Has Relocated

In Motor Coils MFG/WABTEC, v. WCAB (Bish) the Employer offered a suitable job with the Employer to the Claimant, who had moved to Oklahoma. The reasons for the Claimant's move were reasonable. The Employer had downsized her and her husband prior to the offer, and he found work in Oklahoma at almost twice what he was making for the Employer.

Section 306(b)(2) provides, however, that "Earning power shall be determined by the work the employe is capable of performing ... If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply..."

The Commonwealth Court noted this was an actual job offer, and cited several cases in which the Court has held the criteria for a job offer under Kachinski still applies. One of these criteria is that the offered job must be within reach of the Claimant's residence.

The Supreme Court granted the Employer's Petition for Appeal. It does seem inconsistent that had the job been located only within the scope of a labor market survey, suspension would have been granted. The question is whether the Employer must go through the exercise. There is no requirement to do so during incarceration, and Smith v. W.C.A.B. (Dunhill Temporary Systems) 725 A.2d 1285 (Pa. Cmwlth. 1999) held it would be "irrelevant and fruitless" to establish a change of condition or job availability where the Claimant joined the Peace Corps and moved to Africa.

Update: The W.C.A.B. affirmed my decision in a case where the Claimant moved to New Zealand. A prior decision denying termination found the Claimant was able to work with restrictions. The Employer requested suspension on the basis that a labor market survey conducted in Pennsylvania would be "irrelevant and fruitless" in the words of the Commonwealth Court in Smith. I granted suspension on this analysis and the Board affirmed.

However, there may be situations where the Employer will have to go through the exercise. In Bish, the modified duty job was not available on the open labor market. In my case, the Claimant did not have a job in New Zealand, like the Claimant did in Smith. It is the Employer's burden to show relevant jobs exist that are suitable to the Claimant given the Claimant's physical capabilities, education and experience.

Thursday, June 30, 2005

Social Security Old Age Benefits Are "Received" Under Section 204(a) on Date Of Eligibility and Application

In Pittsburgh Board of Education v. WCAB (Davis) The Commonwealth Court held the Employer was not entitled to an offset for the Claimant's Social Security old age benefits when the Claimant applied for benefits prior to his work injury but received his first check (including benefits back to the date of application) after the injury.

Workers' Compensation TV and Radio on the Web

The Legal Talk Network is offering a show on workers' compensation matters hosted by Attorney Alan S. Pierce of Massachusetts. Shows on sick building syndrome and ethical considerations are available for listening or download at Legal Talk Network.

Law Journal TV continues to offer webcasts of its shows from WFMZ-TV 69 in Philadelphia. About every fourth weekly show is on a workers' compensation topic.

Wednesday, June 29, 2005

Commonwealth Court Holds Attorney Fees For Unreasonable Contest Are Not Automatic When A Penalty Is Granted

In B. Bates v. WCAB (Titan Construction Staffing, LLC) the Commonwealth Court expressly overruled its holding that a finding of a violation of the Workers' Compensation Act mandates the imposition of attorney's fees for unreasonable contest. Hoover v. WorkersÂ? Comp. Appeal Board (ABF Freight Systems), 820 A.2d 843, (Pa. Cmwlth. 2003), overruled on other grounds by Snizaski v. WorkersÂ? Comp. Appeal Board (Rox Coal Co.), 847 A.2d 139 (Pa. Cmwlth.), alloc. granted, ___ Pa. ___, 862 A.2d 582 (2004). The Court stated the Employer has the right to establish a reasonable basis for contest in any case.

In Hoover, the issue was the conflict between the thirty day requirement to pay and the Board regulations that gave the Board more than thirty days to rule on supersedeas. The WCJ granted a penalty of 10% rather than the requested 50% on payments of over 85,000.00 that were only (arguably) a few days late. The WCJ found a reasonable contest because the effect of the Board regulations on the Employer's duty to pay was unsettled at the time. The Commonwealth Court affirmed the penalty and further held that due to the Employer's violation of the Act I erred as a matter of law in failing to award attorneys fees to the Claimant.

In the Bates case, the Claimant requested a penalty because SWIF paid him biweekly rather than weekly, as he was paid on the job. The WCJ awarded a reduced penalty of 10% rather than the 50% requested on this, what the WCJ determined to be a violation of the Act. The WCJ recognized, however, and explained that reasonable minds could differ on this issue and the WCJ found a reasonable contest. The Commonwealth Court agreed the contest was reasonable based on the genuine issue of law and on the basis the WCJ awarded less than the 50% requested.

Accordingly, counsel fees for unreasonable contest will be awarded only where the Claimant asserts a reasonably clear violation of the Act and requests an appropriate penalty.

This raises the issue of whether any penalty between 10% and 50% can be granted, since these are the only numbers the statute provides. I still may award 20%, 30% or 40%. Other Judges award only 10% or 50%.

The best practice would be to request the minimum 10% and amend the request in the course of litigation if a higher penalty seems warranted. Counsel could then seek guidance from the WCJ on whether the WCJ will consider numbers in between 10% and 50%.

Wednesday, June 22, 2005

Commonwealth Court Defines Competent Medical Records in Two Cases of Less Than 52 Weeks of Disability

In two decisions, City of Harrisburg v. WCAB (Palmer) and Joy Global, Inc. v. WCAB (Hogue) the Commonwealth Court reviewed awards of the WCJ made on medical reports. In both, the WCJ found credible evidence of a strain (of the knee and ankle respectively) and awarded benefits for the sequelae of these injuries.

In both cases, the Court began with the premise that a case involving medical expenses and less than 52 weeks of disability may be decided on medical reports under Section 422(c) of the Act. The Employers' challenges were to the competency of the evidence submitted by the Claimant in each case.

In Palmer, the WCJ credited the Claimant's medical evidence, even though in one instance the Claimant's physician stated the Claimant's knee condition was unrelated to the work injury. The WCJ rejected this as inconsistent with the doctor's other statements on the issue. The Employer's main argument was there was no medical opinion relating the Claimant's total knee replacement to the work-related strain. The Court found it was sufficient that Claimant's physician diagnosed worsening pain as a result of the injury and also stated unrelenting pain is an indication for knee replacement surgery.

In Hogue, the Claimant's medical evidence was only "Clinical Worksheet" forms prepared by a nurse at the panel provider's office. The Court held these were competent to support an award because they fit the definition of reports of "medical providers" as defined in Section 109 of the Act. The forms clearly addressed the injury. Any other discussion of the content of the forms goes to the credibility of the evidence, not the competence, according to Budd Company v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170, 180 (Pa. Cmwlth. 2004).

The Court did state in a footnote that Claimant's counsel fees in Hogue would not be awarded under Pa.R.A.P. 2744 regarding frivolous appeals. The Court stated the application of the provisions of Section 422(c) is an emerging area in workers' compensation law, citing Budd.

Tuesday, June 14, 2005

Commonwealth Court Holds WCJ's Findings of Fact Establish Collateral Estoppel

In D. Williams v. WCAB (South Hills Health System) the first WCJ granted a Termination Petition and found the Claimant did not have a herniated disk. The Claimant did not appeal. On a Reinstatement Petition, the second WCJ found there was a herniated disk and awarded benefits.

The Board and Commonweath Court reversed the second WCJ, holding the finding the Claimant did not sustain a herniated disk was final, e.g. the finding could not be revisited under the doctrine of collateral estoppel. This analysis was consistent with the holding in Gillyard v. WCAB (PA LCB), where the Court held a second WCJ could not adopt a lesser diagnosis than that accepted by the first WCJ to then terminate benefits.

I originally felt these holdings were inconsistent with J. Almeida v. WCAB (Herman Goldner Company). In that case, the Commonwealth Court held the Claimant does not have standing to appeal a WCJ's finding of fact (in fact, the exact same finding of fact, that the Claimant did not sustain a herniated disk). By holding the Claimant did not have standing to appeal, the use of the fact in a later proceeding would be a denial of due process.

However, even though the facts in this case are the same, the result on the first petition in this case would have given the Claimant standing to appeal. Termination was denied in the Almeida case. When termination was granted in this case, the finding of no herniated disk was essential and material to the judgement, and the Claimant would have had standing to appeal.

Similarly, Almeida will be able to argue a disk herniation occurred the next time a termination petition is filed against him, because the finding of no herniated disk was not essential and material to the denial of the Employer's request for termination in his first case.

WCRI Issues New Study on Return To Work

The Workers' Compensation Research Institute recently issued a study of Return-To-Work Outcomes of Injured Workers: Evidence from California, Massachusetts, Pennsylvania, and Texas. Nothing surprising, but the findings underscore several principles of managing return to work scenarios. Press Release

Monday, June 13, 2005

State Service Connected Disability Supplement Available When Workers' Compensation Benefits Are Offset For Receipt of Disability Pension

Section 5704(f) of the State Employees Retirement Code provides for a supplement for a service connected disability under which the Claimant is guaranteed to receive 70% of the Claimant's Final Average Salary in pension, workers' compensation (and social security, if applicable). In W. R. Gowden v. State Employees' Retirement Board the Claimant received workers' compensation benefits and his disability pension. After the Commonwealth took an offset for the pension, the Claimant's pension and workers' compensation benefits did not equal 70% of his Final Average Salary and he applied for the supplement.

The State Employees Retirement Board denied the supplement. They reasoned this would deprive the Commonwealth of the benefit of Section 204(a) of the Workers' Compensation Act. The Board also attempted to assert they would be entitled to a credit for the supplement, setting off a cycle at the end of which the Claimant would receive no workers' compensation benefits at all, only the supplement.

The Commonwealth Court held the Commonwealth clearly gets the benefit of Section 204(a) of the Act. It is an unrelated statutory provision which binds the State Employees Retirement System to pay the supplement. Furthermore, the Commonwealth Court stated the Commonwealth's second argument is not supported in the record. Counsel for the Board stated at oral argument SERS will not seek reimbursement for the supplement from The Office of Attorney General, the Claimant's Employer.

To assure a balance between the statutes, the Commonwealth Court held the Section 204(a) offset under the Workers' Compensation Act should be calculated without regard to the supplement the Claimant is entitled to under Section 5704(f) of the State Employees' Retirement Code.

Monday, June 06, 2005

WCJ Does Not Have Jurisdiction To Rule On URO When Provider Does Not Send Records

In County of Allegheny, et al. v. WCAB (Geisler) the Commonwealth Court held the WCJ does not have jurisdiction in an appeal from a URO based on the provider's failure to provide records. The Court observed that a provider could intentionally not respond to the records request and proceed to make its case before the WCJ, bypassing the URO process.

Under this ruling, a prospective URO will be required to recommence payment for treatment. Certainly there is no res judicata effect of the first URO, since the determination was not on the merits.

A provider that has an excuse for not supplying records should still appeal to the WCJ, but the WCJ can only enter an order that in a subsequent prospective URO the reviewer must review treatment back to the date of the original UR request.

Saturday, June 04, 2005

Commonwealth Court Holds Board Should Not Have Reduced Subrogation Credit And Extended Time For Repayment Based On Financial Hardship

In Monessen, Inc. v. WCAB (Fleming) the Board affirmed the WCJ's determination that the workers' compensation carrier could recover its subrogation lien from the Claimant's indemnity payments. The Claimant presented no evidence of financial hardship in the event of suspension of benefits. The WCJ entered a suspension of benefits for 241.38 weeks for recovery of the lien.

However, the Claimant asserted financial hardship before the Board. The Board, without taking any evidence, reduced the insurer's credit to $80.00, extending the period for repayment to 494.30 weeks.

The Commonwealth Court reversed the reduction of the credit, holding the Board had no authority in fact or in law to grant less than a complete suspension of benefits. The Court distinguished Fahringer, McCarty & Grey, Inc. v. Workers’ Comp. Appeal Bd. (Green), 529 A.2d 56 (Pa. Cmwlth. 1987) (en banc) stating both there was no factual evidence of hardship presented before the WCJ and Fahringer did not involve subrogation under Section 319, which the Court said confers an absolute right to immediate repayment.

Wednesday, June 01, 2005

Amounts Offset From Social Security By Workers' Compensation Benefits Are Included In Taxable Gross Income

In the T.C. Summary Opinion of the United States Tax Court in Flores V. Commissioner No. 2005-57, the Special Trial Judge held Section 86(d)(3) of the Tax Code requires an injured worker to pay income tax on the amount of a workers' compensation offset from social security disability benefits. The SSA-1099 provided by the Social Security Administration always shows both benefits received and the amount of a workers' compensation offset for the year. The tax Court held it was appropriate to consider the offset amount income.

The Court recognized the Claimant had to apply for social security disability to get a long term disability benefit, and of course the Court recognized workers' compensation benefits are not generally taxable. However, the Court identified legislative history that stated the purpose of section 86(d)(3) was to equalize the federal tax treatment of social security benefits in precisely this scenario.

This opinion is branded: PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b),THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE. However, there is no reason the same logic would not carry the day in the future. This is another consideration in the decision whether to apply for social security disability (when there is a choice).

Thanks to Ronald L. Calhoon, Esquire of Serratelli, Schiffman, Brown & Calhoon, P.C.

Issues In Creating Modified Duty Positions In Scranton

In Scranton, the City is attempting to bring back public safety workers on workers' compensation as greeters in City Hall. The Scranton Times has an article about the twists and turns so far with this plan.

Wednesday, May 25, 2005

Commonwealth Court Does Not Expand Wausau Holding To Eliminate Supersedeas Reimbursement Of Past Due Benefits

In Bureau of Workers' Compensation v. WCAB (Consolidated Freightways, Inc.) the Commonwealth attempted to expand the Commonwealth Court's holding in Wausau Insurance Companies v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 826 A.2d 21 (Pa. Cmwlth. 2003) to create a rule that when past due benefits are paid after an unfavorable ruling (and after a post-trial request for supersedeas is denied), the Employer's entitlement to supersedeas reimbursement is limited to benefits due after the date of the supersedeas request.

The Court rejected the Commonwealth's arguments. The request for supersedeas turns on information available to the Employer that payments it may make may be, upon review, not payable. Every dollar paid after the supersedeas request that was not, upon review, payable is subject to supersedeas reimbursement.

The Wausau case seemed to direct a different result because the Commonwealth Court denied reimbursement of sums the Employer could have known would be not, upon review, payable. Like in this case of reinstatement, the Employer in the Wausau case was defending a claim and was not paying when the IME indicated disability ceased. However, unlike in this case, the Employer in the Wausau case did not request supersedeas at the time the IME report came in. When benefits were paid without a supersedeas request on the record, the Employer was without the right of supersedeas reimbursement.

What is important here is the new standard of practice highlighted by the Wausau case which indicates the Employer must request supersedeas whenever evidence of a change of status comes up during litigation, even if the Employer is not paying.

Sunday, May 22, 2005

Supreme Court Grants Allocatur to Review Commonwealth Court's Resolution of Leased Truck Driver Issue

The Supreme Court granted allocatur in Bifalco v. WCAB (Hafer et. al.), an unreported Commonwealth Court case. The Commonwealth Court apparently ruled on a leased truck driver issue and another that sounds much more interesting.

The Court's Order:

AND NOW, this 11th day of May 2005, the Petition for Allowance of Appeal in the above captioned matter is GRANTED, as to the following issues:
Whether the Commonwealth Court erred in holding that petitioner motor carrier is respondent’s employer when it did not exercise the requisite control over respondent’s activities?
Whether the Commonwealth Court erred in holding that joint and several liability can be appropriate under the workers’ compensation liability scheme?

Friday, May 20, 2005

Pittsburgh Post-Gazette Article on Artificial Discs

The Pittsburgh Post-Gazette published an article on artificial spinal disks, with the pros from Dr. Howard Senter and the cons from Dr. William Donaldson.

Reading down to the bottom of the article, I feel sorry for the baboon who now has a wristwatch that nags him about lifting.

Thanks to WCJ Manager Persifor Oliver, Jr., for sharing the article.

Thursday, May 19, 2005

Costs of Litigation Should be Limited to Costs on Issue(s) on Which Claimant Prevails

In J. Jones v. WCAB (Steris Corp.) the Claimant prevailed in establishing a compensible injury. The WCJ credited the testimony of the Claimant's doctor that his lateral epicondylitis resulted from his work duties. The Claimant was not able to show he had restrictions when he was laid off. Only medical benefits were awarded. The Board affirmed the denial of disability benefits, but remanded for an award of costs of litigation. The Board reasoned the Claimant was successful in part.

The Claimant appealed to the Commonwealth Court on the disability benefit denial. The Court quashed the Claimant's appeal on the basis that the remand of the Board requires the WCJ not just to award the costs set forth in the WCJ's decision, but also to find that the costs were related to the issue on which the Claimant prevailed.

The costs were:

Medical Records
Hand, Microsurgery & Reconstructive $18.34
Hearing Transcripts
Sargent’s [$]98.15
Deposition Fee
D. Patrick Williams, D.O. [$]1,200.00
Deposition Transcript
Ferguson & Holdnack Reporting [$]140.50
Steffan & Stauffer Reporting [$]110.46
TOTAL $1,567.45

One hearing, two doctor's depositions (Employer's doctor testified the lateral epicondylitis was not related) and one set of medical records. Which might be unrelated to the issue of whether the lateral epicondylitis was work related?

The Court may have eliminated an incentive for the Employer to narrow the issues before the WCJ. Employers do apply pressure by keeping issues on the table, and the potential that Employers will not be assessed the costs of developing these issues in the Claimant's case in chief slightly encourages this behavior.

In this case, the Claimant almost certainly testified that he limited himself in the work he was doing. The Claimant might have sought a stipulation that the Claimant's supervisors were aware of this. The cost to the Claimant to develop this without a stipulation would be the transcript of a supervisor's testimony.

Assume the Employer correctly analyzed the disability issue to turn on the lack of a medical restrictions note. If the Employer has to reimburse all costs if it loses on the causal relationship issue, there is an incentive to enter into the stipulation. Under the Court's holding this incentive is eliminated.

Wednesday, April 27, 2005

Fall in Leased Parking Lot Not Compensable

In J. P. Ortt v. WCAB (PPL Services Corp.) the Commonwealth Court affirmed the WCJ and the Board which determined the Employe's fall in a leased parking lot was not compensable.

Workers' Memorial Day

April 28 is Workers' Memorial Day. Information and materials are available on the AFL-CIO web site.

Friday, April 22, 2005

After Retirement, Burden Shifts To Claimant To Show No Work Is Available Within The Claimant's Restrictions

County of Allegheny (Department of Public Works) v. WCAB (Weis) is a significant case on the receipt of workers' compensation benefits after retirement. Where the Claimant was unable to do the job he retired from, but was able to perform sedentary work, the Claimant had the burden to show he continued to seek employment to avoid a suspension of benefits.

The WCJ and Board denied the Employer's Petition for Suspension on the basis that the Claimant could not do his pre-injury job. There was no evidence of sedentary job availability. The WCJ, though not the Board, granted attorney's fees for unreasonable contest.

The Commonwealth Court cited Southeastern Pennsylvania Transp. Auth. v. Workmen’s Comp. Appeal Bd. (Henderson), 543 Pa. 74, 669 A.2d 911 (1995) for the proposition that the burden to show the Claimant remains in the labor market is on the Claimant. It was undisputed in the case that the Claimant did not seek any work, although he did testify he intended to "if they got my knee straightened out." The Commonwealth Court suspended benefits and affirmed the Board's finding of a reasonable contest.

The Dissent highlights that the majority's opinion suspended benefits even though the Claimant was only released to sedentary duty for two hours per day, and even though his retirement was a disability retirement.

This is interesting from a procedural standpoint. An Employer's Suspension Petition alleging the Claimant has removed himself or herself from the workforce basically becomes a rule on the Claimant to show cause why the Claimant's benefits should not be suspended. So long as there is evidence the Claimant is able to do some work, the Employer has a reasonable contest in filing such a petition.

Supreme Court Decision in Jeanes Hospital

The Supreme Court issued its decision in Jeanes Hospital v. WCAB (Hass), the Commonwealth Court case that held a Review Petition to add to the description of injury is barred after the three-year statute of limitations has passed. The Court noted the Claimant was treating for one condition she was seeking to add two days after the work injury. Another condition was not diagnosed until after three years had passed. The Court held Section 413(a) permits the WCJ to modify an NCP whenever it is shown that disability increased.

The court looked only at whether the Claimant met her burden to show the conditions were related to the work injury. One purpose of a statute of repose is to bar a claim which an employer cannot investigate because the trail has grown cold. In these cases, as soon as the Claimant gets a diagnosis and treatment, the employer is informed by the bill and medical report. At that point the employer, who unilaterally decides what description of injury is on the Notice of Compensation Payable, decides whether to deny the new diagnosis.

This really is an "if it ain't broke don't fix it" case. These review issues were not a problem until the Commonwealth Court decision in Jeanes Hospital.

Thursday, April 21, 2005

Two Articles on Spinal Disk Replacement

There have been several articles about the artificial disk approved by the FDA such as this one. However, a survey of 133 surgeons conducted at a meeting of the American Orthopaedic Association found that only 7 percent said they'd choose disc replacement if they had unrelenting low-back pain.

Tuesday, April 12, 2005

United States Supreme Court Case in Sullivan is Relevant to Burden to Prove Pension Offset is Appropriate

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, et al.,PETITIONERS v. DELORES SCOTT SULLIVAN et al., is the Supreme Court of the United States case which held there is no violation of due process when medical benefits go unpaid during the pendency of a utilization review.

The Supreme Court's analysis was that an employe is entitled to reimbursement of only "reasonable and necessary" medical expenses, so a property interest of the employe does not attach until the expenses are found "reasonable and necessary". In this manner the court distinguished this property interest from the property interest in wage indemnity benefits.

The Court holds wage indemnity benefits cannot be reduced without notice and a hearing:

"In Goldberg v. Kelly, 397 U.S. 254 (1970), we held that an individual receiving federal welfare assistance has a statutorily created property interest in the continued receipt of those benefits. Likewise, in Mathews, supra, we recognized that the same was true for an individual receiving Social Security disability benefits. In both cases, an individual’s entitlement to benefits had been established, and the question presented was whether predeprivation notice and a hearing were required before the individual’s interest in continued payment of benefits could be terminated. See Goldberg, supra, at 261—263; Mathews, supra, at 332."

According to these precedents, predeprivation notice and a hearing are required before the employer can take a credit for a pension benefit that starts after payment of workers' compensation benefits has commenced.

The Bureau Regulations instead impose the procedure of the filing a Notice of Benefit Offset with a twenty day grace period and requiring the Claimant to file a Petition to Review Benefit Offset in response. This procedure can not shift the burden to the Claimant. The Supreme Court holding requires a hearing and accordingly places the burden on the moving party, the Employer, to show it is entitled to an offset in an amount calculated consistent with the terms of the Act.

Monday, April 11, 2005

Commonwealth Court Explains When Permanent Does Not Mean Permanent

In N. Wieczorkowski v. WCAB (LTV Steel) the Commonwealth Court again held that permanent (injury) does not mean permanent when the Employer seeks to later terminate benefits. A Supplemental Agreement may provide that an employe's disability is permanent either to remove a public safety officer from entitlement to heart and lung benefits or, as here, in an agreed-upon commutation. The Commonwealth Court has held in the past that a Claimant's medical condition remains subject to review, even where permenant disability has been stipulated to.

In this decision the Court provided a clear frame of reference. When there is a question of permenancy of an injury such that further review would be precluded, the Court will first look back to the description of injury. If, for example, the injury is silicosis, permanent does mean permanent because medical science cannot presently reverse the disease process of silicosis. When the description of injury does not establish the condition is permanent under today's standards of medical science, the condition is subject to review and a finding of full recovery.

Tuesday, March 29, 2005

Commonwealth Court Holds WCJ Does Not Have Subject Matter Jurisdiction Over Employer's Petition To Find Work Injury Compensable

In MPW Industrial Services v. WCAB (Mebane), the Employer sought to have an after hours automobile accident adjudicated to have occurred in the course and scope of employment. The Employer did not use an NCP, because this would not collaterally estop the third party case. The Employer filed a Review Petition.

The WCJ found the Claimant was not misled by the form of the petition, had notice of the relief sought by the Employer, and had a full and fair opportunity to contest the basis of the Employer's assertion. Under Lake v. Workers' Compensation Appeal Board (Whiteford National Lease), 746 A.2d 1183, 1188 (Pa. Cmwlth. 2000), the WCJ entertained the Employer's petition and found the Claimant was in the course and scope of employment.

The Board and the Court held the WCJ did not have subject matter jurisdiction. Since an NCP was not issued, Section 413 of the Act did not give the WCJ the power to review the case. Furthermore, only the employe or the employe's dependents are permitted to file a claim under Section 410.

Monday, March 21, 2005

Commonwealth Court Holds Employer's Duty to Make Work Available Arises When Claimant Released from Incarceration

In Keys-Pealers, Ltd./Pealer's Flowers v. WCAB (Bricker) the Commonwealth Court reaffirmed the premise that the Employer cannot get a continuing suspension of benefits by referring jobs while the Claimant is incarcerated and ineligible for work release. When the Claimant was released, the Employer's obligation to show work availability arose again.

The Court noted the Claimant was incarcerated for workers' compensation fraud when he took other work without informing the Employer. The court did not discuss the holding in J. Burrell v. WCAB (Philadelphia Gas Works, et al.) and note modification/suspension should be granted based on the Claimant's earnings in the work upon which his conviction was based.

Friday, March 18, 2005

Dismissal "With Prejudice" is Within the Discretion of the WCJ

US Airways & Reliance Nat'l c/o Sedgwick Claims Mgmt Services v. WCAB (McConnell) held the WCJ has the discretion to control the WCJ's docket by requiring parties to comply with scheduling orders. Accordingly, it was within the WCJ's discretion to dismiss a claim "with prejudice" when the Claimant's ongoing delay was prejudicial to the Employer.

Tuesday, March 08, 2005

Labor and Industry Seeks Reversal of Commonwealth Court Holding That Employers Must Be Represented By Attorneys At Unemployment Compensation Hearings

In Harkness v. UCBR the Commonwealth Court accepted the Claimant's argument that the Employer was improperly represented by a non-attorney "tax consultant" in an unemployment compensation hearing. Based on the unauthorized practice of law by this individual, the case was remanded to the U.C. referee for proceedings consistent with the opinion. The Court also stated its holding should only be applied prospectively.

On behalf of Pennsylvania Governor Edward G. Rendell, Labor & Industry (L&I) Secretary Stephen M. Schmerin announced yesterday the Unemployment Compensation Board of Review has asked the Pennsylvania Supreme Court to consider reversing the Commonwealth Court's ruling. The reason given was that representation by attorneys instead of non-attorneys is unfair to Claimants and Employers and will create additional delay.

Tuesday, March 01, 2005

Claimant Not In Course and Scope of Employment When Going To His Car On Personal Errand

In F. Wright v. WCAB (Larpat Muffler, Inc.), the Claimant parked in the K-Mart lot across the highway from the Employer's premises, as usual. After he clocked in, he went back across the highway to retrieve parts he had purchased and wished to exchange. The Claimant was struck by a car while on this errand.

The Commonwealth Court analogized the case with the Sears employee injured while shopping on her lunch break and the K-Mart employee injured while acting as a good samaritan on her lunch break. While the Claimant was forced to be on the highway by the Employer's parking arrangements, the Claimant was not forced to be there by the nature of his employment or by any activity furthering the Employer's interests. Accordingly, the Court held the Claimant's claim was properly denied on the basis the Claimant was not in the course and scope of employment.

Where Valuable Pension Rights Are Forfeited Rather Than Delayed, Modified Duty Job Not Available

City of Philadelphia v. WCAB (Shanks) is another case where the City of Philadelphia sought to bring an injured firefighter and EMT back to a dispatcher position. The Claimant was 43, so he was not eligible for his firefighters pension at age 45. The dispatcher position offered the municipal pension plan. Under these circumstances, the Claimant would forfeit his firefighters pension eligibility if he returned to work in the dispatcher position.

In City of Philadelphia v. Workers' Compensation Appeal Bd. (Szparagowski), 574 Pa. 372, 831 A.2d 577 (2003) the Supreme Court said employees who had already retired under the firefighters plan had to return to work. Their return to work only delayed receipt of their vested benefits. The Commonwealth Court distinguished Szparagowski and said since the Claimant in this case would lose eligibility for the more financially favorable firefighters plan, the dispatcher job was not available.

Friday, February 25, 2005

Employer Successful in Obtaining Pension Offset Gets Credit, Not Supersedeas Fund Reimbursement

In City of Wilkes-Barre v. WCAB (Spaide), the Employer filed a review petition seeking a pension offset. When the offset was awarded, the Employer sought supersedeas reimbursement of credit that accrued during the litigation. The WCJ granted the request, but the Board and Commonwealth Court reversed. The Court held supersedeas reimbursement can be granted only for termination, suspension or modification awarded under Section 413.

The Court also stated the Employer would receive a double recovery if supersedeas fund reimbursement was granted. Accordingly, the Employer must be entitled to recover the credit that accrued during litigation.

Commonwealth Court Holds Order to Attend Vocational Evaluation is Interlocutory and No Record is Required

In F. Swartz v. WCAB (Cheltenham York Road Nursing & Rehabilitation), the Commonwealth Court considered whether a WCJ must hold an evidentiary hearing and make a finding that a vocational expert is qualified before sending the Claimant to a vocational interview. The WCJ ordered the Claimant to attend without making a record on the vocational expert's qualifications, and the Board affirmed.

The Commonwealth Court analyzed whether the WCJ's Order was interlocutory, and held that it was. The Order was not considered a final order, and the Claimant was entitled to preserve his objections to the qualifications of the vocational counselor in any future litigation.

For these reasons, the Court did not feel there was any risk to the Claimant.

There was no discussion of whether actual job referrals were to be made to the Claimant. In this circumstance, Claimant's counsel will sometimes argue there is risk to the Claimant from working with an unqualified vocational counselor.

Wednesday, February 16, 2005

Interview with Pennsylvania Insurance Commissioner Says Act 44 Worked

On the heels of the Legisative Budget and Finance Committee report stating the Act 57 reforms aren't working, Insurance Commisioner Diane Koken stated the Act 44 reforms have worked. She credits the 1993 Act with a 15 per cent reduction in loss costs.

Sunday, February 13, 2005

Commonwealth Employee Injured on the Job Cannot Sue Another Agency of the Commonwealth

In Kincel v. Comm. of PA, DOT, et al. the Commonwealth Court ruled on an issue of first impression -- whether an injured employee of the Commonwealth could sue a Commonwealth agency other than his employing agency for an injury sustained on the job.

The case involved a Pennsylvania State Police officer that was injured by a hazardous condition on a highway when he was investigating an accident. The trial court dismissed PennDOT's motion for summary judgment on the basis that PennDOT and the State Police are separate agencies of the Commonwealth.

The Commonwealth Court reversed and granted PennDOT's motion for summary judgment. The Court distinguished the exclusive remedy of the Workers' Compensation Act from other statutes or doctrines in which agencies of the Commonwealth can be treated differently. The Court said the Claimant's employer is clearly the Commonwealth, and it and all of its agencies are immune from suit.

Thursday, February 10, 2005

Commonwealth Court Restates Burden to Set Aside Compromise and Release Agreement

In Farner v. WCAB (Rockwell International) the Commonwealth Court reviewed its recent decisions on a Claimant's burden to set aside a compromise and release agreement. The Court relied upon the en banc view that where collateral estoppel prevents a finding the Claimant did not understand the agreement, the agreement cannot be set aside.

Tuesday, February 08, 2005

Workers' Compensation Report of Legislative Budget and Finance Committee Posted

House Resolution 660 of 2004 directed the Legislative Budget and Finance Committee of the Pennsylvania General Assembly to report on Pennsylvania's Workers' Compensation System as Compared to Nearby States. Costs and procedures were reviewed. The Committee's Report is now available.

The recommendations ranging from getting back in touch with the Medicare fee schedule to eliminating the Workers' Compensation Appeal Board will certainly be the subject of proposed legislation. In reviewing the Summary, I intuitively question the analysis (attributed to the Workers' Compensation Research Institute) that the 1996 Act did little substantively to address litigation, attorney involvement and adjudication delays. Something has reduced the volume of litigation, and I agree with Judge Torrey's many articles concluding C&Rs are a major factor. However, proposed legislation can be evaluated on its own merits.

Wednesday, February 02, 2005

Penalty Petition Available On Line

Click on the Workers' Compensation Quick Links here or at the left to access the on-line Penalty Petition. It is under For Businesses & Organizations: Claim Information: Electronic Submissions.

Thursday, January 20, 2005

Appeal Granted in RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton)

The Supreme Court granted the Claimant's Petition for Allowance of Appeal in the RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton) case. The issue in the case was whether a supervisor's pattern of harassment in the form of feigned homosexual advances was an abnormal working condition. The Commonwealth Court reversed the WCJ's finding that the Claimant established an abnormal working condition. May 25, 2004 post

Wednesday, January 19, 2005

Presentation at Joyner Sportsmedicine Institute -- February 1, 2005

On February 1, 2005 at 7:45 a.m. I will present "Workers' Compensation Law Update" at Joyner Sportsmedicine Institute in Roaring Spring, Pennsylvania. The presentation will inform employers' representatives about current workers' compensation procedure and new case law relevant to employer handling of workers' compensation cases.

Tuesday, January 11, 2005

Commonwealth Court Relies on Finding of Fact to Establish Collateral Estoppel

In Gillyard v. WCAB (PA LCB) a second termination petition was at issue. The WCJ accepted the Employer's medical evidence of full recovery and granted termination. The Board affirmed. The issue on appeal was whether the opinion of full recovery was competent.

Findings of fact in the prior termination petition were relied upon by the Commonwealth Court to establish the Claimant's diagnosis. With that diagnosis, The Court reversed the decision of the WCJ and Board. The Court stated the Employer's medical witness did not offer an opinion of full recovery from the diagnosis of the first case.

The dissent highlighted the WCJ's findings that reconciled the testimony of the Employer's witness with the diagnosis in the first case and established full recovery.

The holding is inconsistent with J. Almeida v. WCAB (Herman Goldner Company) in which the Court held findings of fact are not reviewable. If a finding of fact is not reviewable, due process is denied and the fact cannot be a basis for collateral estoppel. March 16, 2004 post.

Thursday, January 06, 2005

Commonwealth Court Case on Claimant's Burden for Reinstatement

In Bailey v. WCAB (US Airways) the Claimant's benefits were suspended upon his return to work. He elected to not perform overtime, and he filed a reinstatement petition with support from his physician for a forty hour per week restriction. The Employer presented medical evidence the Claimant could perform the overtime, but with pain.

In the findings of fact reproduced by the Court, the WCJ found the Claimant declined overtime for personal reasons, implicitly accepting the opinion of the Employer's expert. The Court affirmed the decision of the Board and WCJ which held the Claimant did not meet his burden to show a worsening of condition.

OR Live to Present Streaming Broadcast of Disc Neucleoplasty

On January 14, 2005 at 4:00 p.m. OR Live will present a live internet streaming video presentation of a Disc Neucleoplasty. The procedure is a minimally invasive treatment for contained herniated discs, according to a press release of the manufacturers of the devices for the procedure. Dr. Peter Gerszten of UPMC in Pittsburgh will perform the procedure.