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.