SWMS Associated With Cancer

The International Agency for Research on Cancer, the cancer arm of the World Health Organization, will designate overnight shift work as a probable carcinogen according to a Pittsburgh Post-Gazette article. Judge David Torrey identifies the 1998 case of Met. Ed. v WCAB, 718 A2d 759 (Pa. 1998) as the Supreme Court case which previously held shift work maladaptation syndrome is not a compensible injury.

Report From National Workers’ Compensation and Disability Conference and Expo

Human Resource Executive Online summarizes a discussion from the National Workers’ Compensation and Disability Conference and Expo about outcome based workers’ compensation management. The panelists are all names Pennsylvania workers’ compensation practitioners will recognize.

NIOSH Guide: Simple Ways To Prevent Musculoskeletal Injuries in Construction

Safety Online Article

NIOSH .pdf materials

Furlough Benefits Are Not Severance Benefits

In G. Kelly v. WCAB (US Airways Group, Inc.) the Commonwealth Court reversed the opinion of the Board and WCJ that furlough benefits are severance benefits for which the Employer is entitled to a credit under Section 204(a) of the Act. The Court applied a plain language analysis.

L&I Offers Policy Search Via Internet

Information on workers compensation coverage for Pennsylvania employers is available at PA Employer WC Insurance Info on L&I's web site. The search will show the current insurance carrier and the coverage history.

Commonwealth Court Holds Expense Reimbursement Should Be Included in AWW

In T. Lennon, Dec', et al. v. WCAB (Epps Aviation, Inc.), the Claimant, an airplane pilot, received expense reimbursement for board and lodging from his employer. Claimant’s Counsel argued these amounts should be included in the average weekly wage calculation under Section 309(e) of the Act on the basis that they represent payments for board and lodging.

The WCJ denied the request to include reimbursed board and lodging expenses. The rule prior to this case was that board and lodging expenses are included in the average weekly wage only when a daily or weekly advance is paid to the claimant. These are reimbursements made under a nonaccountable plan and are therefore wages subject to withholding and employment taxes. Expense reimbursements paid to an employee under an accountable plan are exempt from withholding and employment taxes, and under the prior rule these were not included in the AWW.

The Board affirmed the WCJ’s decision, but the Commonwealth Court reversed. The Court stated according to the plain language of the statute, these amounts are includable in the average weekly wage. If there are policy considerations underlying the prior rule, the statute should except board and lodging reimbursement.

Commonwealth Court Reinforces Principle That Average Weekly Wage Calculations Should Be Made According To The Act’s Provisions.

In Lahr Mechanical, et al. v. WCAB (Floyd) the WCJ accepted the Claimant’s testimony about his expected wages and hours to make a Section 309(d.2) average weekly wage calculation. The Claimant testified he expected the prevailing rate. The Claimant was actually paid at three different rates: local, prevailing and overtime.

On appeal by the Employer, the Board averaged the Claimant’s rates. This resulted in a slightly lower AWW than the one found by the WCJ.

The Court reinstated the findings of the WCJ. Recent cases have allowed average weekly wage calculations outside the framework of the Act’s provisions, but the preferred disposition is to make findings of fact that allow a calculation within the framework of Section 309, as the WCJ did in this case.

Article Reporting Medicare Delays in New Jersey Workers’ Compensation Settlements

This Star-Ledger article reports on the history and development of CMS reviews of workers’ compensation settlements and the delays in processing these reviews. It is a very complete overview of the issue.
Thanks to WCJ David Torrey

Elizabeth Crum Elected President of IAIABC

Liz Crum, Deputy Secretary of Compensation and Insurance, was elected President of the International Association of Industrial Accident Boards and Commissions. The IAIABC’s mission is to advance the administration of workers’ compensation systems throughout the world through education, research, and information sharing.

Commonwealth Court Allows WCJ to Review Description of Injury Without Review Petition

In Cinram Mfg., Inc. & PMA Group v. WCAB (Hill), the Claimant had a herniated lumbar disc as early as 2000. When the Claimant had a work injury in March of 2004, the Employer described the injury as a lumbar strain. The Employer later filed a Termination Petition, alleging the lumbar strain had resolved.

The WCJ accepted the testimony of the Claimant’s expert that the March 2004 injury resulted in a significant change in the Claimant’s imaging study and symptoms. The WCJ concluded the Claimant’s herniated lumbar disc was either caused or materially aggravated by the March 2004 work injury, and denied the Termination Petition.

The Claimant did not file a review petition to expand the description of injury. The Employer argued on appeal that the Claimant’s expert’s opinion was incompetent. The Board and the Court rejected this argument.

The Claimant’s failure to file a review petition is harmless error so long as the WCJ places the burden on the Claimant to prove the nature of the injury beyond the insurer’s description. According to the WCJ’s credibility findings in this case, the record established the Claimant met his burden.

It is better practice, however, to file appropriate review petitions. These memorialize diagnoses for the medical experts to comment on, ensuring due process. The filing of a review petition also guides the WCJ to properly analyze the description of injury.

Commonwealth Court Holds WCJ May Not Decide Termination Petition After Full C&R

In Bureau of Workers' Compensation v. WCAB (US Food Service) the Commonwealth Court held the Employer could not get a post C&R decision on a pending termination petition and proceed to request supersedeas reimbursement.

The Court distinguished the present case from the Optimax case, holding a C&R is a final resolution of a case unlike the stipulation the parties entered into in Optimax. The Court also distinguished the present case from those in which the parties specifically reserved issues in their C&R agreements. However, the Court finalized its reasoning in a way that suggests all post C&R action of the WCJ is invalid, whether the parties reserve rights or not.

The Bureau's argument focused on the fifth element of proof for supersedeas reimbursement, that "in the final outcome of the proceedings it is determined that such compensation was not, in fact, payable." The Court held: "The hallmark of a compromise and release is finality. As we said in Stroehmann, 'we believe that the legislature intended that a C&R should be on equal footing with civil settlements, which are based on a public policy that encourages settlements and stresses finality.' 768 A.2d at 1196. Thus, the C&R, as the final agreement between the parties, was the 'final outcome of the proceedings' under Section 443 of the Act." The Court held it was therefore error for the WCJ to decide the termination petition in this case.

The Court's opinion is difficult to assimilate. The purpose of the "final outcome of the proceedings" language is to provide that an application for supersedeas reimbursement may not be made while an appeal is pending. There is no "final outcome of the proceedings" until the appeal period expires without an appeal having been filed.

In this case, twelve days after the C&R decision, the WCJ issued a decision granting termination. Because this was within the appeal period, it was prior to the "final outcome of the proceedings." Optimax should still control. Without knowing whether either party would appeal the decision on the C&R, the WCJ issued a decision on evidence prior to and independent of the stipulation underlying the C&R (as reasoned by the WCJ who granted the Petition for Supersedeas Reimbursement).

The obvious steps for the practitioner are to only enter into a C&R of future liability, to reserve the right to a decision on prior evidence independent of the stipulation underlying the Compromise and Release, and, if treatment is minimal, consider leaving the medical open for a limited period of time that will exceed the time frame for the WCJ's Order on the pending termination petition.

Supreme Court Grants Appeal on Whether Penalties Can Be Assessed In Workers' Compensation Security Fund Case

In Constructo Temps and Workers' Compensation Security Fund v. WCAB (Tennant), the Commonwealth Court held the Workers' Compensation Security Fund and the Employer are not responsible for penalties according to the provisions of the Act. The Supreme Court has granted the Claimant's petition for allowance of appeal. The Claimant framed the issues as:

(1) Whether an order prohibiting the assessment of penalties against the
Workers’ Compensation Security Fund for its failure to pay reasonable
and necessary medical expenses incurred by the claimant violated the
humanitarian purposes of the Workers’ Compensation Act?

(2) Whether an employer may be assessed a penalty for its failure to pay
reasonable and necessary medical expenses incurred by the claimant
where the penalties imposed resulted from the conduct of the
Workers’ Compensation Security Fund?

Commonwealth Court Holds Employer May Take Section 204 Offset Only After Receipt of LIBC-756

In Maxim Crane Works v. WCAB (Solano) the Claimant was injured on October 10, 2000 and was terminated by the Employer in December of 2000. In January of 2003, the Claimant applied for social security old age benefits. An agreement for compensation was entered into on April 4, 2003, and a supplemental agreement was entered into on September 12, 2003.

34 Pa. Code §123.501provides:
An insurer shall notify the employe of the employe's
reporting requirements under sections 204 and 311.1(a)
and (d) of the act (77 P.S. §§ 71 and 631.1(a) and (d)). In
addition, the insurer shall provide the employe with the
forms required to fulfill the employe's reporting and
verification requirements under section 311.1(d) of the act.

It was on June 6,2005 when the Employer first sent Form LIBC-756 to the Claimant. The Claimant reported his social security old age benefit. The Employer issued a Notice of Benefit Offset on August 3,2005 providing for a future credit and recoupment of a credit accrued during the past 14 months.

The Claimant challenged the recoupment of a past credit by filing a petition to review benefit offset. The WCJ denied recoupment prior to June 6,2005. The Board and Court affirmed.

The Court stated the Employer has no right to an offset until it complies with 34 Pa. Code §123.501. "While Claimant does owe a duty to report receipt of old age Social Security benefits, the regulations place the initial duty upon the employer or insurer to notify the employee of the reporting requirements and provide the employee with the proper forms." In addition, 34 Pa. Code §123.5(a) provides the Employer may take an offset only after receipt of LIBC-756

Employers are now limited to a section 204 credit only into the future and after receipt of LIBC-756, unless the Employer shows the Claimant provided inaccurate information on a prior LIBC-756. Taking an offset without receiving a LIBC-756 and/or taking recoupment of an accrued offset will subject the Employer to an assessment of penalties.

Superior Court Case on Standard of Review of Allocation of Third Party Settlement

In Urmann V. Rockwood Casualty, the Claimant and his wife received a third party settlement. The Common Pleas Court held a hearing and approved a proposed allocation of $50,000.00 to the Claimant and $250,000.00 to his wife for loss of consortium. The Superior Court affirmed the decision of the Common Pleas Judge. The Court held substantial evidence supported the Common Pleas Judge’s findings and conclusions.

The Employer was a "full participant" in the hearing, according to the Court. However, it is difficult for the Employer to develop a rebuttal case to the family’s claims of loss of consortium. Even if such a case is presented, the fact finder is a common pleas judge who is actually deciding either to approve the settlement or to put the case back on the county’s trial list.

Possibly for these reasons, the Employer reserved its argument on the fairness of the allocation for the Superior Court. However, the Court deferred to the fact finder. The Employer is left with the unsatisfactory remedy at the common pleas level.

If the allocation of settlement will be evaluated on substantial evidence rather than fundamental fairness, the workers’ compensation judge should be the fact finder on the allocation of the settlement. The workers’ compensation judge can hold a hearing in which the Employer is actually a party to the proceedings. Also, the workers’ compensation judge does not have an interest in whether the case settles or goes back on the county trial list.

Employer’s Counsel who wants a ruling on the allocation of a proposed settlement should file a Petition to Review Compensation Payable and advise the common pleas court that the Employer is pursuing its administrative remedy. Claimant’s Counsel should point out Urmann v. Rockwood Casualty and request a hearing from the common pleas court.

The Lens of Dispute Resolution Through Mediation

This Article by Stewart Levine gives a clear description of the complete cost savings of conflict resolution. This is another valuable resource for parties to understand the process and benefits of mediation.

Paper on Dueling Experts in Mediation

This paper written for an Australian alternative dispute resolution association discusses methods for a mediator to deconstruct polar opposite expert opinions.

Some of the methods involve a lot of cost such as bringing the experts together to discuss their opinions. In workers compensation we might apply this technique by discussing in the mediation what the experts might say if we brought them together.

This material would be useful for counsel to prepare their clients for mediation.

RAND Center for Health and Safety in the Workplace

Pittsburgh Tribune Review Article about recent appointment to Pittsburgh RAND Center for Health and Safety in the Workplace.

Utilization Review Must Name Actual Treating Physician

In Bucks County Community College v. WCAB (Nemes, Jr.), the Employer filed for utilization review of the treatment of a Dr. Files. The Claimant was actually being treated by Dr. Mercora, a physician of the same license and specialty of Dr. Files in the same group. When the utilization review was filed, the Employer did request review of all physicians under the same license and specialty.

The utilization reviewer went ahead and reviewed Dr. Mercora’s treatment and found it reasonable and necessary in part. On a petition to review the utilization review determination filed by the Claimant, the WCJ found the report was invalid and therefore the Employer did not meet its burden to show any treatment was not reasonable and necessary. The Board and the Court affirmed.

The Act and Regulations require that a health care provider under review must be an individual, not a hospital, corporation or group. Multiple physicians’ treatment cannot be reviewed under one request. Accordingly, the Court stated the Employer must file naming the correct treating physician for the utilization review to be valid.

The Mechanics of Biomechanical Low Back Pain

Interesting article on fatigue and recovery of the low back in lifting occupations.

Two disc replacement surgery. Press Release.

Supreme Court Grants Petition for Appeal in Knechtel

The Supreme Court granted the Claimant's Petition for Appeal in Marilyn Knechtel v. WCAB (Marriott Corp.). In the Commonwealth Court's decision, the Claimant's designated health care provider at the IME was limited to the role of obtaining a firsthand view of the exam process as a foundation for later rebutting in testimony the validity of the exam results. Post

Uninsured Employer Guarantee Fund Statement of Policy

The Bureau's Statement of Policy on the Uninsured Employer's Guarantee Fund is published at the Pennsylvania Bulletin site.

Forms: Claim Petition for Benefits from the Uninsured Employer Guaranty Fund and Uninsured Employer (LIBC-500) and Notice of Claim Against Uninsured Employer (LIBC-501) are available on the Downloadable Forms portion of the Bureau site.

PaTLA Amicus Curiae Briefs Available

PaTLA shares its Amicus Curiae briefs at this site. Several briefs in Workers' Compensation Matters appear at the bottom of the page.

Supreme Court Finds Abnormal Working Conditions in Harassment Case

In RAG (CYPRUS) Emerald Resources, L.P. v. WCAB (Hopton), Appeal of: Ronald A. Hopton, the Supreme Court reversed the Commonwealth Court's holding that the Claimant's supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant..." (WCJ finding) was not an abnormal working condition. The Commonwealth Court relied on Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996) to hold the Claimant's response was a subjective reaction to normal working conditions.

The Supreme Court concluded the Commonwealth Court "abused its discretion by not limiting its review to determining whether the WCJ’s factual findings were supported by the record and, instead, focusing on a brief section of testimony not included in the WCJ’s factual findings to support its own conclusion that Rossi’s comments were “normal in the mining industry.” " The Supreme Court went on to find aggravation of the Claimant's pre-existing PTSD was not a subjective reaction of the Claimant and resulted from abnormal working conditions.

Law.Com Article

Legal Newsline Article

Study Finding Long Term Use of Narcotics in Low Back Pain Cases is Suspect

A study from Yale University published in the Annals of Internal Medicine found long term effectiveness of opioids for low pack pain was not conclusive and abuse was reported in 24 per cent of cases.

A Judge's Perspective on Mediation

This article by Federal District Court Judge Dan Aaron Polster for the Ohio State Journal on Dispute Resolution provides an excellent summary of mediation. Judge Polster explains the benefits of mediation and discusses considerations for a Judge who will mediate a case that will go to trial before the Judge.

WCJs are the trier of fact, and Judge Polster doesn't believe a judge who is the trier of fact should mediate the Judge's own case. He reasons: "If statements (the parties) made to me regarding the facts of the case conflict with their trial testimony, I would be placed in the untenable position of either ignoring what I knew, or making findings based upon facts outside of the record."

Because a WCJ is a Judge under Article IV of the Constitution of Pennsylvania, and because the Act specifically grants investigative powers, a WCJ should never be in a situation where a conflict between the parties statements to the WCJ in mediation and the record testimony is unresolved. However, justice in the adjudication will come at the expense of breach of the confidentiality of the mediation by the Mediator/WCJ.

Under Act 147, a decision cannot be circulated until the case is mediated, except where mediation is futile. Mediation is futile only when no losing party could convince the Board that the case should have been mediated. It is not enough that the parties and Judge agree mediation seems futile. The Board has the benefit of 20-20 hindsight as to whether a party could have done better had they mediated. If no mediation was held, a decision could be vacated. The parties therefore should be prepared to mediate every case, and, as stated by Judge Polster, mediate as soon as is practical.