Tuesday, September 09, 2008

Proposed Amendments to Workers' Compensation Judges' Rules Published in Pennsylvania Bulletin

The proposed amendments to the Special Rules of Practice and Procedure Before Workers' Compensation Judges were published Saturday in the Pennsylvania Bulletin. The proposed regulations provide for electronic filings with the Bureau and the Board and include regulations consistent with procedures that have been put in place since Act 147 and Act 109 (dealing with support obligations).

Significant changes are the detailed procedure for withdrawal of appearance of counsel and a prohibition of WCJ's performing mandatory mediation in their own cases. A settlement conference with the adjudicating judge may still be conducted if all parties and the adjudicating judge agree.

Thursday, August 21, 2008

Commonwealth Court holds home health nurse is traveling employee from her home to patient's home

In L. Jamison v. WCAB (Gallagher Home Health Services) the Claimant worked as a home health nurse. She also worked for another home health service and a mortgage company. Gallagher Home Health Services (Gallagher) allowed the Claimant to pursue her other employment and personal errands during the work day. She was paid by Gallagher only for the time spent with a patient. She received mileage reimbursement when she left one patient's home to travel to another's.

The Claimant was injured in an auto accident on her way from her home to the home of Gallagher's patient. The WCJ found the Claimant was not in the scope of employment because she could be working for any employer on a given day. The Board affirmed, but the Commonwealth Court reversed. The Court stated the record showed the Claimant was going to the home of Gallagher's patient. If the record showed she was going somewhere else, there could have been an abandonment of employment, but that was not the case.

The Claimant's travel was necessary to provide in-home care, the Claimant did not have to report to the Employer's main office before or after the visit, and the Claimant had no fixed place of employment. Accordingly, she was in traveling employee status with Gallagher when she was injured while driving from her home to the patient's home.

Friday, August 15, 2008

Commonwealth Court holds IRE doctor must testify the Claimant has reached maximum medical improvement

In C. Combine v. WCAB (Nat'l Fuel Gas Distribution Corp) the Claimant underwent an IRE, which found a twenty per cent (20%) total body impairment resulting from a right knee injury. The Employer filed a Modification Petition.

The IRE physician admitted the Claimant has persistent swelling, medial laxity and discomfort following a partial knee replacement. The physician admitted a total knee replacement could improve the Claimant’s condition.

Most importantly, the physician testified he did not evaluate the Claimant to determine whether the Claimant reached maximum medical improvement. The doctor explained the nature of the examination would be different, and the doctor’s understanding was a finding of MMI was not necessary to complete an IRE under Pennsylvania law.

The WCJ accepted the premise that MMI did not need to be determined. The statute and regulations do not mention MMI. The WCJ granted the modification petition, and the Board affirmed.

The Commonwealth Court reversed. The Court looked to the AMA Guides, which state impairment ratings are to be performed when an individual is at a state of permanency. The Guides state this term is usually synonomous with MMI. The Court also stated an MMI requirement is consistent with the 104 week prerequisite and the six month waiting period between IREs [sic IMEs - see Section 306(a.2)(6)].

Counsel should anticipate the Court interpreting and valuing the provisions of the Guides.

Chapter 1.8 in the Fifth Edition provides impairment percentages account for basic activities of daily living, not including work, and further individual analysis of work activities is required to determine disability. Sound familiar?

Saturday, August 09, 2008

New York Times previews study of how parties fared when they rejected settlement and went to trial

A study of outcomes for parties who rejected settlement and went to trial will be published in the September Journal of Empirical Legal Studies. In this preview, the New York Times touches upon some of the issues that cause parties not to settle.
Overall, the study reported plaintiffs got less in 61% of cases, while defendants paid more in 24% of cases. In 15% of cases the result fell in the range between the last demand and the last offer. Randall L. Kiser, a co-author of the study, said the lesson for plaintiffs is to not view the defendant’s offer as half a loaf. The study results suggest defendants' offers are the full loaf or more.

Another interesting observation is that uninsured defendants have a higher error rate. Defendants won’t bankrupt themselves in a settlement, even if they know a verdict will bankrupt them. The graphic attached to the article shows the stakes were much higher in the cases where the defendant fared worse. It would be interesting to look at how the outcome was measured. If it doesn't continue to collection, even more plaintiffs are making bad decisions.

Friday, August 08, 2008

Commonwealth Court reaffirms standard for notice in occupational hearing loss claims

In Crompton Corporation v. WCAB (King) the Claimant filed a claim for occupationally induced hearing loss on April 2, 2004, and thus provided notice of the claim to the Employer. The Employer identified a new patient information sheet completed by the Claimant on May 7, 2002, on which the Claimant indicated to his physician he believed his hearing loss was work-related. The WCJ and Board nevertheless found the Claimant gave notice within 120 days of the date of injury.

The Court affirmed. The primary rule, as stated by the court in Socha v. Workers' Compensation Appeal Board (Bell Atlantic PA), 725 A.2d 1276 (Pa. Cmwlth. 1999) (Socha I), aff'd, 566 Pa. 602, 783 A.2d 288 (2001) (plurality) (Socha II) is that the Claimant must be informed by a doctor that he has a compensable work related hearing loss. In this case, the report establishing this was dated February 27, 2004. Furthermore, the Claimant continued to work and presumably his exposure continued. Accordingly, his date of injury would be April 2, 2004, the date of filing, pursuant to Section 306(c)(8)(ix) of the Act.

Monday, August 04, 2008

Centers for Medicare and Medicaid Services determines thermal intradiscal procedures are not reasonable and necessary

An Ortho Supersite article excerpted from the journal Spine states CMS proposes to issue a national non-coverage determination for thermal intradiscal procedures (TIPs). CMS’ review indicates the mechanism of the associated diagnosis – nonspecific chronic low back pain – as well as the mechanism of the treatment are uncertain according to the medical literature.

Commonwealth Court reverses Workers’ Compensation Appeal Board holding that Claimant’s disability began on first day off work

In Albert Einstein Healthcare v. WCAB (Stanford) the WCJ awarded benefits based on the testimony of the Claimant’s doctor that the Claimant was disabled while under his treatment. However, the Claimant did not start treating with the doctor until over a year after her last date of work. The WCJ decided benefits could only be awarded beginning with the doctor’s first evaluation.

The Board modified the WCJ’s decision and awarded benefits as of the first day off work based on the Claimant’s testimony. The Court reversed, holding where the causal connection between the work injury and disability is not obvious, medical testimony establishing the period of disability is required.

Saturday, July 26, 2008

Statute of Limitations Waiver and Workers’ Compensation

A Law.com article reports many companies are using and enforcing a waiver limiting statutes of limitations for employment claims to six months. The waiver is executed in the job application. The article refers to employment discrimination claims. The Pennsylvania Workers’ Compensation Act provides parties can’t alter the provisions of the Act except in collective bargaining.

The impact would be that the claimant would have to pursue claims during the first six months of treatment and recovery from the work injury. Although claimants typically waive employment law claims for minimal or no consideration as part of a compromise and release, they certainly would receive no consideration if these claims are barred.

Article on Introductory Joint Session in Mediation

Mediator Robert A. Steinberg recently published an article on opening statements in mediation with several tips for parties to interact with each other in joint sessions. This is particularly valuable given the current discussion suggesting more joint sessions should occur in mediation.

I have been using more joint sessions as opposed to caucuses. All the parties and counsel can put their heads together on the issues discussed. I don’t have to repeat information that needs to be shared, and I don’t run the risk of miscommunication.

Joint sessions are less comfortable for the parties. This article will help counsel and the client to ease this discomfort.

Thanks to Phyllis G. Pollack via Mediate.com Featured Blogs for reproducing this article.

Friday, July 18, 2008

Commonwealth Court Remands in Serial Termination Case

In M. Prebish v. WCAB (DPW/Western Center) the Commonwealth Court accepted the Claimant's argument that the Employer must show a change of condition to prevail in a serial termination petition.

The Employer's expert opined the Claimant's injured right knee was not different than the left knee with findings of preexisting arthritis. In the prior decision, the WCJ found the Claimant's symptoms were primarily right sided. The Employer's expert also had the benefit of a new diagnostic study and additional medical records. The Employer's expert ultimately concluded the Claimant was fully recovered from a strain that occurred at the time of the injury.

The Court nevertheless stated the WCJ could make a finding the Claimant's condition did not change materially since the first WCJ's decision based on the record. The Court stated it is "abundantly clear" a finding that the Claimant's condition changed is required, citing Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). The matter was remanded to the WCJ to make a determination on the existing record.

Sunday, July 13, 2008

Mediation Practice Well Represented in Blogs

Mediators have the ambition and the aptitude to produce very useful blogs on the subject. One place to sample this information is at The World Directory of ADR Blogs. Another is Mediate.com’s Mediate.com Featured Blogs

Thursday, June 26, 2008

Commonwealth Court Grants Reargument in Diehl

The Commonwealth Court granted the Respondent's petition for reargument and vacated the prior decision in T. Diehl v. WCAB (IA Construction, et al.). The case will be listed for reargument.

Thursday, June 05, 2008

New York Times Article on Back Pain and its Treatment

As part of its Special Section: A guided tour of your body
The New York Times assembled a few articles on back pain and its treatment.

As stated by Dr. Russell K. Portenoy, chairman of the department of pain medicine and palliative care at Beth Israel Medical Center in New York. “It’s good for the public to know how little we know.”

Other articles include “A Surgeon’s Own Back Story” This story will warm the heart of proponents of conservative care.

Links include Back Pain – Alternative Treatments from the National Institutes of Health Complimentary and Alternative Medicine Program and back exercises at back.com

Tuesday, May 20, 2008

Supreme Court Grants Appeal in Case Where WCJ Amended the Description of Injury Without a Review Petition

In Cinram Manufacturing, et al, Pets v. WCAB (Hill) the Supreme Court granted the Employer’s Petition for Allowance of Appeal.

The Employer is arguing the Claimant had to file a Review petition according to Jeanes Hospital v. WCAB (Hass), 872 A.2d 159 (Pa. 2005) and Commercial Credit Claims v. WCAB (Lancaster), 728 A.2d 902 (Pa. 1997).

The Employer filed a Termination petition alleging the Claimant was fully recovered from the accepted injury, a lumbar strain. The Employer’s doctor so testified. The Claimant’s doctor testified a herniated disc present at least four years prior to the injury was aggravated and the Claimant had not fully recovered from this condition. The WCJ accepted the Claimant’s doctor’s opinion.

The WCAB and Commonwealth Court analyzed this case on a substantial evidence standard.
However, the issue is really one of due process. The Employer was not able to defend where the Employer’s medical witness met the Employer’s burden and there was no Review petition at issue.

September 13, 2007 post

Tuesday, February 05, 2008

Commonwealth Court Remands In Modification Case Where Employer Provided Work Within the Claimant's Restrictions Then Took It Away

C. Rosenberg v. WCAB (Pike County) is a case of modification of benefits based upon a labor market survey. The Claimant is a corrections officer who suffered a knee injury. The Employer then placed the Claimant in a job the Claimant was capable of performing as a clerical worker with the Board of Elections. The Claimant was performing this job when the Notice of Ability to Return to Work was issued.

About a month after the Notice of Ability to Return to Work, the Claimant was terminated with the explanation that she was not expected to return to her regular duty position and the County does not provide permanent light duty positions. She was replaced in the Board of Elections with a newly hired person.

The WCJ granted modification in the case. The Claimant had some later jobs, evidencing earning power under Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works & Compservices, Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). However, the WCJ relied upon evidence of earnings in open jobs, not the earnings of jobs the Claimant actually held after leaving County employment. Accordingly, the Court held the case is controlled by South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002). The Court remanded for the WCJ to make a finding whether the Employer met its burden to establish it had no work the Claimant was capable of performing.

The record on remand may establish the Employer accommodated restrictions of the Claimant while performing the Board of Elections job. If the Claimant was unable to perform essential functions of the job, the Employer did not have to offer it to her. The job also could have been unavailable to the Claimant if a collective bargaining agreement required that she vacate the position. However, if the Claimant could have continued to work in the job but for the Employer’s policy decision to terminate her, the Employer should be prohibited from obtaining a modification of benefits by vocational expert testimony regarding open jobs.

Sunday, January 27, 2008

Injury Resulting from Horseplay Generally Compensable

In Sysco Food Services of Phila v. WCAB (Sebastiano) the Claimant was injured engaging in horseplay. While the question of whether the Claimant was an innocent victim remained unresolved in the mind of the Commonwealth Court, the Court noted the Claimant was in his regular work area and his actions, even if viewed in their worst light, were not so disconnected with his regular work duties for the Claimant to be considered, with respect to the employer, nothing more than a "stranger" or "trespasser."

The Court distinguished Johnson v. Workers’ Compensation Appeal Board (Union Camp Corp.), 749 A.2d 1048 (Pa. Cmwlth. 2000) in which the Claimant got in a fight after leaving his work area to talk with another employee about a non work-related matter. The Court also cited Judge Torrey’s treatise for the premise that violation of a work rule stating there is "no horseplay" will not make otherwise compensable horseplay injuries non-compensable.

Saturday, January 12, 2008

Largest Workers’ Compensation Rate Reduction in a Decade

The Pennsylvania Compensation Rating Bureau (PCRB) has proposed a 10.22 percent average reduction in workers’ compensation policy rates for 2008, according to a Pittsburgh Business Times Article. The recommendation will go to the Pennsylvania Insurance Department for approval.

On January 19, 2007 the PCRB recommended a 2.95 percent average increase.

In 2006, the PCRB recommended an average 8.5 percent reduction, which was reported to be the biggest decrease sought since 1997.

In 2005, the PCRB recommended a 2.89 percent average reduction, which was predicted to save employers $32.5 million.

Labor Market Survey May Be Done In Area Of Claimant's Residence Even If Out Of State

In H. Riddle v. WCAB (Allegheny City Electric, Inc.), the Claimant was injured in Pittsburgh, but had a residence in Wheeling, West Virginia and lived with his father at a nearby address in Ohio, where the Claimant held a driver’s license.

The Claimant’s benefits were modified based on a labor market survey focusing on Wheeling. The Claimant argued since he resides out of state, the labor market survey must be done in the usual employment area where the injury occurred, i.e. Pittsburgh, according to 306(b)(2) of the Act.

The Commonwealth Court applied the rule of statutory construction that the legislature could not have intended an absurd result. Where the Employer accommodates the Claimant in conducting the labor market survey, the results are valid.