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.