Friday, October 30, 2009

Presentation at Central Pennsylvania Regional Business and Industry Expo

I will be in a panel presenting Workers' Compensation Update: What Employers Need to Know to Successfully Manage and Close a Workers' Compensation Claim. The workshop will be presented at the Central Pennsylvania Regional Business and Industry Expo at the Bryce Jordan Center on November 17 at 5:30 p.m. Central Pa. Expo Workshop Times

Sunday, October 25, 2009

Commonwealth Court Holds Claimant Cannot Receive 500 Weeks of Partial Disability For Two Injuries

In P. Reutzel v. WCAB (Allegheny General Hospital) the Claimant argued she could reinstate partial disability benefits from a prior injury when 500 weeks ran on her more recent injury. The Court held Section 306(b)(1) of the Act specifically limits the period of partial disability benefits to 500 weeks for any injury or its recurrence, regardless of any change in disability status. The WCJ and Board's denial of benefits was affirmed.

Saturday, October 24, 2009

Supreme Court Grant of Appeal in Diehl v. WCAB (IA Construction & Liberty Mutual)

The Supreme Court's grant of appeal in Diehl v. WCAB (IA Construction & Liberty Mutual) frames the issue as:

Whether the Commonwealth Court erred in its interpretation of 77 P.S. §551.2 by holding that respondents did not need to present evidence of job availability or earning power in order to change petitioner’s disability status from total to partial, and whether the court’s holding conflicts with Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005).

The Supreme Court said in Gardner the employer must follow the "traditional administrative process" when it misses the window to request an IRE of sixty (60) days following the expiration of 104 weeks of total disability paid. The Supreme Court directed that the Employer could not take unilateral relief, but had to give the Claimant notice and the opportunity to be heard. The Employer's burden is to present competent and credible evidence the Claimant received an IRE in accordance with the Guides. Employers have failed to prove the Claimant was at maximum medical improvement, a requirement of the Guides.

The Commonwealth Court first concluded the traditional administrative process could not simply be notice and the opportunity to be heard on the propriety of the IRE, but must also include the burden to show earning power. The Court then concluded the IRE provisions would be meaningless if an employer had to also show earning power to modify a Claimant's benefits to partial disability status.

The authority to conclude the employer must show earning power comes from the Guides. The Guides make it clear in their introduction that the whole person impairment is based on activities of daily living excluding work (emphasis in original). The Guides go on to give an example of an individual who has a 20% total body impairment and a 100% work disability.

It is clear the employer gets modification from total to partial based solely on the IRE when it is requested in the sixty (60) day window. The Supreme Court will tell us what the employer needs to do when it lets the window pass without requesting an IRE exam.

Thursday, October 22, 2009

Supreme Court Reverses Commonwealth Court Ruling That Labor Market Survey May Be Conducted in Claimant's Place of Residence Out Of State

The Commonwealth Court held in Riddle v. WCAB (Allegheny City Electric, Inc.) that it was appropriate to conduct a labor market survey in the area where the claimant resides out of state. The Court relied on pre-Act 57 case law for guidance. These cases held work should be identified in the place of the claimant's residence. Riddle Post

The Commonwealth Court holding recognized the employer increases its chance of prevailing on a modification of benefits by treating the claimant fairly. The claimant and employer also may have benefited if, for example, the Claimant's new residence had more job opportunities for individuals with disabilities.

The Commonwealth Court's decision did not require an out of state labor market survey.

The Supreme Court reversed, holding the courts are bound by the mandatory nature of the statute. Riddle v. WCAB (Allegheny City Electric, Inc.) Section 306(b)(2) of the Act states when the Claimant moves out of state the labor market survey shall be conducted in the usual employment are where the injury occurred. The Supreme Court said it was the policy choice of the General Assembly to utilize the usual employment area where the injury occurred, even though the resulting job opportunities are outside the Claimant's reasonable commuting area.

With the Supreme Court holding, employers will have to rely on labor market surveys in the usual employment area where the injury occurred. Out of state claimants can take solace in the fact the employer cannot create an in house light duty position and modify benefits if the claimant does not return. Motor Coils MFG/WABTEC v. WCAB(Bish) Affirmed by the Supreme Court

Saturday, October 17, 2009

Amendments to Board and Judges' Rules Published in Pennsylvania Bulletin

The amendments to the board and judges' rules were published today in the Pennsylvania Bulletin.

A WCJ can no longer conduct a mandatory mediation in the judge's own case. If the parties and judge all agree, the presiding judge can conduct a voluntary mediation.

Friday, October 16, 2009

Commonwealth Court Limits Time for IRE Appeal Based on Competency of the IRE Report

In D. Johnson v. WCAB (Sealy Components Group) the Employer issued a Notice of Change of Workers’ Compensation Disability Status based on an IRE finding of a 15% total body impairment. A year later the Claimant filed a petition to review alleging her pulmonary condition should not have been evaluated by the IRE physician who is a board certified physiatrist. The Employer asserted the Claimant’s petition to review was prohibited under Section 306(a.2)(4) of the Act because the Claimant failed to first show a determination she had a 50% impairment rating from her physician.

The WCJ and the Board held the Claimant could file for review under 34 Pa. Code Section 123.105(f). This regulation provides a Claimant can file at any time within the 500 week period of partial disability that is commenced by the filing of the Notice of Change of Workers’ Compensation Disability Status. The WCJ and the Board held, however, that Section 306(a.2)(1) only requires that an IRE physician be board certified. It does not require the physician to be board certified in the specialty that might be indicated for the nature of the injury. The WCJ and Board denied the Claimant’s petition on this basis.

The Claimant’s case might have been argued differently. The Act provides an impairment rating is established pursuant to the AMA Guides to the Evaluation of Permanent Impairment. The Guides provide that when a condition is outside the IRE physician’s specialty, the IRE physician should seek a consultation from a physician of the appropriate specialty to complete the impairment rating. The Claimant should argue a physiatrist was able to perform the IRE, but the IRE was not performed pursuant to the Guides because the physiatrist did not seek a consultation from a pulmonologist.

The Claimant will not have the opportunity to clarify her argument. The Commonwealth Court accepted the Employer’s initial argument that the Claimant must first show a determination she has a 50% impairment rating from a physician when she files for review under 306(a.2)(4) of the Act. The Court said the regulation at 34 Pa. Code Section 123.105(f) is inconsistent with the statute and is invalid.

The Court did recognize the Claimant has a due process right to review the Employer’s unilateral action without the burden of producing her own medical evidence. For this, the Court looked to Section 306(a.2)(2)(b) of the Act and 34 Pa. Code Section 123.105(d) which provide the Claimant with sixty (60) days notice of the change of workers’ compensation disability status. The Court suggested the Claimant has a right to file a review petition in this sixty (60) day window, presumably without first showing a 50% impairment finding.

Accordingly, any review of the competency of the IRE determination including the doctor’s credentials or specialty or the finding of maximum medical improvement must be filed within sixty (60) days. Any challenge to the IRE after that requires a showing the 50% total body impairment threshold has been reached.

Thursday, October 08, 2009

FCE Exam May Not Become Pre-Employment Exam Prohibited by ADA

Business Insurance reviewed a 9th Circuit Court of Appeals case which held a return to work FCE might have gone beyond testing for recovery from the specific work injury. The FCE reported data that might have revealed whether the Employee suffered a disability unrelated to the work injury. Under these circumstances the court held the exam could be an impermissible pre-employment physical under the ADA. The case was remanded for the lower court to determine whether the FCE was job-related and consistent with business necessity.

A commentator suggested the only thing the exam should explore is whether the injury or illness that caused the person to be out of work has healed to the point they are now capable of performing their function.

Thursday, September 24, 2009

An Entertaining Mediation Primer

Richard H. Ralston has compiled a list of thirty things to say in mediation. It is kind of a list of things not to say, or most accurately, a list of things you will hear yourself say and wish you hadn't.

I have heard all but a few of these. I have not heard Statement #5 "They are not negotiating in good faith." Not saying this about a colleague and knowing it won't be said about you is one of the reasons we practice workers' compensation law in Pennsylvania. Statement #4 "They are not being realistic." is the way we say it, and we mean they are just missing something.

Take note of Statement #12 "That's the most we're going to pay.", Statement #25 "Let's just cut to the chase, quit playing games and make our best offer." and Statement #26 "This is my final offer [or demand]." None of these connote a legitimate settlement number.

When you make these and any of the statements in the top twenty, you have deviated from a reasoned analysis of the issues of the case.

Statement 22, 27, 28, and 29 deal with arguing the case. When the parties in mediation discuss risk it must be with an eye toward seeking agreement on the quantity of risk. Seeking to impose risk on a party is disenfranchising and counterproductive to a negotiated agreement.

The author suggests parties should refer to the comments by number to expedite these detours from productive mediation.

Monday, September 21, 2009

Commonwealth Announces G-20 Closings

A press release issued by the Governor's office gives all Pittsburgh state office closings for September 23-25. The release states:

The Workers' Compensation Office of Adjudication (WCOA) office will be closed. If an emergency arises relating to an Allegheny or Beaver County worker's compensation case, call the Johnstown office.

Sunday, September 06, 2009

Facebook, MySpace, etc. Evidence

In a article, workers' compensation claims investigators recall their favorite stories of Claimants' Facebook and MySpace activities. The Claimants in these examples were caught in demonstrably inconsistent behavior.

More often than not Facebook and MySpace evidence amounts to character evidence which is not as helpful to the WCJ.

Claimants' counsel might recommend this site to their clients:

Thursday, September 03, 2009

Commonwealth Court Reaffirms Employer is Responsible to Maintain Orthopedic Appliances

In Equitable Resources v. WCAB (Thomas) the Employer provided modifications to a bathroom. A water leak damaged the bathroom and finished basement. The Commonwealth Court applied Zuback v. Workers’ Compensation Appeal Board (Paradise Valley Enterprise Lumber Company) 892 A.2d 41 (Pa. Cmwlth. 2006) to state the employer was responsible for repairs. The rule of Zuback is that the Employer is responsible to repair or replace orthopedic appliances that are subject to normal wear. Zuback Post

Thursday, May 28, 2009

Supreme Court Grants Petition for Allowance of Appeal on "Footprint" Argument in Pension Benefit Offset

In Commonwealth of Pennsylvania DPW v. WCAB (Harvey) the Supreme Court granted allocatur to review the holding of the Commonwealth Court in Pennsylvania State University/PMA Insurance Group v. WCAB (Hensal), 911 A.2d 225 (Pa. Cmwlth. 2006) and Department of Public Welfare/Western Center v. WCAB (Cato), 911 A.2d 241 (Pa. Cmwlth. 2006) that an employer meets its burden of proof by only presenting evidence of an actuarially assumed rate of annual return on an employer’s contribution rather than evidence confirming the actual rate of return on the pension.

The second issue on which allocatur was granted is whether the Commonwealth Court's holdings disregard the plain language of Section 204(a) of the Workers’ Compensation Act, 77 P.S. § 71(a), which grants an employer a credit against an employee’s pension only“to the extent [the pension is] funded by the employer directly liable for the payment of workers’ compensation.

These issues arise in the "footprint" argument that posits a pension offset should be based on the actual contributions of the Employer while the Claimant worked there. This argument does not account for the contributions the Employer will make to keep the defined benefit plan solvent during the rest of the Claimant's "footprint" e.g. while the Claimant collects pension benefits.

Disposition of this appeal will be another interesting exercise in the sisyphean task of interpreting a statute that does not articulate a method for calculating defined benefit plan pension offsets.

Tuesday, May 26, 2009

Commonwealth Court Rules Claimant May Not Seek Review of the Determination of a URO That the Provider Did Not Properly Submit Records

In L. Sexton v. WCAB (Forest Park Health Center) the Employer filed a request for utilization review. The Provider forwarded treatment records in a timely manner, but did not complete a verification. The URO sent the records back to the Provider. They were not returned. The URO found the treatment unreasonable and unnecessary under 34 Pa. Code Section 127.464(a).

The Claimant was entitled to file a Petition to Review Utilization Review Determination to seek review of the URO's determination. Under HCR Manorcare v. Workers’ Comp. Appeal Bd. (Bollman), 951 A.2d 1242 (Pa. Cmwlth. 2008) and Gazzola v. Workers’ Comp. Appeal Bd. (Ikon Office Solutions), 911 A.2d 662 (Pa. Cmwlth. 2006) the WCJ can vacate the determination and order that the records be sent to a reviewer for a URO determination on the merits.

Although the WCJ did this after hearing evidence the provider did execute the authorization, the Board reversed the WCJ's determination and the Court affirmed. The Court held the URO complied with 34 Pa. Code section 127.464(b) which provides: Before rendering the determination against the provider, a URO shall do the following: (1) Determine whether the records were mailed in a timely manner. (2) Indicate on the determination that the records were requested but not provided. (3) Adequately document the attempt to obtain records from the provider under review, including a copy of the certified mail return receipt from the request for records.

The Court stated the URO had no choice but to deem the treatments unreasonable and unnecessary because the records were not properly submitted due to the lack of the required verification form. The Court also stated where no utilization report is issued, the reasonableness of the bills submitted are final and cannot be appealed to the WCJ, citing County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).

The majority's decision therefore extinguishes the right of the Claimant to seek review of a URO's
34 Pa. Code section 127.464(b) detemination by filing a Petition to Review Utilization Review Determination.

The majority did not discuss the more recent precedents of HCR Manorcare and Gazzola. Judge Butler authored a dissent stating these precedents were properly applied by the WCJ.

Sunday, May 24, 2009

City Can Subrogate Heart & Lung Act Claim Against Third Party Recovery

In City of Wilkes-Barre vs. Robert P. Sheils, Jr., Trustee in Bankrupcy, George W. Cole, Debtor the Third Circuit Court of Appeals held a municipality that pays Heart and Lung Act benefits has a subrogation interest against a third party recovery. The District Court held the subrogation claim was barred by Section 1720 of the Motor Vehicle Financial Responsibility Law.

The Third Circuit identified Brown v. Rosenberger and Coca-Cola Bottling Company as the controlling precedent of the Commonwealth Court and held the 1993 repeal of Section 1720 and 1722 as they relate to workers' compensation benefits also was a repeal as to Heart & Lung Act benefits. The Court looked at the identity of these payments and the inequity of not allowing recovery against a third-party tort-feasor for all losses sustained.

Thursday, January 29, 2009

Blair County Chamber Risk/Safety Committee and Human Resource Mgt. Assn. of Blair County -- “Ten Ways to Lose a Workers' Compensation Case"

The following citations are provided as a follow up to my recent presentation to the Blair County Chamber of Commerce Risk/Safety Committee and Human Resource Management Association of Blair County entitled “Ten Ways to Lose a Workers’ Compensation Case”

“Outliers” by Malcolm Gladwell

Maxim Crane Works v W.C.A.B. (Solano)
– The Employer may not take a retroactive credit under Section 204(a) of the Act until the Employer has sent the LIBC-756 Employee’s report of Benefits.

Motor Coils Manufacturing/WABTEC v. W.C.A.B. (Bish) – The Employer may not modify benefits based on a job with the pre-injury employer when the Claimant has moved out of state in good faith.

Riddle v. W.C.A.B. (Allegheny City Electric, Inc.)
- The Employer may, however, modify benefits based on a labor market survey in the place of the Claimant’s new residence out of state. Even though the Act does not provide for this remedy, the Employer acted in good faith.

Pries v. W.C.A.B. (Verizon Pennsylvania)
– Commonwealth Court case holding that to reinstate benefits after retirement, the Claimant has the burden to show the Claimant is disabled from all work.

But see Gray v W.C.A.B. (Philadelphia Housing Authority) decided by the Supreme Court on January 12, 2009 – The Claimant, who was released to return to work by her physician, took a regular retirement. The WCJ suspended benefits and the Board and Commonwealth Court affirmed. (The Commonwealth Court opinion appears to be unpublished) The Supreme Court directed reinstatement of benefits based on the Claimant’s statement that she felt she had too much pain to continue.

From the New York Times: “Study Finds Settling Is Better Than Going to Trial”