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.