Sunday, July 18, 2010

Commonwealth Court Holds Three Year Filing Limitation in Second Paragraph of Section 413 Applies to Entire Section

In Fitzgibbons v. WCAB(City of Philadelphia) the Claimant had a May 4, 1997 injury described on a notice of compensation payable as epicondylitis of the left elbow. Benefits were suspended upon her July 13, 1998 return to work without loss of earnings. On August 26, 2002 she filed a review and reinstatement petition seeking to add neck, low back, left hip, leg and knee injuries.

The Claimant's testimony that all of these injuries existed at the time the NCP was issued is presumed credible.

Under prior caselaw, a petition to change the description of injury must be filed within three years. Jeanes Hospital v. WCAB (Hass) However, in the course of proceedings under any pending petition, a WCJ can review the description of injury"at any time" if it be proved that the notice of compensation payable was in any material respect incorrect. Cinram Manufacturing, Inc. v. WCAB (Hill) The Commonwealth Court has now held that the Claimant has three years from the last date of payment to file a petition to review the description of injury even in a case where the injuries existed at the time the NCP was issued.

The Court stated both paragraphs of Section 413 must be read together. Accordingly, the limitation that a petition must be filed within three years after the last payment applies to any petition to review, modify or reinstate filed under the section.

Parties must be aware that consistent with the Supreme Court's holding in Cinram, a WCJ may review and modify or set aside an NCP or Agreement "at any time" upon petition or in the course of proceedings under any petition pending before the WCJ. A Claimant petitioning to amend the description of injury has a three year limitation, but a Claimant who is before the WCJ on another petition can always add descriptions of injury that existed when the NCP was issued.

Commonwealth Court Reverses Award Based on Lack of Notice

In Allegheny Ludlum Corporation v. WCAB(Holmes) the Claimant worked in metatarsal boots with steel up above the ankle. Her foot problems began in 1994. She had surgeries and periods of disability when she collected sickness and accident benefits. She went off work for the last time prior to filing her claim petition on June 11, 2003.

The Claimant never testified she informed her Employer of a connection between her work and aggravation of her foot condition. Notice in this case was identified as occurring on February 17, 2004. The claim petition was filed on December 9, 2004.

In the face of this record, the Claimant argued a November 11, 2004 report of her treating physician was the first opinion she received of causation. She argued her December 9, 2004 filing was within 120 days.

Obviously, the Claimant had given notice back in February. Furthermore, the Claimant testified her pain was worse at work than at home prior to her last date of work. The court distinguished the Supreme Court precedent of Sell v. WCAB(LNP Engineering), which stands for the proposition that the Claimant is not charged with knowledge of the injury until she receives a physician's report of causation. In Sell, the Claimant was a smoker and had to see a lot of doctors before she got an opinion relating her pulmonary symptoms to formaldehyde exposure.

The Court ultimately held the Claimant in this case knew or should have known the connection between her symptoms and her work duties before her last day of work and the 120 day notice period ran from that date.

The dissent would have remanded the case for the Claimant to go back to square one and testify about conversations she must have had with her employer between 1994 and 2003 from which the Employer might be charged with notice. It is incongruent to assume the Employer did not know the Claimant's work in metatarsal boots was aggravating her condition over the course of two prior surgeries and periods of disability with return to work and worsening of her condition. The purpose of the notice provision of the Act is to give the Employer the opportunity to conduct a contemporaneous investigation. Given the facts of this case -- including the lack of a medical opinion until November of 2004 -- it is as clear that the Employer should have known as it is that the Claimant should have known. It is, however, the Claimant's burden.

Saturday, July 10, 2010

2006 Life Tables Published - CMS Requires Use of 2006 Table After July 19

The National Center for Health Statistics has published the 2006 Life Tables. These are the most up to date life tables for use in Sciarotta calculations.

The Centers for Medicare & Medicare Services published an update advising any Workers Compensation Set Aside Proposal submitted after July 19, 2010 should use Table 1: Life table for the total population: United States 2006 for WCMSA life expectancy calculations.

Saturday, July 03, 2010

Cameras in the Courtroom and Justice

Cameron Stracher, a New York writer and media lawyer wrote Who's Afraid of Cameras in the Courtroom, an opinion piece for the Wall Street Journal, on July 2. Mr. Stracher argues the prohibition of audio and video recording in the courtroom is over broad and inconsistent with the non-stop media coverage of trials outside the courtroom.

Mr. Stracher does note the Supreme Court precedent, Estes v. Texas, wherein the Court explained cameras have a prejudicial effect on pre-trial publicity, affect the truthfulness of witnesses, and generally impact fair-trial rights.

The distinction is that the parties have rights in the courtroom they do not have on the street. The courtroom is a place of equal justice under law. The street has different rules. For example, in workers' compensation law, we bring the workplace into the courtroom. The supervisor and the claimant are subject to command and control in the workplace, but in the courtroom they are equals.

The current rule allowing only reporters with notebooks and sketch pads maintains the balance of the rights of parties in the courtroom. With a recording device on, a witness is aware that the witness's words and actions will go directly to observers outside the courtroom. The witness will be concerned with a sound or video bite taken out of context and its effect in the court of public voyeurism. The parties must be free to tell their story, warts and all.

The warts almost always lend credibility to the story.

No one is afraid of cameras in the courtroom. They are just inconsistent with the administration of justice.