tag:blogger.com,1999:blog-40153692024-02-29T08:18:11.221-05:00Pennsylvania Workers' Compensation JournalAn online digest of developments in Pennsylvania workers' compensation practice and procedureUnknownnoreply@blogger.comBlogger378125tag:blogger.com,1999:blog-4015369.post-45975214695629492582013-03-10T19:09:00.004-04:002013-03-16T18:51:37.371-04:00Twitter LinkI have not been able to prepare posts to Pennsylvania Workers' Compensation Journal for some time. My Twitter list workers-compensation has a lot of good sources. The link to Twitter is down the page on the right. Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-45913830900180859462011-09-12T12:19:00.001-04:002011-09-13T13:01:54.841-04:00Decedent in Home Office Was Not in Course of Employment if on Personal Comfort BreakIn <a target="_blank" href="http://www.pacourts.us/OpPosting/Cwealth/out/25CD11_9-1-11.pdf">Werner v. WCAB (Greenleaf Service Corporation)</a> the decedent had a home office. The claimant surviving spouse found the decedent unresponsive in his home office desk chair. The decedent suffered a massive intracranial hemorrage. The evidence indicated the decedent fell on his outside steps, then went in an upstairs bathroom before going down to his home office.<br /><br />The defense focused on testimony that the decedent was supposed to be in the employer's headquarters when he was not travelling in his job in international sales. The employer did not dispute that it provided the office equipment in the home office or that the claimant sent some work related e-mails the morning of his accident. The claimant had cancelled an overseas trip because he was getting medical care for a hand laceration. The employer witnesses testified they considered him to be on sick leave, and the WCJ found this testimony credible. The WCJ found the claimant to be not in the scope of employment.<br /><br />The claimant, however, was salaried with flexible hours and had made no formal request for sick leave. The Commonwealth Court framed the issue as whether the decedent was furthering the business interests of the employer when he was injured. The precedent they analyzed was <a target="_blank" href="http://www.courts.state.pa.us/OpPosting/CWealth/out/1804CD05_5-31-06.pdf">Verizon Pennsylvania, Inc. v. WCAB (Alston)</a>, a case in which the claimant worked in a home office. In Alston, the claimant received a work related phone call while on a personal comfort break. She fell down the stairs while still on the phone.<br /><br />The Court explained an employee in a home office is a "stationary" employee. When a stationary employee leaves the premises during authorized breaks for personal reasons, the employee is not within the course of employment. The claimant bears the burden to prove all elements of the claim. Because the claimant in this case could not prove the decedent was furthering the business interests of the employer when he fell outside, the claimant did not meet her burden to show the decedent was injured in the scope of employment. The decision of the WCJ was affirmed. <br /><br />Although not cited by the Court, the case of <a target="_blank" href="http://www.aopc.org/OpPosting/Cwealth/out/1263CD08_6-11-09.pdf">Department of Labor and Industry v. WCAB (Savani)</a> is on point. In that case, an employee on a paid break went outside for a walk around the building and fell in the street. The WCJ and WCAB awarded benefits, but the Court held the claimant was a stationary employee attending to her personal comfort and was not acting in furtherance of the employer's business or affairs. The Court reversed, holding the claimant's injuries were not in the scope of employment.<br /><br />- Posted using BlogPress from my iPad<br /><br />Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-4015369.post-58294587814381154892011-08-29T12:15:00.002-04:002011-08-29T12:33:31.980-04:00Claimant Who Returns to Light Duty and is Dismissed for Concealing Employment During Disability is Not Entitled to Reinstatement.In <a href="http://www.pacourts.us/OpPosting/Cwealth/out/1316CD10_8-26-11.pdf">Sauer v. Workers' Compensation Appeal Board (Verizon Pennsylvania, inc.)</a> the Claimant returned to light duty on August 16 and a notification of suspension was issued. On August 17, the Claimant and his union representative were shown surveillance of the Claimant doing various work during his period of disability. The Claimant had reported no earnings from other employment via LIBC-756. The Claimant was discharged.
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<br />The Claimant did not challenge the notification of suspension or grieve the firing. In October he filed a reinstatement petition and in December he filed a review petition to add additional physical and psychological injuries. The WCJ dismissed the review petiton based on the credibility of the doctors who testified and dismissed the reinstatement petiton based on the Claimant's dismissal for cause.
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<br />The Claimant argued he had only returned to light duty when he was seperated from employment, and the work depicted in the surveillance did not demonstrate that the Claimant could perform full duty. The court held, however, that the evidence met the standard of proof to conclude the Claimant was discharged for cause and the Claimant's loss of earnings was unrelated to the work injury. The decision of the WCJ was affirmed.
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<br />- Posted using BlogPress from my iPadUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-56698729674773517552011-08-22T12:25:00.001-04:002011-08-22T18:03:03.807-04:00Adult Stem Cell Treatment of Degenerative Disc DiseaseA company experimenting in adult stem cell treatment of degenerative disc disease <a href="http://www.prnewswire.com/news-releases/first-minimally-invasive-procedure-performed-in-mesoblasts-phase-2-stem-cell-trial-for-lumbar-disc-repair-128171108.html">has announced a successful phase 2 clinical trial</a>. The procedure injects mesenchymal precursor cells into damaged intervertebral discs. The company reported that in the clinical trial the subject disc demonstrated reversal of the degenerative process, regrowth of disc cartilage, and sustained normalization of disc pathology, anatomy and function for at least six months.
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<br />- Posted using BlogPress from my iPad
<br />Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-74722980636527488622010-07-18T07:48:00.002-04:002010-07-18T09:36:34.968-04:00Commonwealth Court Holds Three Year Filing Limitation in Second Paragraph of Section 413 Applies to Entire SectionIn <a href="http://www.courts.state.pa.us/OpPosting/Cwealth/out/2041CD08_7-16-10.pdf">Fitzgibbons v. WCAB(City of Philadelphia)</a> 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. <div><br /></div><div>The Claimant's testimony that all of these injuries existed at the time the NCP was issued is presumed credible.</div><div><br /></div><div>Under prior caselaw, a petition to change the description of injury must be filed within three years. <a href="http://www.pacourts.us/OpPosting/Supreme/out/J-90-2004mo.pdf">Jeanes Hospital v. WCAB (Hass)</a> 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. <a href="http://www.pacourts.us/OpPosting/Supreme/out/J-145-2008mo.pdf">Cinram Manufacturing, Inc. v. WCAB (Hill)</a> 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. </div><div><br /></div><div>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. </div><div><br /></div><div>Parties must be aware that consistent with the Supreme Court's holding in <i>Cinram, </i>a WCJ may review and modify or set aside an NCP or Agreement "at any time" upon petition<b> or</b><i> </i>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. </div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-79944949885021443152010-07-18T06:53:00.002-04:002010-07-18T07:46:12.068-04:00Commonwealth Court Reverses Award Based on Lack of NoticeIn <a href="http://www.courts.state.pa.us/OpPosting/Cwealth/out/1623CD09_7-9-10.pdf">Allegheny Ludlum Corporation v. WCAB(Holmes)</a> 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. <div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div>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 <a href="http://www.pacourts.us/OpPosting/Supreme/out/J-168-2000mo.pdf">Sell v. WCAB(LNP Engineering)</a>, 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.</div><div><br /></div><div>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. </div><div><br /></div><div>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.</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-17117075056006743572010-07-10T07:20:00.004-04:002010-07-10T07:49:29.293-04:002006 Life Tables Published - CMS Requires Use of 2006 Table After July 19The National Center for Health Statistics has published the <a href="http://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58_21.pdf">2006 Life Tables</a>. These are the most up to date life tables for use in <a href="http://openjurist.org/837/f2d/135"><span style="font-style:italic;">Sciarotta</span></a> calculations. <br /><br />The Centers for Medicare & Medicare Services published an <a href="http://www.cms.gov/workerscompagencyservices/01_overview.asp?">update</a> 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.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-54235980836128370942010-07-05T10:59:00.001-04:002010-07-05T11:01:59.258-04:00PBS Frontline Article<span class="Apple-style-span" style="font-family: 'Lucida Grande', sans-serif; font-size: 14px; color: rgb(54, 60, 75); line-height: 16px; "><a href="http://www.pbs.org/wgbh/pages/frontline/shows/workplace/etc/fraud.html">The Myth of Workers' Compensation Fraud</a></span><div><br /></div><div>hat tip to <a href="https://twitter.com/PAWORKERSCOMP">http://twitter.com/PAWORKERSCOMP</a></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-14953350747979084842010-07-03T09:35:00.005-04:002010-07-04T08:33:00.914-04:00Cameras in the Courtroom and JusticeCameron Stracher, a New York writer and media lawyer wrote <i><a href="http://online.wsj.com/article/SB10001424052748703964104575334831068223478.html?KEYWORDS=stracher">Who's Afraid of Cameras in the Courtroom</a>,</i> 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.<div><br /></div><div>Mr. Stracher does note the Supreme Court precedent, <i>Estes v. Texas</i>, wherein the Court explained cameras have a prejudicial effect on pre-trial publicity, affect the truthfulness of witnesses, and generally impact fair-trial rights. </div><div><br /></div><div>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. </div><div><br /></div><div>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. </div><div><br /></div><div>The warts almost always lend credibility to the story.</div><div><br /></div><div>No one is afraid of cameras in the courtroom. They are just inconsistent with the administration of justice.</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-34816149622890505432010-06-30T17:05:00.000-04:002010-07-01T11:15:08.176-04:00Commonwealth Court Modifies Benefits of Claimant Who Applied For And Did Not Get Jobs in Labor Market SurveyIn <a href="http://www.courts.state.pa.us/OpPosting/Cwealth/out/2188CD09_6-30-10.pdf">Phoenixville Hospital v. WCAB (Shoap) </a>the Claimant received a Notice of Ability to Return to Work sometime after a May 9, 2007 IME. In July the Claimant received a Labor Market Survey (LMS) listing three jobs. The jobs were open and available on May 21, June 5 and June 11. The Claimant applied for the jobs and did not receive an offer of employment. In August the Claimant received a supplemental LMS with jobs available July 9 and one continuously available. The Claimant did a telephone interview with the last employer and was told she could not work at the position. The Claimant did not look for work independently.<div><br /></div><div>The WCJ denied the Employer's modification petition. The WCJ's decision was consistent with <a href="http://www.pacourts.us/OpPosting/Cwealth/out/1357CD00_9-12-02.pdf">South Hills Health System v. WCAB (Kiefer) </a>with one difference. The WCJ did not reject the credibility of the vocational expert's earning power opinion (based on the LMS) on the basis that the Claimant applied for the positions and did not receive any responses. The Board affirmed.</div><div><br /></div><div>The Court held that under these circumstances, the record supported a modification of benefits based on <i>South Hills</i> and Section 306(b)(2) of the Act. The Court said only the position that the Claimant was interviewed for and rejected at was unavailable. It was the lowest paying job. The Court nevertheless modified benefits based on the average of all the jobs, because that was the relief the Employer requested.</div><div><br /></div><div>The Court stated the Claimant was obligated under the Notice of Ability to Return to Work to look for work when the jobs were open and available. Without more, the fact the Claimant applied a month later and did not hear back does not rebut the testimony of the vocational expert that the jobs were open and available. The Court stated<i> Kachinski v. WCAB (Vepco Construction Co.)</i> 532 A.2d 374 (1987) is, with limited exception, an antiquated standard. The Court also suggested that modification based on last month's open and available jobs is not harsh, because similar employment opportunities will regularly become available. The Court clearly explained this is the result Section306(b)(2) requires.</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-90116528373419206822010-02-10T07:27:00.002-05:002010-02-10T07:34:18.084-05:00Medical Evaluation of Work InjuriesReduceyourworkerscomp.com and workerscompensaation.com share <a href="http://www.workerscompensation.com/compnewsnetwork/blogwire/8_ways_one_doctor_can.html">8 Ways One Doctor Can Reduce Workers' Comp Costs Forever</a>, a guide to evaluation and diagnosis of claimed work injuries. The checklist illustrates where a disconnect can occur between the injured employee and the doctor which can result in a faulty opinion.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-81319827973700396132009-10-30T16:50:00.003-04:002009-10-30T16:59:00.578-04:00Presentation at Central Pennsylvania Regional Business and Industry ExpoI 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. <a href="http://www.cbicc.org/EventsPrograms/CentralPARegionalBusinessIndustryExpo/tabid/142/Default.aspx">Central Pa. Expo</a> <a href="http://bit.ly/Fqi8z">Workshop Times</a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-30001220197044337072009-10-25T15:46:00.002-04:002009-10-25T15:56:06.345-04:00Commonwealth Court Holds Claimant Cannot Receive 500 Weeks of Partial Disability For Two InjuriesIn<a href="http://www.pacourts.us/OpPosting/Cwealth/out/448CD09_10-20-09.pdf"> P. Reutzel v. WCAB (Allegheny General Hospital)</a> 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.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-69195163811051980682009-10-24T15:50:00.004-04:002009-10-24T18:40:22.355-04:00Supreme 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:<div><br /></div><div><div>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).</div><div><br /></div><div>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 <i>Guides</i>. Employers have failed to prove the Claimant was at maximum medical improvement, a requirement of the <i>Guides</i>. </div><div><br /></div><div>The Commonwealth Court <a href="http://www.pacourts.us/OpPosting/Cwealth/out/1507CD07_4-28-08.pdf">first concluded</a> 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 <a href="http://www.pacourts.us/OpPosting/Cwealth/out/1507CD07_4-22-09.pdf">then concluded</a> 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.</div><div><br /></div><div>The authority to conclude the employer must show earning power comes from the <i>Guides</i>. The <i>Guides</i> make it clear in their introduction that the whole person impairment is based on activities of daily living <i>excluding work <span class="Apple-style-span" style="font-style: normal; ">(emphasis in original). The </span>Guides<span class="Apple-style-span" style="font-style: normal; "> go on to give an example of an individual who has a 20% total body impairment and a 100% work disability. </span></i></div><div><br /></div><div>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.</div></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-58801878143121443472009-10-22T21:56:00.001-04:002009-10-23T11:49:01.619-04:00Supreme Court Reverses Commonwealth Court Ruling That Labor Market Survey May Be Conducted in Claimant's Place of Residence Out Of StateThe Commonwealth Court held in <a href="http://www.courts.state.pa.us/OpPosting/CWealth/out/1390CD07_1-8-08.pdf">Riddle v. WCAB (Allegheny City Electric, Inc.)</a> 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. <a href="http://www.pawcj.com/2008/01/labor-market-survey-may-be-done-in-area.html">Riddle Post</a><div><br /></div><div><a href="http://www.pawcj.com/2008/01/labor-market-survey-may-be-done-in-area.html"></a><div>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. </div><div><br /></div><div>The Commonwealth Court's decision did not require an out of state labor market survey. </div><div><br /></div><div>The Supreme Court reversed, holding the courts are bound by the mandatory nature of the statute. <a href="http://www.pacourts.us/OpPosting/Supreme/out/J-14-2009mo.pdf">Riddle v. WCAB (Allegheny City Electric, Inc.)</a> 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.</div><div><br /></div><div>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. <a href="http://www.courts.state.pa.us/OpPosting/CWealth/out/2732CD03_6-11-04.pdf">Motor Coils MFG/WABTEC v. WCAB(Bish)</a> <a href="http://www.pacourts.us/OpPosting/Supreme/out/J-3-2006pco.pdf">Affirmed by the Supreme Court</a></div></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-34356510614856010732009-10-17T16:39:00.002-04:002009-10-17T17:00:40.795-04:00Amendments to Board and Judges' Rules Published in Pennsylvania Bulletin<a href="http://www.pabulletin.com/secure/data/vol39/39-42/1925.html">The amendments to the board and judges' rules</a> were published today in the Pennsylvania Bulletin.<div><br /></div><div>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. </div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-11961826986154622862009-10-16T16:55:00.002-04:002009-10-16T17:00:50.812-04:00Commonwealth Court Limits Time for IRE Appeal Based on Competency of the IRE Report<div>In <a href="http://www.pacourts.us/OpPosting/Cwealth/out/763CD09_10-15-09.pdf">D. Johnson v. WCAB (Sealy Components Group)</a> 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.</div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-80379142267448043712009-10-08T12:15:00.000-04:002009-10-08T13:33:23.855-04:00FCE Exam May Not Become Pre-Employment Exam Prohibited by ADA<a href="http://www.businessinsurance.com/article/20091004/ISSUE01/310049972">Business Insurance reviewed</a> a <a href="http://www.businessinsurance.com/assets/PDF/CB67163104.PDF">9th Circuit Court of Appeals case</a> 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.<div><br /></div><div>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.</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-75627704005355263212009-10-02T20:24:00.001-04:002009-10-02T20:26:33.965-04:00Summary of WCRI Report at Risk and Insurance<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif; color: rgb(0, 0, 255); font-weight: bold; "><a href="http://www.riskandinsurance.com/story.jsp?storyId=263749989">Pennsylvania: Study finds medical costs per claim similar to other states, but rising</a></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-89941285709702007142009-09-24T17:56:00.003-04:002009-09-27T12:01:18.115-04:00An Entertaining Mediation PrimerRichard H. Ralston has compiled <a href="http://www.mow.uscourts.gov/outreach/ioc/30_things.pdf">a list of thirty things to say in mediation</a>. 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. <div><br /></div><div>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.</div><div><br /></div><div>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. </div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div>The author suggests parties should refer to the comments by number to expedite these detours from productive mediation.</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-45676790347210788532009-09-21T21:11:00.001-04:002010-07-06T09:28:02.925-04:00Commonwealth Announces G-20 ClosingsA <a href="http://news.prnewswire.com/DisplayReleaseContent.aspx?ACCT=104&STORY=/www/story/09-21-2009/0005097869&EDATE=">press release</a> issued by the Governor's office gives all Pittsburgh state office closings for September 23-25. The release states: <div><br /></div><div><span class="Apple-style-span" style="font-family: Arial; font-size: 12px; -webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; ">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.</span></div>Unknownnoreply@blogger.comtag:blogger.com,1999:blog-4015369.post-17054242448501448702009-09-06T21:06:00.003-04:002009-09-06T21:26:22.921-04:00Facebook, MySpace, etc. EvidenceIn a <a href="http://www.businessinsurance.com/article/20090906/ISSUE01/309069984">Businessinsurance.com article</a>, 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.<br /><br />More often than not Facebook and MySpace evidence amounts to character evidence which is not as helpful to the WCJ.<br /><br />Claimants' counsel might recommend this site to their clients: <a href="http://www.wikihow.com/Quit-Facebook">http://www.wikihow.com/Quit-Facebook</a>.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-9746723625658918002009-09-03T07:25:00.000-04:002009-09-03T07:31:50.810-04:00Commonwealth Court Reaffirms Employer is Responsible to Maintain Orthopedic Appliances<span style="font-family: arial;font-family:times new roman;font-size:100%;" >In<a href="http://www.pacourts.us/OpPosting/Cwealth/out/80CD09_9-2-09.pdf"> </a></span><span class="Apple-style-span" style="font-family: arial;font-family:'MS Sans Serif';font-size:100%;" ><a href="http://www.pacourts.us/OpPosting/Cwealth/out/80CD09_9-2-09.pdf">Equitable Resources v. WCAB (Thomas)</a> the Employer provided modifications to a bathroom. </span><span class="Apple-style-span" style="font-family: arial;font-family:'MS Sans Serif';font-size:100%;" >A water leak damaged the bathroom and finished basement.</span><span class="Apple-style-span" style="font-family: arial;font-family:'MS Sans Serif';font-size:100%;" > 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. <a href="http://www.pawcj.com/2006/01/commonwealth-court-holds-employer-is.html">Zuback Post</a></span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-26260989159273553722009-05-28T21:54:00.003-04:002009-05-28T22:21:18.688-04:00Supreme Court Grants Petition for Allowance of Appeal on "Footprint" Argument in Pension Benefit OffsetIn <strong style="font-weight: normal;"><a href="http://www.pacourts.us/OpPosting/Supreme/out/3eal2009granted.pdf">Commonwealth of Pennsylvania DPW v. WCAB (Harvey)</a> 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.<br /><br />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.<br /><br />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.<br /><br />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.</strong>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-4015369.post-4453505395923256702009-05-26T20:31:00.008-04:002009-05-28T18:00:32.799-04:00Commonwealth Court Rules Claimant May Not Seek Review of the Determination of a URO That the Provider Did Not Properly Submit RecordsIn <strong style="font-weight: normal;"><a href="http://www.pacourts.us/OpPosting/Cwealth/out/1225CD08_5-22-09.pdf">L. Sexton v. WCAB (Forest Park Health Center)</a> 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).<br /><br />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.<br /><br />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.<br /><br />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).<br /><br />The majority's decision therefore extinguishes the right of the Claimant to seek review of a URO's </strong><strong style="font-weight: normal;"> 34 Pa. Code section 127.464(b) detemination</strong> by filing a Petition to Review Utilization Review Determination.<br /><br /><strong style="font-weight: normal;">The majority did not discuss the more recent precedents of <span style="font-style: italic;">HCR Manorcare</span> and <span style="font-style: italic;">Gazzola.</span> Judge Butler authored a dissent stating these precedents were properly applied by the WCJ.</strong><strong style="font-weight: normal;"> </strong>Unknownnoreply@blogger.com0