Commonwealth Court Holds Relevant Prior Medical Records Must Be Provided To IME Physician

In Central Dauphin School District, et al. v. WCAB (Siler), the Claimant was successful in a Claim Petition to establish injuries including various musculoskeletal conditions including fibromyalgia. The description of injury by the WCJ also included "altered states of consciousness."

When the Employer pursued later IMEs with a neurosurgeon and psychiatrist, the psychiatrist requested pre-injury records of psychological treatment. The WCJ concluded these records were not discoverable, and the Board affirmed, reasoning the records should have been sought in the Claim Petition litigation.

The Commonwealth Court reversed. The Court noted Claimant’s Counsel did not argue that the records are not discoverable, just that they are irrelevant to the adjudicated diagnoses. The Court remanded for the WCJ to compel the discovery of records that are relevant.

Commonwealth Court Holds WCJ Has Jurisdiction Over Attorney Fee Disputes Between Counsel When Prior Counsel's Fee Has Been Approved

In K. Hendricks v. WCAB (Phoenix Pipe & Tube), the Commonwealth Court held Pitt v. Workmen’s Compensation Appeal Board (McEachin), 636 A.2d 235 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 661, 648 A.2d 792 (1994) does not stand for the proposition that the WCJ does not have the authority to decide a counsel fee dispute when both attorneys’ fee petitions have been properly submitted to a WCJ.

Attorney fee disputes arise when the Claimant changes attorneys for whatever reason. Because the prior attorney is receiving a continuing 20% counsel fee, there is no room for a fee to be paid to the new attorney. The Pitt case is typically cited by WCJs to refer attorney fee disputes to the local County Bar Association Fee Dispute Committee, and ultimately to the local Court of Common Pleas. This is still the procedure if the prior attorney has not received fee approval, or at least properly placed a fee agreement in the record in an open case.

The Hendricks case states where a 20% fee has been approved for a prior attorney, the fee can be changed after an analysis by the WCJ as to what fee is appropriate for prior and present counsel. The WCJ must balance the right of the Claimant to counsel of the Claimant’s choice against the humanitarian purposes of the Workers’ Compensation Act that are perpetuated by prior counsel receiving a reasonable fee. The Court stated a Claimant cannot be permitted to avoid paying legal fees by simply discharging the Claimant’s attorney.

WCJ’s now will look at fee disputes when the Claimant changes attorneys. A WCJ still may seek consultation from the local Bar Association Fee Dispute Committee, but if there is not a resolution, the WCJ will resolve the dispute.

Claimant Cannot Petition for Modification or Reinstatement More Than Three Years After Last Date of Payment, Even When a Specific Loss is Discovered

In R. Seekford v. WCAB (R.P.M. Erectors), the Court analyzed whether the Claimant could file a claim for specific loss of his arm almost six years after the last payment of compensation via receipt of a commuted sum. The Claimant had sustained nerve damage to his arm after inadequate padding of his upper extremities during low back surgery seven and one-half years earlier. The Employer admitted an injury to the arm, but asserted the Claimant’s petition was time-barred, as it was not filed within three years of the last date of payment.

The Court held the Claimant’s Claim Petition must be treated as a Petition for Review. An injury that arose as the proximate result of surgery for the accepted injury is an injury that arose out of the accepted injury. Accordingly, the statute of limitations of three years from the last date of payment applies.

The Court then rejected the Claimant’s argument that he only discovered the specific loss when his doctor rendered an opinion of specific loss less than two years prior to the date of filing. The Court would not analogize the specific loss in this case to a specific loss of sight or hearing because the Claimant testified he knew there was a severe problem as soon as he woke up from the original surgery. The Court stated a Claimant who commutes his benefits runs the risk of finding himself beyond the statute of limitations when the Claimant’s injury worsens.

Employer Can File Termination Petition After IRE -- No Penalties for Unreasonable Contest

In J. Schachter v. WCAB (SPS Technologies), The Commonwealth Court held an award of attorney’s fees for unreasonable contest was not appropriate when the Employer filed a termination petition after an IRE and Notice of Change of Worker’s Compensation Disability Status. An IRE assessing a per cent total body impairment does not preclude a later finding of full recovery. The Employer expert’s opinion provided a reasonable basis for contest.

Commonwealth Court Holds Parties Can't Look Behind The Last Supplemental Agreement

In Sharon Tube Company v. WCAB (Buzard) the Commonwealth Court restated the principle that the parties cannot look behind the last Supplemental Agreement when requesting relief from the WCJ. The Claimant attempted to return to work, but then went off again. The Employer issued a Supplemental Agreement reinstating temporary total disability benefits. The Supplemental Agreement did not provide for a reservation of the employer’s right to file a modification petition based on the Claimant’s return to work.

The Employer later filed the modification petition. The WCJ denied the Claimant’s motion to dismiss based on the admission of total disability in the Supplemental Agreement. The WCJ found the Employer’s testimony credible and granted modification.

The Board reversed, and the Court affirmed the Board. The basis was that only the last agreement of the parties could be reviewed. Because the Employer did not produce evidence of a medical release and available work after the date of the Supplemental Agreement, no modification could be awarded.

Disfigurement Is To Be Viewed Without Prosthesis -- WCJ Abused Discretion in Making No Award

In P. Agnello v. WCAB (Owens-Illinois), the claimant lost three lower teeth as a result of a work injury. The WCJ observed her on two occasions and stated he could not see a difference in her appearance with her prosthesis out. He denied the Claimant’s petition for disfigurement benefits and the Board affirmed.

The Court noted the Board affirmed on the basis that the Claimant has a prosthesis, which is irrelevant to the disfigurement analysis. The disfigurement is to be viewed without the prosthesis. "Although Gardiner did not specifically hold that dentures should not be considered when determining whether there was a disfigurement, we now do so because they do not resolve the disfigurement, only mask it."

The Court held the absence of the teeth had to make some difference, and the WCJ abused his discretion in denying an award. The Court reversed the Board and remanded the case to the WCJ to make an award.

The Hartford List of Top Drugs Prescribed in Workers' Compensation Claims

The Hartford Issued its list of the top 25 drugs prescribed in workers' compensation claims. The report also indicates drug costs went down due to generics for oxycontin and neurontin and the withdrawal of vioxx and bextra. Press Release

Supreme Court Requires Deposition by Interrogatories Before Discovery of IME Doctor's 1099s

The Supreme Court has addressed the cases in which IME physician Dr. Eagle desires to not respond to the Order of the Common Pleas Court that he produce three years of 1099s from insurance companies and defense attorneys. The Judge found the discovery request was appropriate upon which to found a demonstration of bias. The Superior Court affirmed.

In Cooper v. Schoffstall; Appeal of: Eagle, M.D. the Supreme Court held a deposition by interrogatories is required before a Judge can order that 1099s be produced. The Court felt the IME doctor's answers to the interrogatories will be sufficient upon which to demonstrate bias in most cases where it exists.

Madame Justice Newman authored an excellent concurring opinion reminding the bar that requiring an expert witness to produce personal financial information is generally an abuse of the discovery process.

No one can deny, however, that IME physicians can underestimate the IMEs they perform for defendants, overestimate the IMEs they perform for Claimants, or both. The doctor's testimony can't be challenged without hard evidence, such as 1099s. One has to question the doctor's veracity when the doctor says he or she does one IME a week and all the Judges in our part of the state see the doctor's evaluations twenty times a year or more.

The Supreme Court decision still allows discovery that digs deeper than questioning the doctor without his financial records. The first step, however, will be to direct interrogatories to the doctor.

In workers' compensation, there is no provision in the Rules of Practice and Procedure before WCJs to conduct a deposition by interrogatories. Claimant's counsel will have to direct these questions to the IME physician at deposition. If the answers seem incredible to counsel, they will probably seem incredible to the Judge. In a rare case, counsel may seek additional documentation.

New Back Treatments

The Axiom DRX 9000 is a machine designed to provide advanced traction to lumbar discs. Article A Pittsburgh company intends to develop a new NSAID. Press Release

X-Stop Device for Spinal Stenosis

Dr. Jack Wilberger's comments on the x-stop device to relieve spinal stenosis.

Act 109 Requirements

Act 109 of 2006 becomes effective on September 5, 2006. The Act provides that WCJ’s must direct reimbursement of outstanding support liens to PASCDU when a net award of benefits to the Claimant exceeds $5,000.00. The lien value that will be used is the amount posted at www.childsupport.state.pa.us. Attorneys may register and obtain the information for use in Act 109 compliance. One other important consideration is that the Claimant information upon which verification of the lien is based must be presented to the WCJ in writing, with verification subject to 18 Pa.C.S.A. Section 4904.

Disputes will arise, particularly due to a collection authority placing an entire month’s obligation as a lien on the first of the month. A printout should be requested on the last day of the month to avoid this issue.

In the event of a dispute, the WCJ has the authority to order that the undisputed amount be paid to PASCDU and the disputed amount escrowed by Claimant’s Counsel. Since there is no workers’ compensation issue beyond the validity of the support arrearage data, the WCJ will ordinarily not exercise the WCJ’s authority under Rossa v. WCAB (City of Philadelphia) to resolve the dispute.

Commonwealth Court Defines Role of Claimant's Designated Health Care Provider Who Attends Independent Medical Examination

In M. Knechtel v. WCAB (Marriott Corporation), the Claimant elected to have a health care provider of her choosing attend an independent psychiatric evaluation. The Claimant further requested of the WCJ that her designated health care provider be permitted to video or audio tape record the examination, question the examiner, comment on the examination process and assist the Claimant during the examination by rephrasing questions and asking additional questions during the examination.

The WCJ denied all of these manners of participation, holding the Claimant’s representative may only observe, take notes, and request brief recesses during the evaluation to confer with the Claimant. The Board and the Court affirmed. The Court reasoned it had ruled in Wolfe v. Workmen’s Compensation Appeal Board (Edgewater Steel Company), 636 A.2d 1293 (Pa. Cmwlth.), appeal denied, 537 Pa. 669, 644 A.2d 1205 (1994) that the Claimant is not able to be represented by her attorney at the examination. Participation of the type the Claimant was requesting was tantamount to an adversarial proceeding.

The Court stated the role of the Claimant’s designated health care provider is to obtain a firsthand view of the exam process as a foundation for later rebutting in testimony the validity of the exam results.