Study Finding Long Term Use of Narcotics in Low Back Pain Cases is Suspect

A study from Yale University published in the Annals of Internal Medicine found long term effectiveness of opioids for low pack pain was not conclusive and abuse was reported in 24 per cent of cases.

A Judge's Perspective on Mediation

This article by Federal District Court Judge Dan Aaron Polster for the Ohio State Journal on Dispute Resolution provides an excellent summary of mediation. Judge Polster explains the benefits of mediation and discusses considerations for a Judge who will mediate a case that will go to trial before the Judge.

WCJs are the trier of fact, and Judge Polster doesn't believe a judge who is the trier of fact should mediate the Judge's own case. He reasons: "If statements (the parties) made to me regarding the facts of the case conflict with their trial testimony, I would be placed in the untenable position of either ignoring what I knew, or making findings based upon facts outside of the record."

Because a WCJ is a Judge under Article IV of the Constitution of Pennsylvania, and because the Act specifically grants investigative powers, a WCJ should never be in a situation where a conflict between the parties statements to the WCJ in mediation and the record testimony is unresolved. However, justice in the adjudication will come at the expense of breach of the confidentiality of the mediation by the Mediator/WCJ.

Under Act 147, a decision cannot be circulated until the case is mediated, except where mediation is futile. Mediation is futile only when no losing party could convince the Board that the case should have been mediated. It is not enough that the parties and Judge agree mediation seems futile. The Board has the benefit of 20-20 hindsight as to whether a party could have done better had they mediated. If no mediation was held, a decision could be vacated. The parties therefore should be prepared to mediate every case, and, as stated by Judge Polster, mediate as soon as is practical.

Three Supreme Court Cases

The Supreme Court held in Pitt Ohio Express v. WCAB (Wolff) that a job the Claimant rejects in bad faith remains available in perpetuity (unless the facts of the original job offer show otherwise).

The Claimant's benefits were suspended based on his rejection of a modified duty job with the Employer. Benefits were then reinstated after surgery. The Employer filed a subsequent Petition for Suspension alleging the Claimant recovered to the point where he could have performed the modified duty job. The job was not available. The WCJ suspended, the WCAB reversed, and the Commonwealth Court reversed the WCAB.

The Supreme Court stated the Claimant's earning power was adversely affected through fault of his own. Under these circumstances, the Employer does not have the burden to show job availability.

The Supreme Court addressed a fact specific course of employment case in Brookhaven Baptist Church v. WCAB (Halvorson)

The Court also affirmed per curiam the Commonwealth Court decision in Motor Coils MFG/WABTEC, v. WCAB (Bish). The Court did not disturb the Kachinski analysis applied to a post Act 57 modified job offer with the Employer, including the requirement that the job be within reasonable commuting distance of the Claimant.

A Review of 2006 Cases

A review of 2006 cases from the defense perspective by Daniel Diloreto for the Legal Intelligencer.

Analysis of Recent Commonwealth Court Cases on SERS Pension Offset

Law.com article with analysis of The Penn State Univ, et al. v. WCAB (Hensal) and DPW/Western Center v. WCAB (Cato).

Commonwealth Court Confirms WCJ Should Take Limited Evidence On Petition to Review Utilization Review That Is Granted For Lack of Records

In R. Gazzola v. WCAB (Ikon Office Solutions) the Employer's Utilization Review was granted when the treating physician did not provide records. The WCJ dismissed the Claimant's Petition to Review the Utilization Review Determination under County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).

The WCJ stated, however, that the better procedure would be to take evidence on whether the treating physician had an excuse for not providing records.

I presumed this authority in my post on Geisler on June 6, 2005.

The Court endorsed the procedure as stated by the WCJ. The WCJ may take evidence on whether there was an excuse for the failure to provide records, and if there is a reasonable excuse, the WCJ may Order that the URO be performed on the treatment at issue.

Results Similar With or Without Lumbar Disk Surgery

The New York Times covered a recent study from JAMA finding patients with ruptured lumbar disks recovered with or without surgery. The study also found there was no harm in choosing the non surgical route.

Articles On Passage of Act 147

Articles on the passage of Act 147 include a release by the Pennsylvania Chamber of Business and Industry and general information. The Chamber release states the changes will speed up the system and reduce the cost of litigation. The legislation will do this primarily by requiring scheduling orders and mediation, tools we have been using effectively in this area for some time.

The mediation provisions of the Act will speed up litigation in areas where mediation was not available before, but in workers' compensation the parties typically have to litigate to gain discovery of the facts of a case. There is no formal pre-hearing discovery procedure.

The parties can mediate at any time, but it is effective only when the parties understand what the evidence, and thus the value, will be. The Act does not require the mandatory mediation conference to be scheduled until thirty days prior to the date closing submissions are due.

I recently mediated a case not yet in litigation. The Employer had a favorable IME they did not act upon. The Claimant requested the mediation to see if the Employer would give a reasonable settlement offer before the Claimant was due to become Medicare eligible in a few months.

The case did not settle. The Claimant did not really consider the risk of termination from the IME because the Employer hadn't filed after receiving the report. The carrier did not want to pay a premium amount, because it had a favorable report in hand. We did not know what the Claimant's treating physician would say.

I brought them within $15k of each other, and the case may settle, but I would be concerned it would be an unjust settlement. Unjust to the Employer, under the present facts (remember, I read the IME). Then again, I didn't see anything from the treating physician.

The bottom line, however, is that there will be more mediation because it works. The parties should expect it and get prepared to request the mediation conference they are entitled to at the earliest reasonable opportunity.

"Spine" Journal Article About Use of Spinal Fusion

According to an article in the new edition of the journal Spine, rates of lumbar spinal fusion surgery for chronic back problems have increased in recent years, with no improvement in overall results and a significant increase in complications. Abstract

Abstract of a study comparing MRI findings in nurses and secretaries with and without low back pain.

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.