Concerns for the Court Reporting Industry.

Financial concerns of Kemper/Lumbermen's Mutual and Argonaut.

The Pittsburgh Tribune-Review has a good article with comments of many Western PA doctors on what to expect from surgery in a case of primarily back pain, as opposed to extremity pain.

Congratulations to Stephen M. Schmerin, Esq., nominated yesterday by Governor-elect Rendell to become Secretary of Labor and Industry. Link

The Commonwealth Court has issued an en banc decision holding that an Employer's failure to request an IRE within sixty days of the expiration of 104 weeks of total disability benefits precludes the Employer from requesting an IRE outside the sixty-day period. In Gardner v. WCAB (Genesis Health Ventures) the Court stated the plain language of the Act requires the IRE to be requested within sixty days. Furthermore, to allow an IRE to be done at any time after the expiration of 104 weeks would render the plain language meaningless. Accordingly, the Court ruled the regulation at 34 Pa. Code §123.102(f) is invalid. One would think §123.102(g) is also invalid where the regulation again substitutes "IRE" in the place of "independent medical evaluation" as set forth in Section 306(a.2)(6) of the Act.

Judge Cohn issued a dissent pointing out that the majority's decision would preclude the Employer from getting a later independent medical evaluation under Section 306(a.2)(6) of the Act when the Employer fails to schedule an IRE in a timely manner. The purpose of such an exam would be to establish earning power in conjunction with a vocational opinion. Judge Cohn correctly points out that a Claimant may not have reached Maximum Medical Improvement within sixty days after expiration of the 104 weeks, and an Employer should not have to schedule a wasted exam to avail themselves of an independent medical examination under Section 306(a.2)(6) in the future. It is important to note, however, that Section 314 also provides for IMEs.

The more interesting issue touched upon by Judge Cohn's dissent is the tolling of the sixty day period where the Claimant has not reached MMI. The statute states the IRE must be in sixty days "unless otherwise agreed upon." The Claimant's agreement should be presumed as a matter of law where the Employer shows the Claimant had not reached MMI and the Employer then requests the IRE. Judge Cohn's point that the Employer should not have to schedule a wasted examination is most relevant in this context.

In L.E. Smith Glass Co. v. WCAB (Clawson) the Supreme Court analyzed a factual scenario involving two different injuries and overlapping periods of disability associated with each. An important fact discussed in the decision was that the WCJ found both injuries were independently totally disabling. An important fact not discussed was that these injuries were with the same employer (different carriers), so Section 322 apportionment does not apply. The Supreme Court used the ultimate analysis of to what extent, if any, each injury diminished the Claimant's earning power, and stated this is the only test to be applied to determine whether both carriers had to contribute to the Claimant's benefit for any period. Although the record did not support a finding that the two injuries combined to diminish the Claimant's earning power during any period (because they were both independently totally disabling), the Supreme Court also stated a Claimant would be limited to whatever maximum actual earning power the record demonstrates. The Supreme Court introduced the "s" word to workers' compensation and held: "We reverse the Order of the Commonwealth Court to the extent that it permits Claimant to stack the benefits from the 1989 injury and the 1991 injury up to the statutory maximum."

In the Nova Scotia Court of Appeals, a worker's shift work maladaptation syndrome (SWMS) claim was dismissed on the basis that the condition was a subjective reaction to normal working conditions. Article

A San Francisco Chronicle column called "On the Fringe" gives us this: A law firm in California has a web site seeking claims of care givers (such as spouses) for care to injured workers. The premise is that if a care giver does something for an injured worker that the worker can't do because of the injury (cooking, cleaning etc.), the care giver is entitled to be compensated at the rate that the injured worker would have otherwise had to pay for the service.

The State of West Virginia has recognized the importance of compliance with the 21 day rule, a recurring theme of Bureau Director Thompson's State of the Union message. Link

The maximum rate for 2003 is $675.

The Commonwealth Court took a look at Section 302(a) of the Act and again looked past it to Section 302(b) and dismissed the Claimant's claim. These are the statutory employer sections, and they state a) a contractor is liable to employees of an uninsured subcontractor and b) an employer who controls premises is liable to a laborer or assistant hired by an employee or subcontractor to perform a part of the employer's regular business. Leibensperger v. WCAB (Thomas H. Lewis Builders) is a garden-variety case of an injured employee of an uninsured subcontractor. Like every case, the general contractor could and should have assured the subcontractor had coverage. The case falls under the plain language of the first paragraph of section 302(a).

However, the first half of the second paragraph of 302(a) contains the additional provision that a person who contracts with another for mineral removal or timber cutting is deemed a contractor. The Commonwealth Court held this vitiates the rest of the Section. The Court stated it would apply this Section only for these two activities.

The second half of the second paragraph re-emphasizes that a person who contracts with another to perform part of the person's regular business is liable. This person should assure subcontractors are covered, unless, apparently, the work is something other than mineral removal or timber cutting.

Moving on then to Section 302(b), there is the additional requirement of control of the worksite by the contractor for the contractor to be found the statutory employer. The Claimant in this case, like several that have come before him, could not prove this control element. The claims are dismissed, and the contractor who did not assure his subcontractors had coverage is relieved of liability.

Law.com has an article about blogs like this one and the best legal web sites of 2002.