Supreme Court Grants Allocatur in Jeanes Hospital

Jeanes Hospital v. WCAB (Hass) is the case that holds a Claimant must file a timely Claim Petition to add to the description of injury. The Supreme Court granted Allocatur to rule on whether, consistent with Commercial Credit, "...filing a review petition is an appropriate procedure by which to seek amendment of a Notice of Compensation Payable, even if filed more than three years from the date of the workplace injury, in order to add to the description of the covered injury(ies) such consequential medical and psychiatric conditions which are alleged and found to have resulted from the workplace incident or injury identified in the Notice of Compensation Payable, but were not in existence at the time the Notice of Compensation Payable was executed."

Materials for Blair County Chamber of Commerce Risk Management Committee Presentation, September 12, 2003

These are the materials for the Blair County Chamber of Commerce Risk Management Committee Presentation, September 12, 2003.

Department of Labor and Industry News

Bureau of Workers' Compensation Quick Links Site

Employer's Guide to Workers' Compensation
Employer's Help Line (717) 772-3702

Safety Next

Ergonomics Today

Risk and Insurance

Leon E. Wintermeyer, Inc. and American General Group v. WCAB (Marlowe)

Daniels v. WCAB (Tristate Transport)

C. O'Donnell v. WCAB (United Parcel Service)

Petition to Review Utilization Review Determination Timely If Filed 30 Days After Bureau's Receipt

In P. Gallie v. WCAB (Fichtel & Sachs Industries) The Commonwealth Court affirmed the WCJ, who determined that Section 306(f.1)(6)(iv) of the Act can be read to allow a party to file a Petition to Review Utilization Review Determination within thirty days of the Bureau's receipt of the underlying Determination, even where this date was after the date the party actually received it.

Accordingly, if there is an issue about timely filing, the parties will have to check with the WCJ's office to determine the date of the Bureau's receipt of the Utilization Review Determination. This would be the date stamped by the Bureau on the Utilization Review: Determination Face Sheet. Pray that it is legible, because the receipt of this document was not recorded in the Bureau's Comprehensive Information Management System (CIMS) in the case I looked at.

PMA President and CEO to Webcast Presentation

John W. Smithson, President and Chief Executive Officer of PMA Capital Corporation, will make a presentation at Sandler O'Neill & Partner's 2003 Insurance Conference. The presentation will provide an overview of PMA Capital's operations and discuss the current market for the Company's specialty insurance and reinsurance products. The live audio webcast of Mr. Smithson's presentation, along with slides related to the presentation, can be accessed at www.pmacapital.com by going to the Investor Information page, clicking on News Releases to find this announcement and then clicking on the microphone icon next to this release.

John T. Kupchinsky Appointed Director of Bureau of Workers Compensation

Congratulations to John T. Kupchinsky, Esq. who was appointed by Department of Labor and Industry Secretary Stephen M. Schmerin as Director of the Bureau of Workers' Compensation. Article

HHS Answers HIPAA Questions.

By clicking on this link to the United States Department of Health and Human Services Q&A Site, you can review the position of HHS that HIPAA does not affect the disclosure of health information necessary for the processing or adjudication of a workers' compensation case, or to coordinate care in a workers' compensation case. The Q&As generally indicate all procedures for gathering records pursuant to state law require no further authorization of the Claimant.

Specific Loss Benefits Can Be Paid Concurrently With TTD Benefits

In Faulkner Cadillac v. WCAB (Tinari) the Claimant's specific loss was unrelated to a later injury for which he was receiving workers' compensation benefits. The WCJ awarded TTD benefits and specific loss benefits concurrently. The Employer argued the benefits should be limited by either the Claimant's pre-injury earning power or by the statutory maximum. The convention since Moran v. Glen Alden Coal Co., 36 A.2d 845 (Pa. Super. 1944) has been that the specific loss benefits would be paid at the end of the period of temporary total disability. The Commonwealth Court held, however, that since specific loss benefits are paid without regard to loss of earning power, they can be paid concurrently.

Comonwealth Court Remands With Direction On Appropriate Findings After Daniels

C. O'Donnell v. WCAB (United Parcel Service) is the first case to apply the Supreme Court's decision in Daniels to find a WCJ's decision to be not a reasoned decision in accordance with Section 422(a) of the Act. The Claimant had cervical injuries from lifting a 115 lb. box. The issues in the case were whether psychiatric treatment was related to the work injury, whether the description of injury should be expanded and whether recommended breast reduction surgery was compensable.

Five doctors testified: the family doctor, the Claimant's psychiatrist and orthopedist and the Employer's psychiatrist and orthopedist. The WCJ rejected opinions that psychiatric treatment was related and opinions that breast reduction surgery was related. The WCJ rejected opinions that the description of injury should be expanded. In the credibility findings the WCJ gave no reasons or nonspecific reasons why the doctors' opinions were credible or not credible.

The Board affirmed based on the Commonwealth Court's ruling in Daniels which held a WCJ issues a reasoned decision when he or she outlines all of the evidence considered, merely states the credible evidence upon which he or she relied, and sets forth the reasons for the ultimate disposition of the petition at issue.

The rub with applying this standard, according to the Supreme Court, was that a reviewing court would be charged with "imagining" the reasons why the WCJ was more convinced by the opinions the WCJ found to be credible. In O'Donnell, the Commonwealth Court gave just a taste of what it could imagine based on bits of five doctors' testimony, then remanded, holding that under the Supreme Court's Opinion in Daniels, the WCJ has to show his or her reasoning. The Commonwealth Court highlighted the quote from footnote 8 in Daniels: "One of the virtues of the legal profession -- and it is a virtue that certainly applies to the judicial decision-making process -- is that it depends upon reasoned articulation. Views are oftentimes shaped, molded, and changed in the very process of articulation."

The Commonwealth Court indicated in the Opinion that with articulated reasoning to support a credibility finding, the Court will: 1) review the record to be sure substantial competent evidence exists to support the elements of the WCJ's logical process; 2) assure that the WCJ's reasoning with respect to uncontroverted evidence is rational as required by Section 422(a); and 3) apply Wintermeyer review to determine whether the WCJ's "conclusions are based on capricious disregard of other evidence." In the case where this is "clear beyond doubt" the Court may engage in appellate review of the resulting credibility finding.

Legion Insurance Company Liquidation Decision Published

The Commonwealth Court published the Opinion in M. Koken v. Legion Insurance Company concluding Legion should be liquidated.

No Apportionment When New Injury Aggravates Old Injury

In South Abington Township, et al. v. WCAB (Becker, et al.) the Claimant had a work-related injury to his hip, returned to work, then suffered a work-related aggravation of the pre-existing hip condition resulting in hip replacement surgery. There were two carriers. The Commonwealth Court rejected the request of the later carrier for Section 322 apportionment. The Court stated where a second workplace injury aggravates the condition in which the Claimant was left by the first, it will allocate responsibility for payments based upon the impact each injury has upon earning power.

Bureau Issues Press Release on Medical Only Notice of Compensation Payable

An August 29, 2003 Department News post advises the Bureau is accepting various documents that purport to be a medical only Notice of Compensation Payable. The post further advises the Revised Notice of Compensation Payable form with a medical only check box is expected to be published in November.

Claimant Must Show Course and Scope of Employment Even When There Is a Late Answer

In W. Bensing v. WCAB (James D. Morrissey, Inc.), even though the Employer did not file an answer or appear at the first hearing, the Commonwealth Court upheld the decision of the WCJ and the Board that the Claimant was not in the course and scope of his employment when he was injured.

The Claimant, a construction worker, car pooled with his co-workers, and the Employer coordinated calls to the Employees to facilitate the car pool. However, the travel was not done in a company vehicle and the costs were paid by the Employees. They were traveling to a fixed place of employment.

The Court first held the Employer's non-response did not relieve the Claimant from proving he was in the course and scope of employment at the time of the injury, it only prevented the Employer from introducing contrary factual evidence. The Court then held the Claimant was not in the course and scope of his employment both under Foster v. WCAB 639 A.2d 935 (Pa. Cmwlth 1994) and the Ridesharing Act.