Tuesday, December 31, 2013

Were Physical Therapy Treatments provided by a Medicare Part A provider or by a Medicare Part B provider? You'll never get an answer via a Medical Fee Review Petition.

Review of the "timeliness and/or amount" of Medical Fee Reimbursements.
The Pennsylvania Workers' Compensation Act provides that an Employer (Insurer) shall provide payment for reasonable medical services, related to a work injury. See: Section 306(f.1).

An Employer/Insurer may challenge the "Reasonableness and Necessity" of a medical expense via the Utilization Review procedures. Section 306(f.1)(6).

A Medical Provider may challenge the "Timeliness or Amount" of a payment via the Fee Review Procedures. Section 306(f.1)(5).

What if a question arises as to the "status" of the Physical Therapy billing entity and the propriety to reimburse treatments at the Medicare Part A rates or at the Medicare Part B rates?

That question is beyond the limited scope of Medical Fee Review Procedures...
so sayth the Commonwealth Court of Pennsylvania at Selective Insurance Company of America v. Bureau of Workers' Compensation Fee Review Hearing Office (the Physical Therapy Institute), No. 613 C.D. 2013, in a reported decision authored by Judge Leavitt, on December 6, 2013.

Factual Background
Employee injured his right shoulder at work. He was prescribed physical therapy modalities for treatment of his work injury. He received treatments at a facility called the "THE pt group". The worker compensation insurer received billing statements for this care from "The Physical Therapy Institute". [PTI].

Insurer DENIED any payment of these statements from PTI, stating PTI is not the entity which provided the physical therapy services represented on the submitted bill and therefore it is not entitled to payment under the medical cost containment provisions of the Act.

Insurer's legal brief asserted that:
"THE pt group" is a Medicare Part B provider and
"PTI" is a Medicare Part A provider.

The significance of this distinction is that there is a higher rate of reimbursement due to a Part A provider, compared to those due to a Part B provider.

Procedural Background 
PTI filed 2 Fee Review Applications.
The Bureau Medical Fee Review (MFR) section "determined"  in their administrative review (without a hearing, testimony or evidence) that the amounts billed were correct and directed Insurer to make these payments to PTI, together with statutory interest of 10%.
The MFR section stated: "Insurer did not provide a valid denial".

Insurer filed a Request for Hearing to contest the fee review determination, seeking a de novo hearing on both administrative determinations.
This matter was assigned to a Hearing Officer.
The parties appeared at a hearing and agreed the threshold issue was whether the Bureau had jurisdiction to decide the question of whether PTI was a medical provider, entitled to payment.

Penalty Petitions were also filed by Employee and they were pending consideration by a WCJ, after the parties made an "enormous" evidentary record. A "critical" issue was whether PTI was a "provider".

Bureau Hearing Officer Determination
The Insurer's Requests for Hearing were dismissed.
The Jurisdiction of the Medical Fee Review is limited to disputes over the amount or timeliness of payments. Here the issue was the status of PTI as a medical provider. This issue should be litigated before a WCJ.
[... it was pending].

Insurer's Commonwealth Court Appeal
At this juncture, Insurer had administrative determinations directing payments to PTI!
There was no relief available, in the form of a Bureau Hearing!.
Yes, the penalty petitions were still pending before the WCJ, but Insurer was in a vulnerable position.

Insurer filed an appeal to the Commonwealth Court.
Properly Insurer requested a supersedeas of medical expense payment ...
and the Commonwealth Court appropriately granted this supersedeas.

Commonwealth Court Decision
Insurer argued: 
(1) the Bureau erred in concluding it lacked jurisdiction of the issue of whether PTI was a "provider"
(2) in the alternative, the Bureau erred in failing to dismiss the Fee Review administrative determinations, when it dismissed Insurers' request for hearing.

Court rejected argument (1). 
The Fee Review process is limited to simple issues of payment amounts and timeliness.
The Fee Review process presupposes liability for medical expense payments has been established. (citing Nickel v. WCAB, 2008).
In cases where liability for a treatment is at issue, the claimant, not the medical provider must pursue that issue before a WCJ. (citing Crozer Chester M.C. v. Dept L&I, 2011).

Court accepted argument (2).
The parties have no dispute amount the amount billed.
The "critical" issue was always whether PTI provided the treatments such that it is a "provider" under the Act, entitled to seek a Medical Fee Review.
A WCJ must rule upon the issue of whether PTI is a "provider".
This is an issue which is beyond the scope of administrative medical fee review.

The MFR section should not have ordered Insurer to pay PTI.
This error was compounded by the Bureau leaving the fee review determinations in place.
If the Bureau lacked jurisdiction to decide the issue of liability for payment, then it also lacked jurisdiction to consider the initial PTI fee review requests.

Practice Pointers:
1.The procedural arguments serve as an excellent illustration of the necessity for experienced legal counsel in review of medical fee issues. Often, Insurers "wait until it it too late" to involve their legal counsel in the deliberative process of selecting an appropriate remedy.  Here the expenses at issue were about $3,000. But, in many cases, medical treatments remain ongoing, generating a greater liability.
The "cost" of one telephone call is worth the valuable advice one gains.

2. The factual background of this case references the pending penalty petition litigation, which was filed by employee. In this situation, where the Insurer disputes the entitlement of PTI to any payment, the decision to deny all payments will generate a Penalty petition filing. It is difficult to avoid the penalty in this scenario.

3. One compromise position may be to pay the PTI billing statements for treatment at the Medicare Part B rates... BUT this payment may not eliminate the time and expense of penalty petition litigation ... BUT it may place Insurer in a more favorable position to prevail before the WCJ regarding the assessment of any (discretionary) penalty.

Tuesday, December 17, 2013

The PA Work Comp Act as the Exclusive Remedy of the Employee ...an additional Occupational Disease remedy

A New Rule for consideration of Employer Occupational Disease Liability
The Pennsylvania Workers' Compensation Act applies to all injuries occurring within the Commonwealth. (Section 101, 77 P.S. 1).

In 1972 the Workers' Compensation Act was amended to include injuries (not just "accidents") and occupational diseases (formerly covered under the Occupational Disease Act of 1939).

The Employer's liability to the Employee under Workers' Compensation Act, is said to be the Exclusive Remedy of the employee, on account of any injury or death or occupational disease. (Section 303(a), 77 P.S 481(a).

The recent decision of the Supreme Court of Pennsylvania at Tooey v. AK Steel Corporation, No. 21 WAP 2011 decided November 22, 2013, has altered our understanding of these Exclusive Remedy provisions and their application to remote Occupational Disease claims.

"The Holding"
Occupational Disease disability, which does not manifest within 300 weeks of the last date of employment, is not compensable pursuant to the time limitations in Section 301(c)(2) definition of injury.
HOWEVER, where an Occupational disease is not compensable under the Workers' Compensation Act, due to the expiration of the 300 week period...


The majority opinion of the Supreme Court (5-1), authored by Madame Justice Todd reversed the decision of the Superior Court which concluded that injury which resulted from workplace exposures and manifested more than 300 weeks after the last employment were not "compensable" and did not render the exclusivity provision inapplicable.

1. The Statutory Interpretation Argument
This Supreme Court opinion reflects a well-crafted, if not elegant,
The definition of injury (section 301(c)(2)) states that "the term injury ... as used in this act, shall include occupational disease as defined in section 108 of this act... provided that whenever occupational disease is the basis for compensation ... it shall apply only to disability or death resulting from such disease and occurring within 300 weeks after the last date of employment...".

There was an extended discussion of the Employee and Employer arguments regarding the meaning of the word: "it", in the above passage.
Employee argued that the word "it" refers to "this act".
Employer argued that the word "it" refers to "the basis for compensation".

2. What do these arguments mean?

"If I had a world of my own, everything would be nonsense. 
Nothing would be what it is, because everything would be what it isn't. 
And contrary wise, what is, it wouldn't be, it would. You see?" 
Lewis Carroll, Alice's Adventures in Wonderland & Through the Looking-Glass.

Employees read section 301(c)(2) to mean the Act only applies to injury or diseases occurring within 300 weeks ... the act does not apply to injury concurring more than 300 weeks later ... If the Act does not apply ... it cannot preclude one's rights, so Employees' can file a civil action against their Employer.

Employers read section 301(c)(2) to mean that the Act applies to all injuries and diseases, BUT compensation is available only for disability occurring within 300 weeks!

3. Revenge of the Nerds
YES all of you English majors can read about rules of grammar concerning restrictive and non-restrictive clauses and the significance of punctuation placement of the commas in the statutory interpretation.

The Court: "Upon review, we find [Employee's] interpretation of the language of Section 301(c)(2) to be the most reasonable one." slip opinion page 11).

The Act shall only apply to disability or death occurring within 300 weeks of the last employment
If the Act does not apply to disability or death manifesting beyond 300 weeks, the Act does not preclude a civil action remedy for the employee.

4. The Act as a replacement of the Common law Tort Actions
The traditional notion of the "bargain" of the Employer and Employee is discussed.
The Employee gives up the right to damages beyond wage loss and medical expense.
The Employer gives up its common law defenses.

The Employer assumes liability without considerations of fault, in exchange for relief from the possibility of larger damages.

Then We encounter the oft-repeated maxim:
... however the Act is " remedial in nature and intended to benefit the worker, and therefore must be liberally construed to effectuate its humanitarian purposes".
[ IMHO this phrase never adds anything to the discussion]

5. So how do we get around this exclusive remedy thing?  (ie. the good stuff)
If the employee is not able to seek compensation for disability from an injury/disease arising 300+ weeks later, then the "quid pro qou" of the Act cannot be effectuated!
The employee is giving up all of his rights, without any reasonable opportunity to any compensation.
The employer is granted full immunity, under the illusion that there is no-fault liability for work injuries.

6. If there is no determination of compensability available under the Act, then the Employee civil action is not barred by the exclusive remedy provisions of the Act. 
The Court cites prior cases where an employee did not have a work comp remedy and was allowed to pursue a civil action:
i. Lord Corp, where there was no work comp litigation of the disability and death from the employee's chemical exposures,
ii. Boniecke, where employee was denied relief under the Occupational disease Act,
iii. Greer, alleged pulmonary fibrosis, an occupational disease as a result of Employer negligence.

7. Conclusion: Because the claims are not compensable under the Act, the exclusive remedy provision of Section 303(a) does not bar the common law claims against the employer. (slip opinion page 15).

Employer argued there is a difference between coverage of the Act and compensability under the Act!
The Act applies to all work injuries ... but not every claimant wins!
An employee with an occupational disease manifesting disability more than 300 weeks later, cannot obtain workers compensation benefits, but he may have a civil remedy against non-employer defendants.

Employer unsuccessfully argued that the Act is the employee's exclusive remedy, even when compensation is not available. Several examples in support of this argument are:
i. Kline, claim for damages for impotency from a work fall,
ii. Moffett, partially disabled worker not entitled to OD Act benefits.

The Majority cites Section 305(d) which allows a civil action against an uninsured employer for the proposition that there exists a dual system of recovery ... whereas Employer's arguments for an exclusive remedy would result in no remedy for the employee.

"It is inconceivable that the legislature, in enacting a statute specifically designated to benefit employees, intended to leave a certain class of employees, who have suffered the most serious of work-related injuries, without any redress under the Act or at common law."

"... the legislature did not intend the Act to apply to claims for disability or death resulting from occupational disease which manifests more than 300 weeks after the last occupational exposure".

The dissent, authored by Mr. Justice Saylor provides a well reasoned response.
He notes the legislative "line-drawing" involved in drafting any time requirement for compensability.
He emphasizes the difference between coverage of the Act and the compensability of a claim under the Act.

Claims for disability occurring more than 300 weeks after the last employment are "covered" by the act, but they are not "compensable" under the Act. If desired, the legislature may amend this provision.

Practice Pointers:
1. The Supreme Court has spoken.
This is the law. For now. Perhaps the Legislature will review this issue at a future date.
This is another "exception" to the Workers' Compensation Act, as the exclusive remedy of the employee against one's Employer for "damages" alleged as a result of a work-related harm.

There have been other exceptions, but those exceptions have been for damages not covered by the act, such as the harm from the fraudulent misrepresentations of the employer, where the employee was exposed to lead (Martin v. Lancaster Battery) or the harm of defamation, from the employer's handling of the an employee's seemingly threatening statements (Urban v. Dollar Bank).

Can this exception lead to other exceptions?

2. The Majority opinion artfully interprets the statutory language at 301(c)(2), which heretofore was considered a limitation upon the extent of work comp liability for remote effects of occupational disease.
What was once a limitation, has now been interpreted to allow an additional remedy for civil liability and recovery.

3. In the end result, one would assume that the insurance costs will increase for employers in industry with potential exposure to hazardous exposures, as the liability for remote disability has moved from the category of "uncompensated work comp claim" to the "possible civil liability claim".

4. The remote nature of these potential claims poses a defense nightmare. Perhaps as many businesses move to a computer-based document retention world, the pertinent medical records should remain available for examination. Hopefully the documentation of workplace exposures remains equally available for review and consideration.

5. Industries involved with materials that may pose an remote occupational hazard are prudent to assure retention of pertinent work records, particularly regarding employee job assignments.

Monday, December 9, 2013

Back to the FUTURE... Son of Kachinski

Back to the FUTURE ...
In 1996 the Pennsylvania Legislature amended the Workers' Compensation Act, to allow an Employer a remedy for Modification of wage-loss benefits based upon proof of the post-injury earning capacity of an injured worker via Vocational Expert opinion evidence.

Prior to the 1996 amendments, an Employer was required to establish the proof of the post-injury earning capacity via production of a job referral (a job offer) to employee. If employee was not hired, wage-loss benefits continued ... 

Unless the employee was not hired due to a "bad faith" effort in the job application process. In that instance,  the Work Comp Insurer would produce testimony and documentary evidence from the Vocational Expert and prospective employer(s) to provide substantial evidence of a bad faith response of the injured worker. 
If the WCJ found evidence of bad faith, the Employer could be granted a Modification of benefits, even without an actual job offer or a actual return-to work.

This Wage-Loss Benefit  Modification method was known as the "Kachinski" standard, based upon the 1987 decision of the Pennsylvania Supreme Court. 
(Kachinski v. WCAB (Vepco Construction Co., 532 A.2d 374 (Pa. 1987).

One may read the dozens (hundreds) of appellate case reports which addressed the factual matrix for a "good faith" job application by employee versus a "bad faith" presentation.

... it appears we will now re-visit this laborious process, based upon the recent decision reported at Phoenixville Hospital v. WCAB (Shoap), No. 32 EAP 2011, authored by Mr. Justice McCaffery on November 21, 2013.

Factual Background
In 2003 Shoup injured her left shoulder at work.
Total disability wage loss benefits were commence via NCP.
Employer filed a Petition for Modification of Total disability benefits to Partial Disability benefits, based upon medical and vocational expert reports that employee had a post-injury earning capacity.

Employer medical Expert Sattel opined she could return to sedentary duty work.
Employer Vocational Expert Kimmich opined she has a post-injury earning capacity based upon the identification of 5 "open & available" job.

There were 2 Labor Market Survey (LMS) reports, July [3jobs] and August [2jobs] of 2007

Employee Medical Expert and Vocational expert testified she could not work at any of the 5 positions identified in the Kimmich LMS.

Employee testified that she actually applied to the first 3 positions on July 30, 2007 after she received the July LMS report. She applied to jobs 4 and 5, had telephone interviews, but was not hired. Employer #5 told her she was not qualified as she lacked familiarity with a certain computer program.

WCJ Decision
WCJ found Employer's Medical & Vocational Experts more credible that Employee's Medical and Vocational experts.

...BUT the WCJ found Employee was credible that she made a "genuine effort" to secure any one of the 5 jobs in the LMS, and she did not receive a job offer.

The WCJ found that Employee "has established that in good-faith, she followed through on all of the jobs referred to her by the Employer and that none of the referrals resulted in an offer of employment'. [ note the "Kachinski-esque" language].
For this reason, Employer failed to establish its right to a Modification of benefits under Section 306(b).

WCAB Decision Affirmed
Modification of Benefits could not be based simply on whether Employer had identified job listings within Employee physical restrictions and geographic area, where Employee produced credible evidence that the jobs were in actuality not available to her.

Commonwealth Court REVERSED
Employer met its burden of proof under Section 306(b), as the LMS jobs were "open & available" at the time the LMS was conducted.

It was not relevant that Employee "followed through" on these job listings in "good faith".
[slip opinion page 9].

... BUT Commonwealth Court would not consider job #5, as the job remained open after her interview... the job opening "existed" but it was not available to her. [hmmmm ...?]

Supreme Court Reinstates WCJ denial of Modification
Their  reasonable reading of Section 306(b) ...
one that comports with a commonsense reading of the statutory language "substantial gainful employment that exists" (as well as the Act's humanitarian purposes) is an interpretation that "the proof required to modify/suspend employee's wage loss benefits must rest upon the existence of meaningful employment opportunities and not the simple identification of jobs in want ads or employment listings.
[this is not a term in the statute passed by the Pa Legislature]

Vocational Expert opinion evidence under Section 306(b) functions, not only as a means of demonstrating that there are open jobs that exist within an employee's limitations BUT also as a mechanism for providing the employee with NOTICE of the existence of these jobs, which thus provides A SERIOUS OPPORTUNITY TO SECURE EMPLOYMENT. [slip opinion page 21].

Accordingly an employee must have latitude, greater than that allowed by the Commonwealth Court, to PRESENT EVIDENCE REGARDING HER EXPERIENCE WITH APPLYING FOR THE JOBS IDENTIFIED BY THE EMPLOYER'S VOCATIONAL EXPERT WITNESS.
[slip opinion page 22].



1. Continue to assign Vocational Experts and obtain Post-Injury Earning Power Assessment evidence via Labor Market Surveys. 

This remains a valuable remedy in the handling of PA work comp cases.

2. Confirm that your Vocational Expert will continue to monitor the Employee's post-report application efforts with the prospective employers identified in the LMS.

3. Obtain notarized statements form each prospective employer regarding the details of employee's application. Anticipate that you will need to produce these witnesses as rebuttal to Employee's assertions.

4. One "old" Kachinski strategy was to schedule an application time and/or interview time for the Employee so that the vocational Expert could attend and observe the application process with the prospective employer ... this may remain an effective strategy!

I will refrain from my personal commentary regarding the complete abrogation of the statutory language that "earning power" SHALL ( one of those mandatory... got to do it... words)
be determined by expert opinion evidence. These words are plain, easy to understand (for most) and an unambiguous expression on the Legislative intent of Section 306(b).

Unfortunately, this opinion corrupts that Legislative intent.

Friday, November 22, 2013

NWCDC 2013

Attending the National Workers' Compensation and Disability Conference in Las Vegas, Nevada.

Thursday, November 14, 2013

Hearing Loss Claim - A Well Documented, Successful Defense

The requirements for establishing a claim for benefits for work-related hearing loss are set forth at Section 306(c)(8) of the Pennsylvania Workers' Compensation Act.

The burden of proof is on the claimant to establish that he/she suffers from a permanent hearing loss of 10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise.

Significantly, whether the employee has been, in fact, exposed to hazardous noise is not part of the claimant's burden of proof. Rather, it is an affirmative defense that may be asserted by the employer; that the claimant's exposure to noise was not hazardous or was not long-term.

The availability of information regarding work exposures and medical evaluation results, may impact the success of each party's position.

McCool v. WCAB (Sunoco, Inc.), No. 783 C.D. 2013, an opinion of the Commonwealth Court of Pennsylvania, authored by Judge Covey on October 18, 2013 reviewed claimant's entitlement to hearing loss benefits.

Factual and Procedural Background
Employee worked with Sunoco for five years from 2003 to his resignation on March 20, 2008.
He worked "office jobs" from 1998 to 2003.
Earlier, Employee was a Philadelphia firefighter for nearly 15 years, from November 1983 to October 1998.

Sunoco History
Employee alleged exposure to noise in his employment with Sunoco in his duties as an operator apprentice and refinery operator. The equipment and the refinery process was said to cause "extreme"  noise.
He would occasionally report to a block house, where there was a restroom, kitchen and equipment with fans and motors. He alleged this was also noisy.

Sunoco furnished and required the use of personal hearing protection. Approximately 12 different types were available. He did not have to wear earplugs in the blockhouse, so he only wore them when he was outside. He communicated with coworkers via walkie-talkies. In his last year of employment he wore headphones that permitted communication without a walkie-talkie.

Firefighter History
During his employment as a firefighter he was exposed to noise.
[This is the extent of the description of "noise" exposure in his employment as a firefighter.].
In April 2001 Employee had an audiogram, as a number of firefighters were examined and were pursuing hearing loss claims. He saw the union examining expert, Dr. Gold.
At this time his audiogram did not show an impairment, sufficient to file a claim.
[As later developed, this scenario becomes significant when the issue of notice and Employee's knowledge arises].

Employee underwent a Pre-Employment audiogram with Sunoco in December 2002 and then on an annual basis, thereafter. The 2002 audiogram showed a pre-existing hearing loss that continued to accelerate across all frequencies at each yearly re-test.
[Note: rapid loss and loss across all frequencies is not typical for occupational hearing loss].

In 2006/07 at Employee's request, his family physician made a referral to a hearing specialist, Dr. Stuart Scherr. At this time employee started wearing a hearing aid.

Employee Medical Expert
August 2, 2010,  Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment as a firefighter.
October 4, 2010,  Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment with Sunoco.
[there is reference to a July 7, 2010 exam and audiogram, so it appears there was not a 2nd exam].

Employer Medical Evidence
Dr. Lee D. Rowe examined employee on February 17, 2011, conducted an audiogram and reviewed the prior medical records and audiograms.
The history included a past skull fracture as a youth, which could cause auditory nerve damage and later progressive hearing loss.

Audiogram results showed a significant difference in loss of high frequencies, left was far worse than the right
Dr. Rowe calculated a binaural hearing loss of 52.5% in accord with the AMA guidelines.
This was a significant acceleration during the short time period from the Dr. Shapiro audiogram in July 2010.
[Remember Employee stopped working in March 2008; ie., no more noise exposure!].

Dr. Rowe reviewed the prior medical records and audiograms and noted:

  •  No AMA impairment at the time of the December 2002 Sunoco pre-employment exam;
  • audiograms after the firefighter and before Sunoco showed the beginning of an acceleration process that was not due to noise exposure; ie, when employee worked the "office jobs"; 
  • this progression of loss accelerated during Sunoco employment;
  • the start of hearing loss in 2005/06 was consistent with age-related hearing loss at age 53-54 years;
  • employee utilized hearing protection when employer with Sunoco;
  • asymmetrical hearing loss was consistent with the childhood skull fracture;
  • asymmetrical hearing loss is inconsistent with occupational noise induced hearing loss;
  • employee had other risk factors associated with hearing loss progression;
  • the dramatic increase in AMA impairment from 2010 to 2011 was inconsistent with occupational noise induced hearing loss.

WCJ Decision
In the Claim Petition litigation, the WCJ rejected the conflicting Shapiro reports as not credible.

The WCJ rejected employee's testimony as to when he knew his hearing loss was work related, as it was inconsistent with his prior knowledge from the 2001 testing and attorney meetings regarding a possible claim as a Philadelphia firefighter.

Employer medical expert, Lee D. Rowe, M.D. was found credible.

Commonwealth Court Appeal
Employee argument that the WCJ placed the burden of proving an exposure to hazardous noise upon him, was rejected.
Employee argument that the WCJ decision was not supported by competent evidence was rejected.
Employee's argument that the WCJ decision was not reasoned, was rejected.

Practice Pointers:
1. This litigation result demonstrates the value of obtaining detailed and complete medical records and employment history. This information allowed the medical expert to provide a well documented analysis of the non-occupational basis for employee's hearing loss.

2. In some cases, it is not possible to gather complete records. Information regarding past work environments, may be limited. This may compromise the ability of the medical expert to draw conclusions regarding the occupational or non-work causes of hearing loss. 

In this instance, I recommend focusing your discovery efforts on the medical records, as a means to document your causation arguments.

Thursday, November 7, 2013

PA Supreme Court awards State Trooper benefits for Abnormal Work Condition

An Employee claim for disability from a "mental-mental" psychic injury must establish the injury is a result of abnormal work conditions. For work conditions to be considered abnormal, they must be considered in the context of one's specific employment.

At times, appellate courts have struggled with this issue: What is "abnormal" for a job position which entails, stressful, difficult situations, such as encountered in employment as a police officer or other first responders?

Payes v. WCAB (Commonwealth, PA State Police), No. MAP 2011, an opinion of the Supreme Court of Pennsylvania, authored by Mr. Justice McCaffery on October 30, 2013 addressed this issue.

Factual and Procedural Background
Employee was a PA State Trooper for 12 years.
One evening a woman, dressed in black, ran in front of his patrol car. The car struck her. He administered mouth-to-mouth resuscitation, but she could not be revived. It was later discovered she was mentally disturbed and was seen walking near the highway, prior to this incident.

He was off work for about 5 weeks and then returned to office work, not his normal patrol duties. After 4 days he had recurring feelings of anxiousness and stress. He believed he could not continue to perform his duties as a State Trooper.

Employee filed a claim petition for total disability as a result of Post-Traumatic Stress Disorder (PTSD) from this incident. Employee testified. His Commander testified regarding police training, including stress management, automobile accident response and rendering first aid to accident victims. He described another incident where an individual was struck and killed while dashing in front of an officer's vehicle. Two Troopers testified regarding Employee's return-to-work attempt.

Employee medical experts diagnosed disability as a result of PTSD from this work incident.
Employer medical expert opined employee recovered from the PTSD condition.

WCJ Decision Awarded Benefits
WCJ assigned credibility to Employee testimony and to that of his medical experts.
WCJ found this incident was not a circumstance one would be exposed to in the normal course of performance of one's work duties.
Although state troopers may expect to encounter or be involved in violent situations; such as death, murder, horrible accidents, use of deadly force; this particular incident is not one normally encountered or expected of state troopers.
Employee's mental injury and disability was caused by this abnormal work condition.

WCAB and Commonwealth Court disagreed with the WCJ award.

Commonwealth Court [5 A.3d 855, Pa. Cmwlth. 2010] reasoned that employee's injury did not result from abnormal work conditions.
The events that occurred may have been unusual, but they were not so much more stressful and abnormal than the already highly stressful nature of employee's employment. He was trained to respond to emergency situations and accidents, he was trained to render first aid, it was not extraordinary for him to respond and have a person suffer fatal injuries.

"[Employee], who works"in the line of employment" of a police officer, can be expected to be witness to horrible tragedy... These events will not be deemed "extraordinary" or "abnormal ...".

But for the one "unusual" fact, that Employee was "the one" who struck and killed this individual, there would be no question that a mental-mental injury would not be compensable under these circumstances.

Supreme Court Majority Opinion
The Majority states that the question of whether a claimant has been exposed to abnormal working conditions is a mixed question of law and fact. "Appellate review of this question is a two-step process of reviewing the factual findings and then the legal conclusion.". Slip opinion page 9 and page 10 citing RAG Cyprus Emerald Resources, L.P. (Pa. 2007).

[Writing in dissent, Mr. Justice Eakin correctly finds this to be a settled matter, the question of whether factual findings establish an abnormal working condition is a question of law. citing Martin v. Ketchum, 568 A.2d 159 (Pa. 1990). Mr. Chief Justice Castille [separately writing a concurring and dissenting opinion] agrees with this dissent argument regarding the standard of review.

The gist and relevance of the McCaffery opinion "mixed question" discussion appears to be the "deference" to the WCJ fact finding.
[If you lose the credibility arguments before the WCJ... you will always lose the case! mds].

This sophist argument is taken to its logical conclusions in this case.

The WCJ drafted finding #13, that State Troopers are not, in the normal course of their duties, exposed to the circumstances that occurred in this case...
"... this factual finding is based upon undisputed evidence of a singular extraordinary event occurring during [Employee's] work shift, was founded on substantial evidence of record." slip opinion page 16.

In my opinion, the short-coming of this analysis is that a "unique" set of circumstances must be "abnormal, precisely because it is a unique set of facts, not because those facts culminate in an abnormal work condition.
Unique is not the equivalent of abnormal.

Practice Pointers:
1. This decision, with its faulty analysis should have a limited impact, as mental-mental injury claims are not very prevalent. 

Query: will Claimant Counsel be more likely to file mental-mental claims if they know that they can prevail on appeal, if they prevail before a sympathetic WCJ?

2. The defense handling of the mental-mental case remains the same. One must thoroughly explore the claimant's past history. One must document the work duties of the claimant, including the "regular" duties, in additional to the less frequent occurrences in the work place.

NOTE: my law partner Jim Mazzotta handled the appeal in this case, after the WCJ litigation.
I did not participate in this case.

Thursday, October 31, 2013

Court abruptly expands "Discovery Rule" for Notice of Injury in Trauma Cases

An injured Employee must provide notice of injury to the Employer within 120 days of the occurrence of the injury. If the Employer does not have actual knowledge of the injury, the injury claim is barred, where the Employee does not provide timely notice of the work injury.

This timeframe for providing notice of injury to the Employer, is extended, in cases resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employee.

In this circumstance, the time for providing notice of the injury, shall not begin to run until the employee knows , or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to the employment. This is commonly referred to as the "Discovery Rule" of notice.
See: Section 311, 77 P.S. 631.

A dichotomy has existed between traumatic injury claims and occupational disease claims for the standard for notice of injury to the employer. Simply stated, the discovery rule was limited in its application to occupational disease and hearing loss claims.

A Recent Commonwealth Court decision may have unknowingly altered that long-standing analysis!

A&J Builders, Inc. v. WCAB (Verdi), No. 479 C.D. 2013, a published opinion of a panel of the Commonwealth Court, authored by Judge Simpson on October 16, 2013, addressed this "notice" of work-related injury issue.

Factual and Procedural Background
Employee was a commercial drywall carpenter for 33 years. The last 10 years he received employment assignments from the union hall with various employers.

A&J employed him from August 2004 to September 25, 2007.
J.D. Miller employed him for 3 days, until his final work day of October 6, 2008.

He filed a claim petition in June 2009 against J.D. Miller for total disability from repetitive trauma to his right knee. The "date of injury" was October 6, 2008, his last day of work with JDM.

He filed a claim petition on July 10, 2009 against A&J for total disability from repetitive trauma to his right knee. The "date of injury" was September 25, 2007, his last day of work with A&J.
He sought benefits commencing October 6, 2008.

A&J filed Joinder Petitions of other employers of this individual.

Employee Testimony
His work duties included climbing up and down scaffolding, with carrying and installing drywall panels.
In 2004 he had right knee surgery while working with Heartwood Construction.
After surgery, he returned to work without any restrictions and performed his regular job duties.
At this point he was working with A&J.
He said these work duties caused his right knee pain to return.

In 2006 he started treating with Peter Vitanzo, M.D. for right knee pain.
Employee said he was not sure whether there was a relationship between his work duties and his knee pain. His doctor did not tell him there was a relationship. Slip opinion page 3.
[exercise of reasonable diligence?]

When he stopped working with A&J (Sept 25, 2007) he said he always had right knee pain. He told Dr. Vitanzo that squatting, kneeling, going up and down increased his pain. [But apparently Dr. Vitanzo remained silent as to the cause of these pain complaints!?]

He worked with several other employers in the timeframe from September 26, 2007 to October 3, 2008.
The "last" employer was JDM. He performed his usual drywall carpenter duties. By his last day on October 6, 2008 his right knee filled with fluid and was "hard as a rock".

He stopped working for JDM because the job was finished and he was "laid off".
His pain did not go away when he stopped working, rather it worsened.
[Apparently this pain had not "gone away" since 2006!]

Employee testified that he began to treat with Dennis P. McHugh, D.O. for his right knee in January 2009.
On March 31, 2009 his physician informed him "for the first time" that there was a causal connection between his right knee pain and his work duties.

Employee Medical Expert
Dr. McHugh testified of his review of the 2006 records of Dr. V.
Employee complained of flare ups with squatting or bending.
Dr. V. told him it was to be expected given his underlying arthritis.
Dr. V's 2006 notes did not express any further opinion regarding causation.
[... exercise of reasonable diligence...?]

January 2009, Dr. M. diagnosed crepitus in the patellofemoral knee joint.
February 2009 MRI showed advanced arthritis under the knee cap.
March 31, 2009 exam Dr. M. diagnosed "Chronic repetitive work-related chondral wear in the patellofemoral joint of the right knee, which is irreversible".

This was the first time he informed employee that there was a connection between his right knee condition and his work duties. 

Dr. M opined employee was disabled from working as a drywall carpenter due to this condition.
Dr. M opined the work duties with A&J and with JDM both materially aggravated the underlying knee condition. As he worked longer with A&J, he sustained more damage there, compared to his brief employment (3 days) with JDM.

A&J - no medical evidence?

JDM medical expert opined employee has age-related degenerative joint disease of the right knee. He was disabled from work, but this was not related to his job duties. He conceded the knee symptoms were due to chronic repetitive work-related wear in the joint.
He opined the 3 days of work with JDM did not substantially contribute to the right knee arthritis.

WCJ decision:
Employee testimony was credible in its entirety..
Found Employee medical expert credible that A&J work duties materially aggravated the underlying knee condition and caused employee's disability.
Rejected that part where he said JDM work duties also materially aggravated the underlying knee condition.

Rejected Employer medical expert opinion, except for that part where he said JDM duties were not a material aggravation.
***[I never like this "pick and choose" single sentences from medical testimony, either you believe one version of the medical expert analysis or you believe the other!]

Employee met his burden of proof, he was disabled as a result of the work-related material aggravation of his pre-existing degenerative knee condition as a result of his work with A&J.

Appellate Review 
A&J appealed.
WCAB affirmed this defective WCJ decision.
A&J appealed to the Commonwealth Court. The court also affirmed this defective WCJ decision.

Commonwealth Court Reasoning:
Employer A&J argued:
 (1) Notice Issue. Employee did not provide timely notice of injury with 120 days of his last employment. As the last day of employment is the "date of injury" in a repetitive/cumulative trauma-type injury, his claim must fail. Employee failed to exercise reasonable diligence;

(2) Liability Issue. It was an error to not assign liability to the last-in-time employer (JDM) in a repetitive/cumulative trauma-type injury.

Notice Issue
Court reviewed language at section 311. Court read the "or any other cause in which the nature of the injury or its relationship to the employment is not known to the employee" phrase.
Court concluded this phrase could apply to this traumatic injury.

Court cited Pa Supreme Court case in Sell, in support of its conclusion.
Sell was an occupational disease claim!
Court rejected the logic of Allegheny Ludlum case, a trauma case where notice was not timely.

Court repeats"credible" employee testimony, that he did not know of work-relationship of his knee condition to work duties until doctor "told" him on March 31, 2009. Slip opinion page 13.

Employer's "reasonable diligence" argument is rejected. Employer argued employee "knew or should have known" of a possible work-relationship as early as 2006, when he went to a medical specialist, an orthopedic surgeon, and continued to treat for years.
This constructive knowledge argument was rejected.
[do we actually believe that patients and medical professionals do not discuss what caused them to come in for treatment of pain symptoms, particularly in a surgically repaired knee?].

Liability Issue
Why is JMD not responsible for benefits?
The general rule is that, where an  intervening incident materially contributes to a renewed physical disability, the worker has suffered as new injury or aggravation. S. Abington Twp. v. WCAB (Becker) 831 A.2d 175 (Pa. Cmwlth. 2003). An aggravation of a preexisting condition is deemed a new injury, rendering the employer at the time of aggravation responsible for benefit payment.

Why is there no finding of a "new injury" with the last JMD employment?
To the extent Employee's medical expert determined that Employee's work at both A&J and JDM materially aggravated the underlying knee condition, the WCJ rejected the portion of testimony that the brief employment at JDM was a a material aggravation, or new injury.
The WCJ is free to accept or reject the testimony of any witness, in whole or in part, blah, blah, blah.
Decision affirmed.

The existing Case Law regarding the Discovery Rule and Trauma Injury

The extension of a "discovery rule" for notice of a work-related trauma injury was rejected in:

1976 WCAB v. Niemann
1977 WCAB v. Griffith
1986 Young v. WCAB (Jones & Laughlin Steel Corp.) [MDS case]
1990 Eddy v. WCAB [Fried Kane case]
1990 Bolitch v. WCAB
1991 Berisford v. WCAB
1993 Arthrell v. WCAB

In my opinion the Court affirmed the award of benefits, based upon an incorrect reading of the existing caselaw regarding the notice requirement for a work-related traumatic injury.
Although the WCJ it the final arbiter of credibility and weight of the evidence, this is not a credibility issue.

As a matter of law, it is obvious there is no testimony or evidence that employee provided notice to A&J of his traumatic injury within 120 days of his last date of aggravation of his pre-existing condition.

Accordingly, this claim petition should properly be dismissed.

Tuesday, October 22, 2013

Dear Insurer, Would you please pay for my Massage? ... Thank You!

Massage as a "Reasonable and Necessary" work-related Medical Treatment.
An Employer is responsible for reimbursement of medical treatment expenses which are:
Necessary and
Causally Related to a compensable work injury.

An Employer may remain responsible for medical expense reimbursements for a compensable work injury, until the parties enter into a compensation agreement or a WCJ issues a decision regarding ongoing responsibility.

The parties may enter into a Compromise & Release settlement agreement (LIBC-755) regarding indemnity wage loss benefits and not alter the rights and responsibilities of each party regarding medical expenses. In this instance, the "finality" desired in many settlement agreements, may not occur.

Moran v. WCAB (McCarthy Flowers), No. 830 C.D. 2013, a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on October 16, 2013, addressed this "post-settlement" medical expense issue.

Factual and Procedural Background
Employee injured his low back, described as an L4-5 disc herniation, in July 1997.
About 5 years later, the Employee and Employer entered into a Compromise & Release settlement for a lump sum of indemnity wage loss benefits. Responsibility of the Employer for reasonable and necessary medical expenses continued.

Employer filed a Utilization Review request (LIBC-601) in May 2010, to challenge the reasonableness and necessity of treatments rendered to Employee by Gail Kozlowski, LPN, including massage therapy.

The Employer's UR request was assigned to Rehabilitation Planning Inc, by the Bureau of Workers' Compensation. Heather Krull, LPN issued a UR determination in July 2010.

UR Determination was that massage therapy, (understood as NMT, friction and myofascial release/compression, application of a topical pain reliever "ChinaGel", was not reasonable,  as provided by Kozlowski, LPN.

Employee Petition to Review the UR Determination before the WCJ.

Employee submitted 2 reports from Kozlowski. She provided massage for low back pain, under the prescription, direction and recommendation of Dr. Michael D. Wolk.
She performed this therapeutic treatment :
  • within the scope of her practice; 
  • during her nursing training she learned basic massage strokes;
  • she furthered her education at Allied Medical and Technical Centers, receiving certification after completing 900+  hours of training;
  • she continued to become a teaching assistant in the AM&T program;
  • she received her National Certification after examination;
  • she is a member of the National Association of Nurse Massage Therapists;
  • she was accepted as a "provider" in an e-mail from Eileen K. Wunsch, Chief of Health Care Services Review of the Bureau of Workers' Compensation.
[ Query: did Wunsch have the statutory authority to provide any statement of who is/is not a "provider" pursuant to the Pennsylvania Workers' Compensation Act?
The term "provider" is defined at Section 109 and Regulation 127.3 as "a health care provider".]

WCJ Decision
WCJ found: Kozlowski meets the definition of a "health care provider";
She is licensed by PA as a Licensed Practical Nurse;
She provided treatment under the order of Dr. Wolk.

WCJ rejected Employer argument that this case was bound by the holding of the prior appellate court decision at Boleratz v. WCAB (Airgas, Inc.) 932 A.2d 1014 Pa. Cmwlth. 2007).
Boleratz denied reimbursement to a non-licensed healthcare provider for massage therapy.
HERE, Kozlowski is a licensed healthcare provider.

WCJ noted he addressed the "credentials" of Kozlowski to provide massage therapy treatments in 2 prior decisions.
WCJ noted  Employer evidence from Krull only addressed the "credentials" of Kozlowski to provide this treatment, this evidence did not address the "merits" of the massage therapy provided.

The RESULT. The Employee petition was granted to the extent that Employer only argued that Kozlowski could not even provide these massage services. On this basis, the Employee petition was granted, the UR Determination was "reversed" and Employer remained responsible for payment of this work-related treatment.

WCAB reversed the WCJ in Employer appeal.
Nothing in the evidentary record supports the assertion that massage therapy is within the scope of the practice of Kozlowski as an LPN.
Massage must be a medical service which the provider (Kozlowski) is licensed to provide pursuant to physician orders.
As Kozlowski has a certificate, but is not licensed by PA as a massage therapist, her services for massage therapy are not reimbursable under the Act. slip opinion page 6.

Commonwealth Court reversed and reinstated the WCJ decision to allow reimbursement.
1. In Utilization Review, Employer bears the burden of proving that the challenged treatment is not reasonable or necessary, throughout the proceedings.

2. There is a rebuttable presumption that treatment is reasonable and necessary.

3. Treatment may be considered reasonable and necessary, even if it is designed to manage symptoms rather than cure or permanently improve the underlying condition. See: Cruz v. WCAB (Philadelphia Club), 728 A.2d 413, (Pa. Cmwlth. 1999).

4. Boleratz decision is distinguishable from the instant case.
Boleratz received massage from Ms. Bell pursuant to a prescription written by Dr. Bernard Proy.
Bell was not licensed to perform massage and was not supervised by Dr. Proy
Employer refused to reimburse this treatment.
Court ruled, Bell was not a healthcare provider, even though she provided massage pursuant to a referral from a healthcare provider.
Employers must pay for medical services rendered by healthcare providers. A provider must be licensed or authorized to provide healthcare services, in order to be reimbursed.

5. HERE, Kozlowski is a Licensed Practical Nurse.
A Nurse is a healthcare provider under the Act.
Massage was prescribed by Dr. Wolk.
Kozlowski reports detailed her training in massage therapy as part of her LPN training.
She utilized massage in providing therapeutic care to patients.

The statute describing care authorized by LPN's states (in part) ...
the LPN functions as a member of the health-care team ... LPN administers medication and carries out therapeutic treatment ordered for the patient ... the LPN may accept a written order for medication and therapeutic treatment from a practitioner authorized by law and by facility policy to issue orders for medical and therapeutic measures.  See: Pa. Code 21.145(a)-(b)(1).

Employer failed to establish that massage therapy did not come under the duties of an LPN.
Employer evidence (the UR Determination) failed to address the merits of whether the treatment rendered by Kozlowski was reasonable and necessary.

Practice pointers:
1. This Employer suffers a poor result, primarily based upon the limits of the UR Determination. 
Employer does not "pick' the UR, you get an assignment Bureau. Employer was "stuck" with this evidence. 
Employer was not provided the remedy requested.

2. IMHO, if the UR does not address all of the PERTINENT issues, such as the basic issue of "Reasonableness and Necessity of treatments", the Employer should not be penalized. This case should be re-assigned by the Bureau so that the Employer get get what they ask for ... a report regarding the "reasonableness and Necessity' of treatment rendered!!!
Seems pretty basic.

3. This decision DOES NOT stand for the proposition that ALL massage by an LPN is automatically "reasonable and necessary" treatment.

4. This decision DOES NOT stand for the proposition that ALL massage is treatment authorized for any LPN. The decisive factor in this case, was the training of the person providing the massage. In the event your LPN does not have this specialized training .... then the treatment is not authorized. 

5. Get the credentials of the person providing any treatment. Get the Physician orders.

6. Get the medical records ... was this care reasonably and necessary?
Was there ANY treatment effect recorded?

Thursday, October 17, 2013

Employer's Job Offer leads to Suspension of Benefits

The Value of a Successful Well-Documented Job Offer.
An Employer may offer an employment position to an injured employee. The proffered position must be within the employee's physical and vocational capabilities. The legal standard for the Employer's proof was delineated in the often-cited Pennsylvania Supreme Court decision at Kachinski v. WCAB (Vepco Construction Co.), 532 A.2d 374 (Pa. 1987). 

More than 25 years later, we still face appellate challenges to the Employer's evidence from unsuccessful employees.

Markardt v. WCAB (Woodloch Pines Inc.) , No. 434 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Senior Judge Friedman on September 30, 2013 addressed this "job offer" issue.

Factual and Procedural Background
Employee injured her cervical and lumber spine (strain) in her duties as a housekeeper with
Employer in August 2007. A NTCP was issued, which converted to a NCP.

April 2008 IME with S. Ross Noble, M.D. supported Employer's Termination Petition.
November 2008 Employer modified duty job offer supported Employer's Suspension Petition.

WCJ Decision
Employer medical expert was credible, in part.
Employee's medical witness, Paul Vessa, M.D. was not persuasive.
The Termination petition was denied, BUT the Suspension petition was granted.

Employee WCAB Appeal
Remand, to determine whether Employer proved a "change" in employee's medical condition and made a referral to an available job... ie, did they meet the "Kachinski" burden of proof.

On Remand, the WCJ took additional testimony and found Employer met their burden of proof for a Suspension of benefits based upon the medical exam and job offer.

  • Employer medical expert was credible in his opinion that employee could return to work
  • Employer's Director of Housekeeping credibly testified regarding the job duties, 
  • -how they differed from the pre-injury position,
  • -she noted that assistance was available, 
  • -this utility person position was goal-oriented, rather than production-based, and 
  • -the position was offered to employee.
  • Employee testified she was capable performing almost any activity as long as she paced herself.
  • - she acknowledged she received the job offer letter.
  • - she acknowledged she did not attempt to perform this modified job.
  • Employee's failure to attempt the proffered job, was found by the WCJ to amount to bad faith.
Commonwealth Court Appeal
Employee argued 2 issues:
(I)   the WCJ did not issue a reasoned decision, as he failed to mention employee's medical witness and disregarded her medical evidence as to why she could not perform the specific job offered.

(II)  The WCJ erred in determining she acted in bad faith when she followed her doctor's advice and did not accept the position offered.

Court Reasoning in Affirmation of WCJ Decision
(I)   Section 422(a) of the Pennsylvania Workers' Compensation Act provides that: 

"All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decision so that all can determine why and how a particular result was reached. 

The WCJ shall specify the evidence upon which the WCJ relies and state the reasons for accepting it in conformity, with this section.When faced with conflicting evidence the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence". 
slip opinion at page 5.

The WCJ did address all of the evidence and credibility of witnesses in his initial decision.
The WCJ determined employee medical witness was not persuasive.
On remand, the WCJ only addressed the evidence relevant to the WCAB remand order.
The WCJ did not err in failing to address Dr. Vessa's opinion in the remand decision. This was not an issue in the remand order.

(II)   Pursuant to the Kachinski decision and Section 413 of the Act, 77 P.S. 772, an employer seeking to suspend (or modify) a claimant's benefits must meet the following requirements:

(1). the employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.

(2). The employer must then produce evidence of a referral to a then open job, which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.

(3).The claimant must then demonstrate that he has in good faith followed through on the job referral(s).

(4). If the referral fails to result in a job then claimant's benefits should continue.
See: Kachinski, 532 A.2d at 380.

HERE, Employer presented the medical testimony of Dr. Noble. He opined Employee had fully recovered from the work injury. He opined Employee could return to work without restrictions.
The WCJ found Dr. Nobel to be credible.

Employee admitted she was capable of performing almost any activity, as long as she paced herself.
On this basis, the WCJ did not err in finding Employer met criteria  #1.

Employer presented the testimony of the Director of Housekeeping. She described the modified duty job and her job offer to Employee.The WCJ found this testimony credible.
On this basis the WCJ did not err in finding Employer met criteria  #2.

The burden then shifted to Employee to demonstrate that she followed through on the job referral, in good faith. The WCJ found her failure to attempt to return-to-work OR contact Employer after the job offer amounted to bad faith.
On this basis the WCJ did not err in finding that Employee failer to met criteria  #3.

Practice Pointers:
1. A well documented job offer will allow the WCJ to grant a modification/suspension of wage loss benefits, if employee does not return to work.

In this instance the WCJ assigned greater credibility to Employer's medical evidence that she could return to work.

2. How might Employer avoid the outcome where the WCJ assigns greater weight to Employee's medical evidence?
During presentation of evidence, Employer may identify the reasons for physician disapproval and make an amended job offer!
Then the WCJ is presented with  2 return-to-work alternatives. 

3. Here, Employee alleged she did not return-to -work, based upon her physician recommendations. If the job offer is amended, as suggested at #2 above, are there others reasons for Employee's refusal to attempt to return-to-work? 

4. Have the Employer contact (or vocational counselor) attempt to identify any reasons for the non-compliance. 

5. During litigation, cross examine Employee at the initial hearing regarding her job offer response, to document the lack of "good faith" and to identify any areas for possible job amendment.

Thursday, October 10, 2013

Claimant's Termination Petition "Defense" = Change Injury Description!

Employer's Termination Evidence versus Employee's Description of Injury Review.
In a proceeding to establish that liability for a work injury has ceased and "terminated" an Employer has the burden to prove that the employee's disability has ceased OR that any current disability is the result of a cause unrelated to the work injury. In a Termination petition proceeding, the burden of proof never shifts to the employee to prove the existence of a causal relationship between the disability and the work injury.

In the last few years we have read an increasing number of decisions where an employee will contest a Petition for Termination of benefits with an argument that:
(1) the work injury was  not correctly described in the original compensation documents; OR
(2) the work injury (or diagnosis) has changed, such that the original description is no longer accurate;

This observation of an increase of the Petition for REVIEW of the description of injury in the context of a Termination Petition, does not seem to be related to an increase in "stand-alone" Petitions to Review of the description of injury [in my personal experience].

What is the Basis for the Review?
Was the injury not accurately described at the outset?
Has the injury changed, such that the description is no longer accurate.
Who must file the petition to Review/Correct the injury description?
When must the Review Petition be filed?

Harrison v. WCAB (Auto Truck Transport Corp.), No. 769 C.D. 2013, an opinion of a panel of the Commonwealth court of Pennsylvania, authored by Judge Leavitt on October 2, 2013 addressed these Termination Petition and Review Injury Description issues.

Factual and Procedural Background
Employee slipped and injured his right ankle in the course of his duties as a truck driver. (May 2008).
Employer issued a Notice of Compensation Payable LIBC-495 and commenced total disability benefits for a work injury described as a "right ankle sprain".

An Impairment Rating Evaluation (IRE) by Lucian Bednarz, M.D. assigned a 13% impairment rating according to the AMA Guidelines. (August 2010).
Employer filed a Petition for Modification of Employee's benefit status from "total" to "partial" disability.

Independent Medical Examination (IME) by Michael Raklewicz, M.D. determined that employee had fully recovered from the work-related ankle sprain. (October 2010). (29 months of disability for a sprain).
Employer filed a Petition for Termination.

Employee filed a Petition to Review Compensation Benefits, seeking to amend the injury description to include the additional right ankle and foot conditions described by Dr. Bednarz in his IRE report.

Employee also wanted to add the leg fracture and knee injury he suffered when he fell at home in July 2010, which he alleged as a result of instability from the injured ankle.

Employee Medical Expert
Barry Bernstein, DPM the treating podiatrist diagnosed a pre-existing flat foot deformity, a nerve entrapment at the ankle, and a fracture fragment in the rear of the ankle. He performed surgery on the foot and ankle. Employee reported increased pain. He opined it was possible the pain caused Employee to fall and break his leg. Dr. Bernstein opined Employee was not fully recovered. He could not return-to-work as a truck driver.

Employer Medical Expert
Dr. Bednarz considered 2 diagnoses of Employee at the August 2010 IRE:
(1) the ankle sprain and
(2) the pre-existing flat foot deformity
[why? this 2nd diagnosis was not on the NCP?]

The 13% Impairment rating did not include a rating for the ankle sprain as Employee had no residual problems from that condition.
The 13% Impairment rating was wholly attributable to the after-effects of the surgery for Employee's pre-existing congenital flat foot condition.
[why is this included in work-related impairment?]

Dr Raklewicz, a Board -Certified Orthopedic expert reviewed his October 2010 IME findings.
Medical records including MRI shortly after the work-injury showed a mild ankle sprain, which was the original treating MD diagnosis. Bone scan showed  pre-existing bilateral flat feet which he believed caused ankle degeneration. He opined the surgery by Dr. Bernstein was directed to the problems from the congenital flat foot condition, not from the work-related ankle sprain.

Dr Raklewicz opined Employee fully recovered from the work-related ankle sprain. The leg fracture and knee injury from the fall injury at home were related to the pre-existing congenital foot condition, not the work injury.

WCJ Decision:
Modification was granted. Termination was granted. Review was denied
The unrebutted opinions of Dr Bednarz were credited by the WCJ.
Modification from total disability to partial disability was granted as of the August 2010 IRE.

The testimony of Dr. Raklewicz that Employee had fully recovered from the work-related ankle sprain injury was credited. The other foot, ankle and leg problems were found to be related to Employee's congenital condition, not to the work injury. Termination was granted as of the October 2010 IME.

The WCJ denied the Employee Review petition, concluding he failed to meet his burden of proof that the additional conditions were related to the work injury.

Commonwealth Court Decision:
Employee Arguments:
1. Employee argued the IRE report of Dr. Bednarz established the compensable injury was more than an ankle sprain. As the IME report of Dr. Raklewicz only addressed the NCP description of an ankle sprain, his testimony was not legally competent to support an order of Termination.

2. Employee argued the WCJ erroneously placed the burden upon him to prove the additional medical conditions were work-related, when he should have placed the burden upon Employer to prove those conditions were not work-related.

Court Reasoning:
After review of the Employer burden of proof in a Termination petition, the Court noted that the NCP establishes the description of the work injury. Employer must establish a full recovery from the injury described therein. Citing: City of Philadelphia v. WCAB (Butler) 24 A.3d 1120 (Pa. Cmwlth. 2011).

Amendment of Injury Description
"Section 413(a) of the Act allows the WCJ to amend the NCP at any time during litigation of a petition, if the evidence shows the injury sustained in the original work incident is different or more expansive than that listed in the NCP". 
Slip opinion page 6 citing: Cinram Manufacturing, Inc. v. WCAB (Hill) 975 A.2d 577 (Pa. 2009).

This is known as a "corrective amendment", as it corrects a mistake at the time the original document was prepared.

An NCP may also be amended if Claimant files a Review Petition and proves another injury subsequently arose as a consequence of the original injury.The party seeking to amend the NCP has the burden of proving the NCP is materially incorrect.

Employee Burden of Proof Argument.
Employee argued the burden of proof was altered in this case. The IRE report established his post-surgical problems were work related  as Dr.Bednarz considered these conditions in his impairment rating. Accordingly employee did not need to prove that these conditions were work-related, but rather Employer had to prove he was recovered from these conditions, in order to obtain an order of Termination.   As discussed below, this argument was rejected.

IRE as an Amendment of Injury Description?
The IRE is to be based only upon consideration of the "compensable injury".
An IRE determines the claimant's level of disability.
An IRE is separate and distinct from an IME.
An IME  determines whether a claimant has recovered from the work injury.
Dr. Bednarz' consideration of all of Employee's ailments did not "implicitly amend" the work injury to include all of his post-surgical problems.The IRE statutory language at Section 306(a.2) does not provide for an IRE to act as an "automatic" amendment of the description of injury.

Injury Description Amendment
Section 413(a) permits the WCJ to amend the NCP during the litigation of any petition, based upon the evidence, even if a review petition is not filed.
The Court noted an amendment of the injury description could occur in the context of a IRE proceeding, BUT, the WCJ is not required to amend the NCP.
In this case, based upon the evidence, the WCJ did not amend the NCP.
This was not erroneous as a matter of law.

IRE evidence of Injury Description
Upon inspection of the testimony of Dr. Bednarz, he did not opine the work injury extended beyond the sprain description. Out of an abundance of caution he included all of Employee's ankle and foot conditions in his impairment rating calculations BUT he concluded the 13% impairment was based entirely on the pre-existing flat foot condition. Dr. Bednarz specifically assigned "0" percent impairment to the ankle sprain injury. This medical evidence did not support Employee's argument.

It was not erroneous as a matter of law for the WCJ to modify Employee's status referencing  the 13% impairment. The Court noted it would have been more precise for the WCJ to use a "0" % impairment figure for the modification, but that action did not "implicitly amend" the description of the work-related injury.

As noted above, the Court rejected Employee's argument that the WCJ acceptance of the IRE evidence altered the burden of proof among the parties.
Employee argued that the additional injuries to be added to the NCP were in the same body region as the accepted work injury.
Therefore Employer should have been required to show that employee had also recovered from those conditions, relying upon the PA Supreme Court decision at Gumro v. WCAB (Emerald Mines Corp.) 626 A.2d 94 (Pa. 1993). 

Gumro was understood to place the burden of proof in a Termination proceeding, upon the employer where the case involved additional physical injuries that were very similar or at least involved the same body part, as the accepted work injury.

HOWEVER, the 2009 decision in Cinram Manufacturing clarified Gumro.
It is legitimate to allocate the burden of proof to claimant, to prove injuries which are not accepted by the employer. In Cinram, it was a difference between an alleged disc herniation and an accepted lumbar sprain.

"Where the injuries are separate, 'the burden rests with claimants to establish the existence of additional compensable injuries giving rise to corrective amendments, regardless of the procedural context in which the amendments are asserted.' Cinram at 533, 975 A.2d at 582" slip opinion page 10.

This means the burden of proving additional injuries is upon claimant.
HERE, Employee understood that, which is why he filed a Review petition!
Employee did not prevail before the WCJ in the Review petition to amend the injury description.
The Termination petition was properly granted as the Employer medical evidence found a full recovery from the accepted work-related injury and this evidence was found to be credible by the WCJ


1. In a Termination case, provide the IME medical expert with the Bureau documents describing the work injury. 

2. If there are medical conditions which are related, identify those additional conditions for the Medical Expert. 

3. At this point, consider voluntary Amendment of the description of injury to avoid any future controversy regarding the exact description of the accepted work injury.

4. If the work relationship of a medical condition is contested, issue an explanation of benefits letter when that medical billing statement is denied for lack of a causal relationship. 
Communicate this denial to claimant and to the Medical provider.

Friday, October 4, 2013

Claimant Attorney Fee Deductions... Who, What, When, Where, Why?

Employee Attorney Fee Deductions.
When an attorney is successful in representation of an injured Employee, the attorney may request the WCJ  approve an attorney fee deduction. See: Section 442, 77 P.S. 998. The statute specifically requires approval of any attorney fee deduction. The attorney fee deduction request shall be approved, provided the attorney fee does not exceed 20% of the amount awarded.

Where there is an unreasonable contest of a petition, the WCJ may award attorney fees, to be paid by Employer, in addition to the wage loss benefits and medical expense reimbursements awarded.
This attorney fee is not deducted from Employee's compensation award. This attorney fee award is authorized by a separate section of the Pennsylvania Workers' Compensation Act, Section 440, 77 P.S. 996.

When Employee is receiving work comp benefits and Employer files a petition, Employee Counsel will typically request the approval of an attorney fee deduction, at the time the WCJ rules upon the Employer supersedeas request, customarily after an initial hearing.

What if the WCJ does not rule on the Employee Attorney fee deduction request?
What if the WCJ does not rule on the Employer supersedeas request?

Mason v. WCAB (Upper Providence Township), No. 575 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on September 25, 2013, addressed these practical issues.

Factual and Procedural Background
Employee was injured in a work-related motor vehicle accident in the course of his employment as a police officer. Work Comp benefits were initiated via Notice of Temporary Compensation Payable LIBC-501. This document "converted" to a Notice of Compensation Payable, by operation of law, after 90 days. See: Section 406.1(d)(6), 77 P.S. 717.1(d)(6).

Medical Examination resulted in an opinion that Employee had recovered such that he was capable of returning to work as a police officer. Employer offered Employee the opportunity to return to his prior position. Employee did not return to work.

Employer filed a petition for Suspension as of the October 9, 2008 job offer. Employer requested a supersedeas (immediate suspension) of wage loss benefits during the litigation of the Suspension petition.
[Employer subsequently amended this petition to include an averment of Termination of all disability].

First Hearing Supersedeas Issues
At the initial WCJ  hearing of January 5, 2009, the WCJ considered the supersedeas request. Employee counsel was directed to submit a fee agreement by mail, which he did. The WCJ never issued an interlocutory order, to rule on the supersedeas request. He did not issue an interlocutory order to approve an immediate attorney fee deduction.

Note: When a WCJ does not rule on an Employer supersedeas request, within 14 days of the hearing, it is deemed denied from the date of filing of the request. See: Rule 131.43(a) of the Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges.

So Employee continues to receive 100% of his ongoing wage loss benefits during this litigation, as there was no supersedeas and there was no attorney fee approval.

WCJ Final Decision:
Employer Termination and Suspension Petition requests were denied in decision dated January 20, 2010.

WCJ approved an attorney fee deduction commencing retroactive to January 5, 2009, "the date of the supersedeas denial ". [?]

Employer WCAB Appeal
Employer did not appeal the WCJ denial of the Termination and Suspension requests.

Employer appealed the attorney fee "retro-activity" to January 5, 2009, as Employee had been paid 100% of wage loss benefits due, based upon the lack of an interlocutory supersedeas order or an interlocutory attorney fee deduction approval.

WCAB amended the WCJ order, to commence the approved attorney fee deduction as of the date of the WCJ decision.

Employee Attorney Appealed this Ruling!!!

Commonwealth Court Affirmed the WCAB decision.
The WCAB correctly reasoned that the WCJ did not "approve" the attorney fee deduction, until the date of his decision. Employee counsel did not submit an attorney fee agreement at the initial hearing.
Employee counsel did not request an attorney fee approval at the initial hearing or at any time thereafter.

Employee counsel was not entitled to an attorney fee deduction until the approval of a fee in the final decision.
Employer argued the WCJ order was "illegal on its face" as there is no authority to provide a retroactive award of attorney fees on compensation which has already been paid to a claimant".

Commonwealth Court relied upon its prior decision at City of Philadelphia v. WCAB (Ford-Tilghman) 996 A.2d 569 (Pa. Cmwlth. 2010) for the reasoning as to when a claimant attorney is entitled to a 20% attorney fee deduction, even in the situation where the employee receives 100% salary continuation under the Heart and Lung Act.

The Court explained, once the Termination petition is denied by the WCJ and the 20% attorney fee deduction is approved, 20% of claimant's indemnity benefits were no longer payable to claimant.
 At that point [the time of the decision] 20% was payable to counsel.
Slip opinion page 6, citing Ford-Tilghman 996 A.2d at 574.

Practice Pointers:
1. It is an uncommon circumstance were claimant counsel demands a retroactive payment of attorney fees, where claimant has received 100% of their wage loss benefits. This decision provides a common-sense resolution of the problem.

2. Employer and Insurer properly paid this case. 
IF employer paid a 20% attorney fee deduction WITHOUT WCJ approval, Claimant could make a request for payment of that 20% ... and probably prevail! 

3. Employer legal counsel should advise their clients WHEN there is an attorney fee deduction and the proper AMOUNT to be deducted, in their hearing report letter or upon receipt of an interlocutory supersedeas order.

Tuesday, October 1, 2013

How to Challenge Medical Expenses ... without Penalties

Medical Expenses may be challenged for lack of a causal relationship to the work injury.
Where an Employee is successful in establishing all of the essential elements of a compensable work injury, the Employer must compensate the wage loss and medical expense of the injured employee.

An Employer may accept liability for a work injury by filing a Notice of Compensation Payable (NCP) (LIBC-495) or an Agreement for Compensation (LIBC-336).
Employer may accept liability only for medical expense via the preparation of the "Medical Only" section of the NCP or via preparation of a Notice of Workers' Compensation Denial (NCD), (LIBC-496).

If the Employee desires wage loss payments, after receipt of a NCD or "Medical Only NCP, the Employee must file a Claim petition.
In this context, there may still be a disagreement as to the extent of medical expenses payable for the work injury. This may be true when the employee has a "pre-existing" medical condition.

Mohawk Industries, Inc. v. WCAB (Weyant), No. 197 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Cohn-Jubelirer on September 18, 2013, addressed these medical expense issues.

Factual and Procedural Background

Employee fell to the ground from his forklift, when he suffered a diabetic seizure.
Employer filed a NCD, which acknowledged the work fall, but agreed "to pay medical treatment for upper back and neck pain as a result of the fall only."

Employee filed a Claim petition alleging injury to his "upper back and neck, resulting in radiculopathy into both upper extremities".
Employee filed a Penalty petition alleging employer violated the act by failing to timely pay for treatment of the work injury.

Employee Medical expert Arnold G. Salotto, M.D. testified that pre-existing spinal stenosis, degenerative disc disease and bone spurs were aggravated as a result of the work fall and employee developed a disc herniation.

Employer Medical expert Lucian Bednarz, M.D. testified (in part) employee had neck pain as a result of the fall.

WCJ Decision
Employee's work-related fall necessitated the anterior cervical discectomy with fusion and plating by Dr. Salotto.
Employer medical witness acknowledged employee suffered neck pain as a result of the fall. Despite this testimony, Employer did not make timely payment of the surgical bills (within 30 days of submission, Regulation 127.208). A 20% penalty was assessed on the surgical bill for violation of Section 306(f.1).

Additionally, the WCJ noted some medical bills were paid by Blue Cross/Blue Shield.
WCJ ordered Employer to reimburse medical expenses paid by BC/BS. (reimburse to whom?)

Employer Appeal
1. Penalty Petition award was error as Employer never accepted liability for neck injury (NCD issued).
2. Reimbursement of medical expenses paid by BC/BS was error, as they did not file a subrogation lien.

WCAB Decision
1. Where an injury is recognized (NCD) and medical treatment reveals an additional diagnosis to the same body part, Employer bears the responsibility to prove the new diagnosis is not work-related. See: Body Shop v. WCAB (Schanz), 720 A.2d 795 (Pa. Cmwlth. 1998).

1.1 When an Employer refuses to pay medical expenses for the "new" diagnosis, the Employer accepts the risk that the WCJ may determine the treatment is work-related and assess penalties. Citing: Listino v. WCAB (INA Life Insurance Co.) 659 A.2d 45 (Pa. Cmwlth. 1995).

2. WCAB rejected employer argument regarding lack of medical insurer subrogation lien.
WCJ properly directed reimbursement of medical expenses to Claimant, even if expenses had been paid by a 3rd party. Citing: Frymiare v. WCAB (D. Pileggi & Sons) 524 A.2d 1016 (Pa. Cmwlth. 1987).

Commonwealth Court Decision
1. Medical Bill Penalty
Employer issued a NCD, "accepting" liability for the neck and back injury as a result of the work-related fall.
Employer argued it did not accept responsibility for all medical expenses.
Employer contested the work-relationship of the need for surgery, in light of the pre-existing medical conditions.
However, the WCJ found the surgery was necessitated by the work-related fall.
Once employer accepted liability for the fall injury, it had a duty to pay medical bills until there was a determination that their liability no longer exists. Slip opinion at page 6, citing Listino.

If employer disputed the causal relationship between the work injury and the medical treatment, employer could file a Review Medical Treatment petition.
[Query: would this help? The WCJ cannot grant a supersedeas as to medical expenses].
[What about filing a UR Request? Question necessity!]

Note: An employer will typically challenge the causal relationship by denying the medical expense with an Explanation of Benefits letter.
An employer will challenge the reasonableness or necessity of medical care via a Utilization Review request.

The Court held, where an employer unilaterally ceases payment of medical expenses, based solely on causation, they assume the risk of penalties if the WCJ rules the expenses are related to the work injury.
Citing: Roadway Express v. WCAB (Iwasko) 723 A.2d 1076 (Pa. Cmwlth. 1999).

2. Subrogation Lien
Employer argued it was an error to direct reimbursement to employee or BC/BS, for medical expenses already paid by BC/BS.
BC/BS did not file a subrogation lien.
Any payment to employee would be a windfall.

Court agreed, WCJ decision was ambiguous as to who should receive reimbursement.
Employer is correct, BC/BS could not receive reimbursement as it did not file a subrogation lien.
Referencing: Independence Blue Cross v. WCAB (Frankford Hospital) 820 A.2d 868 (Pa. Cmwlth. 2003).
To the extent the WCJ and WCAB directed reimbursement to BC/BS, they are in error.

The WCAB interpreted the WCJ order to direct reimbursement to employee.
However, employee never sought reimbursement for medical bills paid by his health insurer.

Court held, it is erroneous to grant employee more relief than requested.
It is prejudicial to employer, as they were not placed on notice that this relief was sought nor did employer have an opportunity to defend against this request.
Employee submitted only his unpaid medical bills for payment.
Employee submitted the paid surgical bill for assessment of a penalty.
Employer was not placed on notice that there was a request for reimbursement of the surgical bill, to employee or to BC/BS.

Commonwealth Court reversed the WCAB order for employer reimbursement of the surgical bill.

Practice Pointers
1. Determine if a medical bill will be contested on the basis of "causal relationship" or "reasonableness and necessity". The available remedies differ.

2. Recognize that a medical bill can be "denied" for lack of a causal relationship, however, an unsuccessful denial MAY result in the assessment of penalties.

3. Recall that the assessment of penalties by the WCJ is discretionary.  The WCJ may decline to assess a penalty where there is a legitimate reasonable contest. 

4. To attempt to avoid the assessment of penalties: (i) Describe the "accepted" work injury with a precise diagnosis; (ii) secure a prompt medical review and opinion regarding the extent of work related medical care. This medical evidence could be pursued via IME or URO. 

Thursday, September 26, 2013

How to Win a "Parking Lot" Premises Case

The Extent of the Employer's Business Premises.
In a Claim Petition the Employee bears the burden of establishing all of the necessary elements to support an award of compensation benefits. An injury is compensable only if it is sustained in the course of employment and is causally related thereto. Section 301(c)(1), 77 P.S. 411(1).

A compensable injury may occur when the employee is injured performing duties, in the furtherance of the Employer's business. A compensable injury may occur, as a result of the condition of the work premises.

Generally, injuries which occur while commuting to or from a place of work are not considered to "occur" in the course of one's employment. [ The general rule differs for traveling employees].

A Question may arise, as to When has an Employee "arrived" at the Work Premises?

What is the extent of the Employer's business premises?

Exide Technologies v. WCAB (Acosta), No.469 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on September 18, 2013, addressed the issues regarding the extent of an employer's work premises.

Factual and Procedural Background
Employee was struck by a vehicle while crossing Montrose Avenue, a public street, on his walk from a parking lot to his work place. Employee claimed disability as a result of skull fractures. The Employer argued the employee was not on the Employer's premises, at the time of the accident.

Employee Witness Testimony
2 Co-workers testified about the parking at Employer's business.
The Employer owns 2 parking lots; Lot A and Lot B.
Montrose Avenue runs between the 2 lots.
Lot B is contiguous to the plant.
Parking is also available on the street.

Employee parked at Lot A, as it is closer to the time clock area where he punches in.
Lot B is closer to the area where he picks up his uniform.
Employee must stop at both places before he starts his shift.

WCJ Decision
The Montrose Avenue, a public street, is not integral to the Employer's business premises, as Employee was not required to park at Lot A.

Employee could park in Lot B or on the side of Montrose Avenue, contiguous with the Exide building.
If employee selected one of these two options, he would not need to cross Montrose Avenue to get to work.
[Only the Lot A option necessitated crossing the public street].

WCJ denied the Claim Petition. Employee appealed.
WCAB reversed and awarded benefits. Employer appealed.

Commonwealth Court Decision
Reinstated the WCJ decision, to deny this claim.

Employee is entitled to compensation benefits if he is injured on the employer's premises, at a reasonable time before or after the work shift.

Employee must prove he was:
(a) on the premises occupied or under the control of the employer;
(b) is required to be present there, by the nature of his employment;
(c) sustains an injury, caused by the condition of the premises or caused by operation of the employer's business thereon. See: Newhouse v. WCAB (Harris Cleaning Service), 530 A.2d 545, (Pa. Cmwlth. 1987) and WCAB (Slaugenhaupt) v. United States Steel Corp., 376 A.2d 271 (Pa. Cmwlth. 1977).

HERE, the Employee was crossing a public street, not a land parcel owned and/or controlled by the employer.
End of Analysis?No.

Prior Appellate Decisions have held that an Employer's business premises, is not necessarily limited to buildings or properties controlled, occupied or owned by the employer.

"Premises" may encompass property that could be considered "an integral part of the employer's business". See: Ortt v. WCAB (PPL Services Corp.), 874 A.2d 1264 (Pa. Cmwlth. 2005).

"The critical factor is not the employer's title or control over the area, but rather the fact that...[the employer] had caused the area to be used by ... employees in the performance of their assigned tasks.

See: slip opinion page 4, citing: Waronsky v. WCAB (Mellon Bank) 958 A.2d 1118, 1125 (Pa. Cmwlth. 2008), citing Epler v. North American Rockwell Corporation, 393 A.2d 1163, 1167 (Pa. 1978).

In Waronsky benefits were denied 
In Epler benefits were awarded.
What is the difference between work comp liability and no liability?

Legal Distinction
In Waronsky the employee was struck by a vehicle while crossing a public street between her employer's office and her employer's parking garage. Her employer did not require employees to park in that garage. [Employer did provide tax incentives for parking there].

In Epler, the employer required employees to park in assigned lots and prohibited on-the-street parking. This control was sufficient to find that the street separating the building and parking lot was integral to the employer's business, as it was the only means of ingree and egress.

HERE, employee was not required  to park in Lot A. Traversing the public street was not part of the employers business premises. When employee was on that public street, he was like any other member of the general public.

1. The outcome in a "Premises" case, is dependant upon the individual facts presented.

Although there are "general rules",  there are several exceptions.
Investigate the facts! Take witness statements, as to exactly where the accident occurred.
Review with the employer, their past practices, rules and requirements.

2.Research the case law, as win/loss is often dependant upon a few distinguishing facts, just like the results in  Epler and Waronsky. 

3. Be Proactive. Advise your employers that they may unknowingly expand their work comp liability, when they impose "rules" regarding mundane issues like employee parking.