Tuesday, February 26, 2013

Termination Remedy - expanded RSD injury

Termination remedy where a prior termination was denied can be limited.
There is an increased burden of proof upon Employer.
The additional requirement is to demonstrate "a change in the physical condition of claimant since the time of the last disability determination".

Johnson v. WCAB (Bucks County Intermediate Unit) at No. 1232 C.D. 2012 an unreported panel decision of the Commonwealth Court of Pennsylvania authored by Judge Leadbetter on February 26, 2013.

Factual and Procedural Background

February 2002 injury of: low back strain; right knee strain and right lower leg RSD.

April 2004 injury expanded to include: RSD of right side and right shoulder; 
                                                              a pain disorder associated with psychological factors and
                                                              a chronic medical condition.

November 2006 WCJ decision: deny Termination Petition requested as of 11/23/05 exam
                                                   ***injury further expanded: RSD left side of body.

February 2008 Employer Petitions: 1. Modification, full recovery of RSD,
                                                             Neurologist, Dr. McCarren 2/18/08
                                                         2. Modification , full recovery from mental component of injury,
                                                             Psychiatrist Dr Michals 1/25/08
                                                         3. Termination, full recovery
                                                             Orthopedist Dr. Nolan 7/31/08

WCJ Granted Termination and Modification Petitions.

The Pa Supreme Court decision in Lewis v. WCAB (Giles & Ransome Inc) (Pa. 2007) held that a termination request, based upon a theory that the worker's disability has ceased due to an improvement of physical ability must be based upon medical evidence of a change in the worker's physical condition.
In the case of successive termination petitions, there must be a demonstration of a change in physical condition since the last disability determination.
Generally, if there are additional recognized injuries, the employer must prove the worker also recovered from them. (Mino, Pa. Cmwlth. 2010).

In Johnson, there was the additional issue that Dr. McCarren modified his opinion regarding Employee's work capacity after review of surveillance evidence and the Psychiatrist report.
Employee argued this was an equivocal opinion and not evidence of a full recovery, as it was not based upon a change of her condition.

Dr. McCarren examined Employee and found no residual signs of RSD but he recommended sedentary work. After viewing the film of Employee he changed his opinion to a full recovery.
This is not improper!
A doctor's opinion is not considered equivocal when during the course of forming his opinion, he revises his original view of claimant's capabilities and condition after viewing surveillance video. See: Fye v. WCAB (Super Moche) (Pa. Cmwlth. 2000).
His opinion regarding full recovery was based upon his physical exam with lack of residual findings and the video which showed she used her extremities without any limitation.

Regarding Dr. Michal, the Psychiatric expert, on cross exam he admitted to the possibility that her pre-existing non-work related psychological problems could be a factor as to why she was not working.
This expression goes to the weight of his opinion of a full recovery, it does not diminish the competency  his opinion.

Note: other evidence mentioned included Employee's 2003 wedding photo on a glacier and 2004 video of her teaching a "spin class".

Practice Pointer:

1. A Second Termination attempt must recognize the full extent of the work injury and any prior determinations that the injury has "expanded". Here the Employer developed a comprehensive approach, addressing the physical, neurological and psychological components of injury.

2. Employer also pursued surveillance evidence to rebut Employee's appearance at the hearings.
She alleged difficulty with simple tasks such as opening a water bottle.
Video demonstrated use of both hands, walking her dog, carrying coffee, reaching, etc.
At times, it is appropriate to establish a strategy to document the "fullest extent" of the workers professed limitations, IF you plan to rebut those statements via surveillance evidence.

Monday, February 25, 2013

Injury - Does not make medical sense - Denied

In injury claims investigation, there are instances where the statement or omission of facts, causes one to question the mechanism of injury... "how did it happen?"
In Pennsylvania the Employer must accept or deny a claim within 21 days. This time deadline compresses the time frame for thoughtful analysis and reflection.
One option is to issue a Notice of Temporary Compensation Payable [LIBC 501] and continue the investigation. Often a claim will be denied where questions remain regarding the mechanism of injury.

Johnson v. WCAB (Home Depot), No. 738 C.D. 2012 is an unpublished panel decision of the Commonwealth Court of Pennsylvania authored by Judge McCullough on February 21, 2013.

Factual & Procedural Background

Employee filed a claim petition alleging a left rotator cuff tear in the course of his duties as a Lot Tech and Loader. On December 24, 2009, He testified he was in the Employer's parking lot, helping a co-worker load cabinets into a truck. While walking back to the store, he reached out and pulled two lumber carts. He said he heard a "snap" and felt pain in his left shoulder, but he finished the work day and did not report this injury to his Employer.
Four (4) days later December 28, on his next scheduled work shift, he noticed increased shoulder pain and called off work. He did not tell Employer that his condition may be work related.
Employee treated with his family doctor (not an employer designated medical provider?).
Employee delivered a work excuse to Employer on December 30, 2009, this was the first time he notified employer that his injury was work related.

Employee evidence included the testimony of his co-worker that he heard a snap, he turned around and saw Employee holding his left shoulder. Employee appeared in pain and said the snap noise was his shoulder.

Employee presented the medical testimony of orthopedist Joseph Guagliardo M.D. He began treatment in February 2010 and diagnosed a torn left rotator cuff with internal derangement of the shoulder.
Another surgeon performed a rotator cuff repair and acromioplasty.
Guagliardo opined this condition was totally disabling and related to the work incident described by Employee on December 24. He described a rotator cuff tear is initially painful and becomes increasingly painful with motion or pressure, such as sleeping on it.

Employer Medical Expert, David L. Rubenstein M.D. specializes in rotator cuff surgery. He examined Employee and the medical records including the pre-op MRI. That scan showed a large subacromial bone spur and AC arthritis, which would predispose Employee to rotator cuff problems.
Importantly, Rubenstien reviewed the medical records which indicated Employee did not experience pain or symptoms until December 28. Rubenstein opined Employee did not tear his rotator cuff on the 24th as he should have experienced immediate intense pain in the first 24 hours and he would
have immediatedly stopped working or would at least reported it.
He disagreed with Employee medical expert that a pop or snap, tears the rotator cuff such that pain and symptoms are experienced over time. This was "against conventional orthopedic wisdom and did not make sense".

WCJ rejected the credibility of Employee and his co-worker.
He assigned greater credibility to Employer medical expert.
He did not rely upon Employee medical expert, as that witness relied upon employee's "tainted information". This medical expert relied upon Employee's version of events, which were deemed not credible.
On Appeal Employee argued:
the findings were not supported by substantial evidence;
the decision was not reasoned;
the WCJ capriciously disregarded competent evidence.

Commonwealth Court stated the well established rules of law:

The WCJ is free to accept any witness, in whole or in part.

The WCJ may reject uncontradicted testimony.

The "reasoned decision" requirement was met as the witnesses appeared before the WCJ and it is appropriate to base the credibility determination upon the witness demeanor or "some special circumstance".

The WCJ did not capriciously disregard evidence as the WCJ summarized the testimony of each witness and explained his reasons for the credibility determinations.

Practice Pointers:

1. The credibility determinations of the WCJ are paramount to obtaining a successful litigation result.

    This case reflects as well-reasoned defense strategy. There were no rebuttal witnesses to 
    Employee's version. Attack the underlying premise of his version of events.

2. Medical Expert selection is another crucial element in a defense. IMO the selection of a "shoulder
    expert" may have carried some weight in the credibility analysis.

Friday, February 22, 2013

Automobile Modifications as Medical Care -No

In a work injury, the Employer is responsible for payment of "reasonable and necessary" medical care, which is causally related to the work injury.

Section 306 (f.1) of the Pennsylvania Workers Compensation Act requires the an employer to:
"provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in accordance with this section".

Past appellate case decisions have expanded the definition of "orthopedic appliance" to include devices such as wheelchairs, stair glides, and in more limited circumstances, home modifications and vehicle modifications.

These past decisions do not require a payment for vehicle modification for every injured worker.
The Supreme Court has stated it will review these requests on a case-by-case basis and require payment "in proper circumstances".

Rundle v. WCAB (Lawn Tech Inc.), No. 1227 C.D. 2012, is an unreported panel decision of the Pennsylvania Commonwealth Court authored by Judge Leavitt on February 13, 2013 which addresses these issues.

Factual & Background History

in May 2003, Employee injured her right arm while shoveling stones in the course of her work duties as a landscape laborer. She was paid disability benefits.
In January 2009 she settled her indemnity wage loss benefits for a lump sum via a Compromise & Release settlement. Pursuant to that Agreement, the Employer remained responsible for "all causally related medical expenses".
In February 2010 Employee filed a Petition for Penalties for Employer's failure to provide her with safe transportation. At the hearing, she explained that her right arm injury, with residual pain and numbness, made it difficult for her to operate her personal vehicle, with a standard transmission. Her doctor stated it would be preferable for her to use an automatic transmission, as this would prevent much of her symptoms.
Employer did not contest these fact but argued it had no legal obligation to purchase a new vehicle.
When the WCJ questioned the new vehicle request, Claimant Counsel "left open" the issue of whether a new or used vehicle  would be satisfactory.
She was willing to have the value of her vehicle applied to the new purchase.
Employer argued a vehicle is not an orthopedic appliance, so it had no obligation to purchase one.

The WCJ denied the Penalty Petition. Employee was found credible that she used her mother's automatic transmission vehicle for longer trips and uses her vehicle for shorter trips. Shifting causes inflammation and pain in her neck, shoulder and back. Employee medical was found credible that an automatic transmission would be useful to her. But he concluded Employer was not responsible for a new or used vehicle.
WCJ referenced the recent Pa Supreme Court decision in Griffiths v. WCAB (Seven Stars Farm Inc) (2008). (MDS filed an amicus curae brief to Pa.Supreme Court on behalf of the Pa Defense Institute.)

The general rule from Griffiths is that a vehicle may qualify as an "orthopedic appliance" pursuant to Section 306. Griffiths was a C-5 Quadriplegic. He used a van to transport himself to medical appointments, in addition to other activities. That Employer accepted liability for the van conversion costs but not the purchase price of the van. The Supreme Court considered the van as an orthopedic appliance, providing mobility, similar to a wheelchair.

... back to Rundle with her uncomfortable arm... the Court held the "particular circumstances" of Griffiths were not present.

Practice Pointers:
1. The "generosity" of the workers' compensation system can only be stretched so far...
     IMO it is appropriate to decline the Rundle request and grant the Griffiths request.
    One of the underlying themes of Griffiths was the extent of the Employer responsibility.
    Was a new van due, one "fully loaded" or base model?
    Was the sticker price to be paid or 80% of usual and customary price?

2. The Pa Supreme Court did not establish a "bright line" rule, rather they emphasized that these cases
     must be assessed and decided on a case-by-case basis.

Query: ... change the facts, what if an automatic transmission was requested by an injured employee,
                in a work vehicle so the employee could continue to work...
                a relative no-brainer.

Tuesday, February 19, 2013

Positive Drug Test = Dismissal = Suspension

Many Employers have a work rule which requires a drug test upon the report of a work injury.
A positive result will result in termination of employment. When a disabiling work injury is alleged, the drug test results will impact the Employee's right to seek wage loss benefits.

Brewer v. WCAB (E2 Payroll & Staffing Solutions) No. 337 C.D. 2012, an unpublished panel decision of the Commonwealth Court of Pennsylvania authored by Judge Leavitt on February 13, 2013 addressed these issues.

Factual & Procedural History

May 1, 2009 Employee reported injury when co-worker driving forklift pushed a pallet into employee
                     pinning his back against a conveyor belt.
May 7, 2009 Claim Petition Filed! (less than one week)

Employer file Notice of Denial (box4) - Injury occured "lumber sprain" but no disablility.

Employee was examined at Employer's facility, Careplex.
Drug test ordered.
Restricted from working for 10 days, no lifting over 5 lbs.

To Pottstown Mem. Hospital ER from Careplex.
Given pain meds and told to ice back. (work restriction?)

Subsequent treat with Chiro Cavoto.
Diagnosed cervical disc bulges; lumbar disc herniations.

Employee testified he received Employer substance abuse policy. He took drug test at Careplex.
He received a letter from Employer notifying him he was discharged from employment for failing drug test. He stated he "wouldn't dispute that [the drug test] was positive".
He admitted to using cocaine and marijuana a few days prior to the work incident.

Employer Branch manager and Employee supervisor testified she drove employee to Careplex and Pottstown ER. He asked if he would be fired as he believed his drug test would be positive.
She testified as to employer zero-tolerance drug policy and employee receipt of policy handbook.

Careplex send Supervisor notice of positive drug test.
Supervisor sent Employee letter notifying him of discharge because of positive test.
Letter did not include a copy of the test results.

Supervisor testified that Employer has work available to employees with work restrictions.
If Employee had not been terminated for drug policy violation, there would have been a work position available to him within his restrictions. She did not identify any specific jobs suitable for Employee's physical restrictions.

Employer medical witness examined employee 5 months post-injury. He diagnosed a lumber disc herniation. He approved sedentary work restrictions as of the IME date. He also stated Employee would be limited in his ability to work by his medication use for the first month.

WCJ Decision

WCJ "granted" claim but found no compensible injury as employee was discharged for cause.
Work Comp benfits were "suspended" as of date of discharge. (medical benefits payable).

WCAB & Commonwealth Court Affirm

4 Employee Arguments:

#1. Employer failed to issue an LIBC 751, Notice of Ability to Return to Work.

Not required. The LIBC form is required by Section 306(b)(3) where Employer seeks a modification of benefits based upon medical evidence.

#2.  Post-injury discharge was not dispositive of loss of earnings.

Injury occurrence was not disputed. Employee argued for wage loss benefits as accident disabled him and Employer did not prove he was capable of working.

Court said loss of earnings was due to discharge for cause.
"Disablity" means a loss of earnings.
Here "disablity" was due to discharge, not due to physical injury.

#3. No substantial evidence to support finding Employee failed drug test.

Employee's own testimony and Supervisor testimony corroborated the test result.

#4. No substantial evidence He could return to sedenary work as of date of injury to support a

Employer medical witness said employee use of meds would impact ability to work for first month. Supervisor testified work was available but did not identify any jobs.
Employee failed to preserve issue regarding date of suspension. Issue was waived.

Practice Pointers

A. Drug Test Results. Submit "best evidence" which is the drug test result. Also submit employee
     policy handbook with any documents signed by employee at time of hire.

B. Work Availability. Document work availability with decriptions of job duties available but for
    termination. Document available work positions just as you would document any other job offer.
    If position would be specially created, document it and describe.
    Give a written job description(s) to Employer medical witness.

    HERE employee medication use was a concern for IME doctor... identify duties that would not raise
    these concerns... inventory, paper work, office work... anything away from warehouse, forklifts and
    lifting duties.

C. Medical Release to Work. Attempt to get a medical release as of the date of the injury.
    Would Careplex MD give release? (restricted work for 10 days)
    Would Pottstown ER doc give release? ( no mention re work)
    Try all of your options.

[These alternatives may not have been available to this employer, we can not determine from this apellate decision]

Friday, February 15, 2013

Employee Rebuttal Evidence to Vocational Expert Report

Since 1996 the Pa Workers' Compensation Act has provided Employers with a remedy for Modification of Employee total disability benefits based upon Vocational expert evidence.

A vocational expert earning power assessment of the Employee post-injury earning capacity could be sufficient to support an order of modification. In lieu of the actual "job offer" letter required by the Pa. Supreme court Kachinski 4-prong standard, a vocational expert could perform a labor market survey to formulate an opinion of the employee post-injury earning capacity.
A job would need to be "available" in the employee geographic area and suitable educationally, vocationally and medically. TheWCJ would assess the credibility of evidence.

Employee rebuttal evidence in a Kachinski job offer case included testimony that he/she applied for the available position and was not hired, therefore it could not be a basis for modification of benefits.

In the earning power assessment remedy, employees' have produced similar "application" evidence but post-hoc application to jobs in an earning power assessment report, would not defeat a modification based upon this "available" employment. See: Phoenixville Hospital, Pa. Cmwlth. 2010.

Employee rebuttal evidence has included vocational expert testimony as to the shortcomings of the Employer vocational evidence.

Annville Township v. WCAB (Hutchinson) addresses these issues in an unreported panel decision of the Pa. Commonwealth Court, authored by Judge McCullough,
at No. 716 C.D. 2012 on February 7, 2013

Factual & Procedural Background

June 29, 2006 leg leg injury
December 24, 2008 date work was alleged available
January 22, 2009 Employer Petition for Modification
February 23, 2010 WCJ decision
 Employer appeal denial of modification
WCAB remand to clarify inconsistent findings re voc witness credibility
February 7, 2011 WCJ decision  deny modification
WCAB affirm denial
Commonwealth Court appeal by Employer

Employer Vocational and Medical Evidence
Employer medical evidence included IME report of Dr. Cooper with sedentary work restrictions based upon residual permanent limited range of motion, swelling, with chronic pain.
Left leg injury limited standing, walking and driving. Squat, kneel, crawl was prohibited.

Dr. Goodspeed testified regarding Employee history of a complex closed tibial plateau fracture with reconstructive surgeries. He could not provide work capabilities without a functional capacity test.

Employer vocational expert Mary Hess interviewed Employee and relied upon the physical capacity recommendations of Dr. Cooper. She identified 8 employment positions she believed to be within Employee's vocational and physical capabilities. She completed 4 job analysis forms which were reviewed and approved by Drs. Cooper and Goodspeed (although Goodspeed did not recall).

Employee evidence
Employee testified regarding his left leg injury with 12 surgeries.
He consumed pain medications. His sleep was compromised.
He was not a high school grad.
He applied for 7 of 8 jobs in the labor market survey and was not offered work. The 8th online application for a security guard job closed when he indicated walk/standing limitations.

Employee did not present a medical expert.

Employee vocational expert was Maria Babinetz. She did not conduct her own labor market survey. (one of my pet peeves). She testified regarding employee's medications and lack of sleep would impact his ability to work on a sustained basis.
She visited Wal-Mart and stated no stool was provided. The greeter would need to mop and lift items on occasion. She stated these duties would place this job beyond his medical restrictions.
She visited KMart and stated the cashiers were required to stand which conflicted with his medical restrictions.
Also she believed his medication side effects would prevent him from performing these jobs.
He was not vocationally qualified for 2 customer service positions.
Apparently Employer conceded Employee was not qualified for 2 security positions.

[ Remember the medical witnesses approved these job descriptions, as written, without this additional

WCJ 1st decision found Hess was credible that Employee could perform the jobs.
WCJ found Employee credible he could not perform the jobs because of meds and sleep
WCJ found Babinetz credible Employee could not perform jobs.
WCJ acknowledged MD's approved the jobs BUT Employee evidence was sufficient to establish he lacks an earning capacity based upon his physical restrictions, education and voc experience.
WCAB remand to eliminate inconsistency regarding credibility determinations.
WCJ 2nd decision found Employee and Babinetz credible he was unable to perform the jobs, on a physical and vocational basis.
WCAB affirm denial of modification.

Commonwealth Court

Employer argued:

(1) that Employee failed to rebut the testimony of Hess that he could perform the job duties.
(2) WCJ erred in rely upon Employee self-serving testimony that he could not work,
(3) Babinetz testimony was an unqualified medical opinion.

(1) Court held World Kitchen decision was not controlling. When an employer meets its burden of proof for modification via medical evidence, the worker's subjective belief about her work capabilities were insufficient to rebut employer evidence.

(2) Employee challenged the vocational appropriateness of jobs, NOT the medical restrictions/releases. In challenging the jobs, employee relied upon voc expert Babinetz, in addition to his testimony.

(3) Babinetz do not offer a medical opinion. She testified the job duties were not accurately described in the job analysis reviewed by the MD's. Employee did not have the educational or vocational skills needed for the jobs. Based upon her personal observations she stated the Wal-Mart and KMart job duties were not within the medical restrictions. This was the type of information that voc experts normally review and rely upon.

Practice Pointers:

A. Vocational Evidence. This case illustrates the difficulty with finding a "perfect match" between the medical and vocational evidence. Often a job description is prepared based upon one employer
contact and the opposing expert may have a different source of information.
Small details may not be disclosed or addressed to the voc expert. These small details may defeat the well planned litigation. This type of employee rebuttal was the hallmark of the Kachinski job placement era. Many believed we would not return to this level of rebuttal in the labor market  
survey evidence. We need to utilize the past lessons in vocational expert testimony regarding the
amount of detail necessary to establish a convincing case.
B. Typically my recommendation is to rely upon a limited number of positions within the labor market survey and plan a more thorough review of 4 or so positions. Here, it appeared Employer had a similar strategy. This decision illustrates the difficulty of prevailing in litigation, when the
employee is found "credible" even when one believes there is a well planned case for

C. One Kachinski strategy was to depose the actual employer rep regarding the work requirements... not that I am advocating a return to the Kachinski era of vocational evidence.
IMO the labor market survey is to establish that employment is available in one's area and within the
physical and vocational capabilities, as estqblished by voc expert testimony.             
 IMO the claimant "application" is not envisioned, authorized by the statue or relevant.

Wednesday, February 13, 2013

Late Answer - Unreasonable Contest- Employer Rebuttal Evidence

An Answer to a Claim Petition must be filed within 20 days of the date of assignment to the Workers' Compensation Judge.  The effect of failure to file a timely answer is to admit all well-pled factual allegations. [ See: Guard Insurance Group, 864 A.2d 1285 (Pa. Cmwlth. 2005)].

The failure to file a timely answer may also prompt:
1.   a Petition for Penalties (for violation of Section 416 requiring a timely answer) AND
2.    a Request for the Imposition of Attorney Fees, paid by the Employer/Insurer for an Unreasonable
       Contest of the Claim Petition.

Boyer v. WCAB (Johnstone Supply) an unreported panel decision of the Pa. Commonwealth Court, authored by Judge Simpson at No. 1258 C.D. 2012 on February 7, 2013, addressed these issues.

Procedural & Factual Background

October 28, 2009 Employee Motor Vehicle Accident while traveling as Outside Sales Rep.
October 28, 2009 AM hours, Employer allege Employee was removed from Outside sale rep position.
November 19, 2009 Employee return-to-work with another Employer, with no loss of earnings.
November 25, 2009 Claim Petition and Penalty Petitions filed.
December 30, 2009 Employer Answers filed, beyond 20 day time period.

WCJ admitted all factual allegations in petition. Both parties presented evidence on the issue of whether employee was within course of employment at time of MVA. Employer evidence was that employee was removed from outside sales position and offered an inside position, which she did not immediately accept.

WCJ Decision:
WCJ rejected this evidence as it conflicted with the admitted facts. WCJ rejected suggestion that Employee was fired and not employed at time of MVA.
WCJ grant Claim and Penalty. Total disability awarded through return to work date.
Penalties of 50% awarded.
Attorney fees of $5,000 awarded ( $7,759.50 requested for 32.1 hours [$241.73/hour?]).

WCAB Cross Appeals:
Employee wants full attorney fee including supplemental request up to $12,249.50.
 [ 47.0 hours = $260.63/hour]
Employer challenged all aspects of WCJ decision.

WCAB Decision:
Reversed award of attorney fees, there was a reasonable basis to contest claim, reasoning, an admission of facts does not equate to a default judgment to Employee.
 Employer may present evidence to contest issues of law.

Commonwealth Court Decision:

Employee appealed reversal of attorney fee award and amount previously awarded.

Attorney fees are required, ( Section 440) unless the Employer establishes a reasonable basis for the contest of the claim petition. Reasonableness of the contest is a question of law.
A contest is reasonable if there is a genuinely disputed issue.

HERE, the analysis is "complicated" by the "Late Answer".
All of the facts pled by Employee are admitted.
Employee pled that she was an employee, working as an outside sales rep at the time of the accident.
Court notes, Employee has burden to prove injury arose in course of employment... which is a question of law... which is reviewable and not waived by failure to file a timely answer (slip opinion p. 8).

The Employee's well pled facts sufficiently establish she was acting in the course of her employment.
These facts supported the conclusion of law that she was an employee in the course of her employment at the time of injury.

Employer offered evidence ("facts") contrary to Employee's allegations. They alleged she was removed from outside sales position before the accident.
BUT because of the late answer, the Employer was not allowed to challenge Employee's well-pled  "facts".
"Under the facts admitted, there is no genuinely disputed issue regarding the course of employment".
(slip opinion p.9)
Therefore the WCAB erred in reversal of the atttorney fee award.
Case was remanded for WCJ re-consideration of an appropriate amount of attorney fee.

My Thoughts:
The status of an individual as an "employee" is a legal conclusion.
The status of an individual as acting "within the course of employment" is a legal conclusion.
IMO the Employer is allowed to submit evidence on whether or not the employee meets the burden of proof of these legal issues. You may lose these issues but you should be able to contest there legal issues.
That is exactly what the employer did in the Bensing case cited by Court!
Bensing appealed a denial of a claim petition, where there was a late answer by employer. The WCJ found the employer's evidence was credible regarding claimant's activities on the day of injury.
Claim was denied.
OK. So here the Employer submits evidence and the WCJ does not assign it credibility. So Employer loses... but why is there an unreasonable contest? The WCJ could have adopted Employer's evidence and found claimant was not with in the course of employment and denied the claim, just like in Bensing.
IMO you may lose the case on those credibility issues andbut you may avoid attorney fees, as the contest was reasonable, as it was brought to resolve a genuinely disputed legal issue.
I would have litigated this one, especially because of the amount of the attorney fee request.

Thursday, February 7, 2013

Attorney Peer Review Ratings

Time for a little self-promotion...

For many years Martindale-Hubbell compiled peer review ratings of attorneys by their area of specialty. These ratings are complied from confidential responses. These responses are solicited from fellow attorneys and judges, who are familiar with the attorney under review.

In the past, one was rated AV, BV or no rating.
The current nomenclature is based upon a numerical rating ( 1.0 to 5.0) of specific categories:
 Legal knowledge; Analytical Capabilities; Judgment; Communication Abilities and Legal Experience.

AV Preeminent is from 4.5 to 5.0
BV distinguished is from 3.0 to 4.4
Rated is from 1.0 to 2.9

I received my first "AV" rating in workers compensation law in 2003.
Presently I am rated 5.0/5.0 and remain AV Preeminent.

As this rating is based entirely upon the confidential responses of one's peers, I believe it is a noteworthy honor.

Wednesday, February 6, 2013

Termination of Disability - Proof - Description of Injury, & Closure of the Record

A recurring issue for Employers and Insurers is the limitation upon a remedy for successful termination of disbility benefits arising from the "changing injury description".

In a Termination Petition, the Employer/Insurer burden of proof is to establish that disability from the work injury has ceased.

Where the Employee continues to complain of pain, the Employer may meet this Termination burden of proof, via a credible and unequivocal medical opinion (within a reasonable degree of medical certainity) that the Employee has "fully recovered", can return to work "without restrictions" and there are "no objective medical findings" that can sustantiate the pain complaints OR connect them to the work injury.  see: Udvari v. WCAB (US Air, Inc.) (Pa. 1997).

Edward J. Siegfried and Erie Insurance Co. v. WCAB (Zerbe) decided by Judge McGinley of the Commonwealth Court at No. 1815 C.D. 2012 on February 1, 2013 in an Unreported Opinion.

A Termination Petition was defeated when the Workers Compensation Judge assigned greater credibility to the medical opinions expressed by the Employee medical witnesses, Dr. Zeliger (back symptoms) and Dr. Ackerman (shoulder symptoms). Also, Employee was found credible.

TWO ISSUES were discussed on appeal.

#1. Employer argued the WCJ erred in denial of the Termination petition, as Employee medical expert Dr. Zeliger testified that Employee was not fully recovered as he had a "borderline herniated disc, protruded disc, at L5-S1 on the left". The NCP described the work injury as "lumbar sprain/strain and right shoulder contusion". The WCJ erred in assessing the medical opinions based upon an implicit, not express amendment of the injury to include a disc herniation.

Commonwealth Court reasoned the WCJ implicitly amended the description of injury based upon the determination that Dr. Zeliger was credible.

#2. After the close of the evidentary record and before a decision was published, Employer Counsel requested to re-open the record and schedule a status conference to discuss "new evidence", an office progress note from Employee's treating orthopedic surgeon, Dr. Ackerman, to the effect that Employee had reached "MMI" and was released to full duty work with respect to the shoulder.

Employee Counsel also requested the record be re-opened.
The WCJ did not respond to these requests. The Termination Petition decision was issued.

Employer counsel argued the WCJ erred in not reopening the record to consider the note from the treating orthopedic surgeon that Employee had fully recovered from the shoulder injury.
[Note: a "full recovery" is not synonymous with a return to "full duty".  The appellate decision is not clear on this point.]
Citing the Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges, 34 Pa. Code 131.101(c) the Commonwealth Court noted the WCJ may close the record after submission of all evidence or upon a party's motion or motion of the judge. They emphasized there is no specific rule or decision that the WCJ must reopen the record to accept after acquired evidence.
The general rule (not mentioned in this opinion) is that the WCJ has discretion to reopen the record and that decision will not be reversed, absent an abuse of discretion. See: Sharkey v. WCAB (Tempo, Inc.) Pa. Cmwlth. 1999.

My Concerns:

1. Why deny the JOINT request of Employer and Employee Counsel to re-open the record and review
    medical evidence which was not previously available. I do not understand this. I recognize there
    needs to be an end point and a time when the case goes to decision, BUT here there was fairly
    important medical evidence, that reflected a significant chance in claimant's medical evidence of
    ongoing disability.
    As this was truly after discovered evidence, let it in.

2. The "implicit" amendment of the description of injury, without a Employee petition for Review,
    does not provide Employer with any notice that the WCJ will "grant" this relief to Employee, such
    that Employer's medical evidence is now devalued and this evidence no longer addresses the
    critical issues of termination/continuance of the work related disability.
    Employee must be required to challenge the description of injury and place the Employer on notice,
    consistent with the appellate decisions at Cinram Mfg. Inc v. WCAB (Hill); Commercial Credit v.
    WCAB (Lancaster) and Jeanes Hospital v, WCAB (Haas).

Practice Pointers

A. I guess you should ask Employee Counsel "on the record" if they are going to review the description
     of injury. OK, I do not typically do this... may be we should... when it appears it may be an issue.

B. I do not have any "great" recommendations for getting the WCJ to re-open the record, particularly
     where opposing counsel agrees with your request. Maybe strenuously argue the after-discovered
     nature (maybe they did that here, it's hard to tell from this appellate report).

This is an unreported decision of the Commonwealth Court. Since 2008 one may cite and argued for its persuasive value, not as a binding legal precedent.

Friday, February 1, 2013

Post Settlement Review- Not Allowed!

As an increasing number of PA work comp cases are concluded via Compromise and Release Stipulation settlements, the finality of these settlement agreements is of paramount importance to the Insurers, the Employers and their attorneys.

An Employee may not petition to Review the description of injury after a Compromise and Release Stipulation, even where the agreement allows for the payment of future work related medical expenses.
Importantly, the Employer/Insurer documented their negotiations with Employee as to the specific injuries "accepted" as work-related for purposes of this settlement.

DePue v. WCAB (N. Paone Construction, Inc.) decided by the Commonwealth Court of Pennsylvania on January 30, 2013, at No. 1113 C.D. 2012, opinion authored by Judge Leadbetter.

Procedural Background
1996 Head injury
1996 NCP issued by Employer
March 2008 Compromise and Release settlement decision
July 2010 Employee Penalty petition for non-payment medical bills
September 2010 Employee Petition Review description of Injury
WCJ deny Penalty and Review Petitions
WCAB affirm denials
Commonwealth Court affirm denials

Factual Background

In 2008 the parties entered into settlement discussions and exchanged correspondence and draft settlement documents (LIBC 755 and addendum pages).
Employee proposed addendum described the work injury as "closed head injury, seizure disorder, left shoulder fracture, chronic pain, loss of short-term memory and bi-polar disorder.
Employer returned this document, "crossing out" the shoulder, chronic pain and bi-polar descriptions.
Employer note stated "we already negotiated the accepted injuries in 2007 and those are the only injuries I will outline on the agreement".

The C&R documents were prepared to describe:
"any and all injuries suffered at (employer) including but not limited to the accepted injuries of severe closed head injury with seizure disorder and short term memory loss".
Another settlement term was that Employer agreed to pay " all reasonable and related medical bills".

The settlement documents with the above injury description were executed and presented as exhibits at the March 2008 WCJ hearing. The Commonwealth Court decision reviewed these documents and Employee's March 2008 testimony.

Employee testimony reflected that:
there had been discussion of settlement for months;
he read and signed the agreement;
he understood medical expenses that were reasonable and necessary and causally related to his injury would continued to be paid;
he had enough time to review the agreement;
the terms were explained to his satisfaction;
he was not promised anything that was not in the agreement;
he understood that once approved he cannot go back and ask anyone for additional payments of wage loss benefits.

The "C&R" WCJ found as fact and concluded that Employee understood the full legal significance of the agreement "as regards [his] work related injury and right to workers' compensation benefits".
She concluded that the parties entered into "a valid and binding agreement".

Commonwealth Court decision

As noted above, I believe a significant factor in this positive litigation outcome was that the Employer Counsel documented the pre-settlement discussions with Employee counsel regarding the description of injuries that were considered "the work related injury".  This is particularly important where you are agreeing to pay for future medical expenses. The documentation of these communications were submitted as exhibits in support of Employer's arguments in the litigation of the 2010 Review and Penalty Petitions.

 Employee argument that the C&R Agreement should be "corrected" to add the shoulder injury as this was "erroneously" omitted from the final drafts was rejected.  This was not consistent with the evidence,  the pre-C&R hearing correspondence among the attorneys regarding the injury description.
After negotiations with Employer, Employee agreed to omit the shoulder injury description and signed those documents.
An approved C&R agreement may be set aside only upon a clear showing of fraud, deception, duress, mutual mistake or unilateral mistake caused by an opposing party's fault.
[ citing, Farner, Barszczewski, Dillard].
Once approved, a valid C&R agreement is final conclusive and binding upon the parties.

Employee asserted the Employer "routinely" paid medical bills for the shoulder and knew that the bills were causally related.
Employee argued legal principals of:  Promissory estoppel; equitable estoppel and res judicata.
[ these arguments recur in work comp, so I will reference this discussion]

Promissory Estoppel may be invoked to enforce a promise made by a party to an opposing party when there is no enforceable agreement between the parties.
Equitable Estoppel may be invoked to enforce a promise where there is the party's inducement of the other party to believe certain facts to exist and the other party's reliance on that belief to act.

"Nothing in the record suggests that Employer promised to continue to pay medical bills for the left shoulder injury and that Claimant relied upon such promise to enter into the C&R agreement".
 slip opinion p. 10.
Commonwealth Court repeated the general rule that an employer's voluntary payment of medical bills does not constitute an admission of liability for the left shoulder injury and cannot be construed as a promise to continue to make such payments. slip opinion p. 10-11.

Practice Pointers

1. Confirm all settlement terms in writing ASAP after the mediation or verbal settlement

2. Where there is a term that was discussed and not included, I like to add language, something to
    the effect, " during litigation of the claim petition claimant alleged his neck was
   also  injured at the time of his low back injury, but employer has disputed any relationship and
   has not accepted liability for that medical condition or related treatment, as a term of this

3. I no long try to "do things last minute".  Reschedule the hearing. Take the time to review and
    consider the language you use in the settlement documents.
   [Here I like the fact that Defendant Counsel documented his discussions with Claimant 
   Counsel, IMO this was significant in obtaining a successful result]