Friday, March 29, 2013

Pa Work Comp Insurance rate decrease announced

On March 28, 2013 Pa Insurance Commissioner Mike Consedine announced a workers' compensation insurance rate reduction that would go into effect on April 1, 2013.

 The overall decrease is 4.01%.

"We are very pleased with the rate reduction which is the second workers' compensation decrease in a row" said Consedine.

Labor & Industry Secretary Julia Hearthway stated " Pennsylvania employers are able to benefit from the outstanding job they are doing to provide safer workplaces".

Employers are advised to contact their insurance agent prior to their next renewal date to determine the impact of the rate cut on their premium.

If work comp insurance costs are declining, I believe it is the result of several factors, one of which is workplace safety. I believe we cannot ignore the difficult economic times many face. In this environment I believe workers do not want to risk their employment and this may lead to less days off for injury recovery.

IMO, another factor is the "control" of the first 90 days of medical treatment by employers who establish a list of designated health care providers, ie, the Panel Physician List.

When discussing this issue with employers and insurers, several other factors are mentioned as a "piece of the puzzle" for the overall decline of work comp cases and their associated costs.
Some attorneys mention the increased claims investigation methods and information available before a claim is accepted.

Not having a work injury is the ultimate cost saving factor!

Thursday, March 28, 2013

P.S. - Suspension for Retirement/Withdraw Workforce is still a viable Remedy!

On March 25, 2013, the Pa. Supreme Court ruled on the legal issue of an Employer's remedy to suspend indemnity wage loss benefits where the injured employee has "withdrawn" from the workforce via retirement. See: City of Pittsburgh v. WCAB (Robinson) (Pa. 2013).

This decision did not eliminate this remedy, rather this decision refined the Employer's burden of proof for successful Modification/Suspension. Yes, the Employer's burden of proof is somewhat more demanding, than many believed. There is no "presumption" that an Employee has withdrawn from the workforce, merely by receiving a pension benefit. The Employer must assemble evidence of the "totality of circumstances" which demonstrate that the employee is no longer seeking employment.

Importantly, there is no requirement that employee make an unequivocal statement regarding his/her intentions of future employment. Such a statement will be difficult to come by, especially from a worker represented by knowledgeable legal counsel.

Another significant point, is that after Employer presents sufficient evidence to establish that the worker may have voluntarily retired from the workforce,  the burden of proof shifts to the worker to establish that he/she was forced into retirement because of the work injury.

The WCJ must consider evidence beyond the worker's simple receipt of a pension to determine whether a worker has in fact retired from the entire workforce.

The Pa. Supreme Court decision discusses the objective facts which Employer may be present to establish a withdrawal  from the workforce. In many cases we have pursued a Suspension remedy based upon the presentation of those objective facts, beyond mere receipt of a pension, to document a "retirement".

Our Recommendations:

Presentation of all available evidence is always the "best practice".
We have developed a strategy to present evidence from multiple sources:

Employee's statements to supervisors and co-workers;
Employee's medical records;
Pension documents;
Past employee return to work efforts;
Documentation of any employment applications/interviews;
Past Employer modified duty offers & Employee's response;
Employee "self-identification" in financial documents ...

This is a small sampling of the investigation and litigation efforts we have pursued to establish an Employer's remedy for Suspension of indemnity wage loss benefits.
We will continue to pursue this remedy.

The "Retirement" Suspension remedy lives on...

Wednesday, March 27, 2013

Pa Supreme Court - "Totality of Circumstances" determines Suspension for Withdraw from Workforce

An Employer may petition for Suspension and/or Modification of Workers' compensation indemnity wage loss benefits if the worker has voluntarily withdrawn from the workforce. The Commonwealth Court devised a "totality of circumstances" test for Employer's burden of proof.
The Pa Supreme Court affirmed that decision.

City of Pittsburgh v. WCAB (Robinson), No. 18 WAP 2011, a decision of the Supreme Court of Pennsylvania authored by Mr. Chief Justice Castille on March 25, 2013.

Factual and Procedural Background

Employee was a police officer. She sustained a work injury in 1997. She began working in a light duty office position. In 2001 she was injured in a motor vehicle accident on her way to treatment for the work injury. These new injuries were accepted via a Notice of Temporary Compensation Payable.
She did not return to work in the light duty position, nor was she offered any other position.

In 2004 Employee sought and received a disability pension from Employer. Three physician examinations certified she was unable to return to work as a police officer.

In 2007 Employer medical exam concluded she could not return as a police officer BUT she could perform modified work, as specified in the report. Employer sent LIBC 757 form, "Notice of Ability to Return to Work".
Employer filed Petition for Suspension averring Employee was capable of work but Employee "has voluntarily removed herself from the work force as she "has not looked for or sought employment in the general labor market".
Employee responded she remained attached to the workforce, she is registered with the Pa Job Center and the reason she is not presently working is that employer did not make modified duty work available to her.

WCJ Decision

WCJ denied suspension and concluded Employee had not voluntarily removed herself from the workforce. The WCJ noted Employer did not make suitable work available and Insurer testimony was that the former modified duty program was abolished in 2003. There was no vocational expert testimony. Consistent with SEPTA v. WCAB (Henderson) (Pa. 1995) the WCJ concluded Employee was forced into disability retirement as a result of her injury, when her modified duty was eliminated.


Commonwealth Court decision was an en banc plurality decision.
[City of Pgh v. WCAB (Robinson) 4 A.3d 1130 (2010)]

Supreme Court Reviewed the Legal Arguments:

1. To obtain a suspension Employer must meet the 4-part Kachinski Standard:
     i.   produce medical evidence of a change in condition
     ii.  produce a referral to an open job within medical clearance
     iii. claimant must demonstrate good faith follow through
     iv. if referral does not result in job, benefits continue.

2. Pursuant to Section 306(b)(2) an Employer may modify and/or suspend based upon vocational
    expert testimony of a claimant's post-injury earning power via a labor market survey.

3. Employer does not need to establish availability of suitable work where a claimant has
    voluntarily removed herself from the labor market through retirement. Henderson.  
    If a claimant has retired the burden shifts to claimant to show an attachment to the workforce
   (seeking employment) OR she was forced out of the entire workforce by her work-related injury.

4. Employer may not assume that Employee has retired merely because she accepted a disability
    pension. There are several types of pensions (disability or retirement) and several types of
    disability pensions. HERE the disability pension only required a showing employee could not return
    to perform her time-of-injury job. The acceptance of this pension, by itself, does not indicate
    employee voluntarily left the entire workforce.

5. The "Totality of Circumstances" Standard
    HERE employee accepted a disability pension conditioned on her inability to perform her time-of-injury job. She did not accept an "old age" pension or a disability pension that precluded a return to any type of work. WCJ found employee was not working because her modified duty position was eliminated. She was not offered a position within her capabilities, consistent with the 2007 medical exam. In the absence of a retirement and in the absence of a job offer, a suspension was not appropriate.

There is no "presumption" that acceptance of a pension is the equivalent of "retirement" or separation from employment. [rejecting Employer's argument for a presumption based upon Hensal, Henderson & Republic Steel].

Employer's burden of proof is greater than a mere showing receipt of a pension. Employee receipt of a disability pension (emphasis in court opinion page 19) does not necessarily establish she decided to forgo all employment, at the most it established she could not do her time-of-injury job.

Receipt of a pension has some evidentary weight. it may be probative of a worker's a desire to leave the workforce. But alone, that fact is not equivocal or conclusive evidence, sufficient enough to discharge Employer's burden of proof.

Henderson did not establish a rebuttable presumption that a worker has retired if they accept any pension. "Henderson teaches, when the employer presents sufficient evidence to establish that the claimant may have retired from the workplace, it is the claimant who must show that he or she is seeking employment following retirement from his or her employer, or that he or she was forced into retirement because of the work injury". (slip opinion page 26).

The employer, the moving party seeking to suspend benefits, bears the ultimate burden of proving that the claimant has voluntarily removed himself or herself from the workforce. The factfinder must evaluate all relevant and credible evidence before concluding employer has met its burden of proof.

Monday, March 25, 2013

Settlement + Future medical = Litigation

Many Pa Work Comp cases are settled via Compromise & Release for "indemnity" wage loss only, with the wc insurer remaining responsible for "reasonable and necessary" medical expenses, which are causally related to the work injury. This is an effective strategy to end the weekly payments and limit the future wage loss liability. Often the thought is that future medical expense liability may be addressed at a future date.

However, one must be careful to draft the C&R settlement agreements to precisely describe the wc insurer liability for future medical expense reimbursements. One recurring issue is the extent of this medical expense responsibility, "What is the accepted work injury?". For example, this problem may arise where the NCP describes a "lumbar sprain and strain" and claimant has received 2 surgical procedures for disc herniation.
[ see: February 1, 2013 post re: DePue and review of injury description in C&R docs]

Again, what is the accepted injury for future medical expense purposes?

What is the limit upon Claimant remedy for Review of the Description of Injury?

Schmitt v. WCAB (Dick Corporation & CNA Insurance Co.), No. 580 C.D. 2012, an unreported  memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on March 21, 2013 addressed these issues.

Factual & Procedural Background

1991 Injury, ironworker fell and sustained several injuries.
NCP described: "Fractures of left elbow, right wrist & right leg".
1994 Commutation Settlement via Supplemental Agreement (a predecessor to C&R settlement procedure) lump sum payment with future responsibility "for the payment of all future reasonable and necessary medical expenses causally related to the work injury...".

2007 Employee Petition for Review Medical Treatment and Petition to Review Compensation Benefits, for Employer refusal of medical expenses. Employee sought amendment of description of 1991 injury to include right knee injury.
[Employee also sought amendment to include left knee, left elbow, low back and psychological injury. Left knee and psych were withdrawn. Did not litigate low back. Employer agreed to left elbow.]

Employer paid all medical until 1995 denial of right knee surgery and left elbow surgery. Health insurer paid, Employee did not pursue. There was a 1996 right knee "re-injury" with another employer.

Employee Medical Evidence
Dr. Burke could not state unequivocally, that current right knee pain was solely due to 1991, in light of history of several injuries.
Dr. Klatt did total knee replacement surgery revision. He could not state right knee condition was due to 1991 injury.

WCJ Award
Employee established right knee condition was due to 1991 injury. (with that medical evidence!?)
Dr. Burke stated employee first complained of knee symptoms in 1991.

WCJ "interpreted "right leg" injury to include a "knee" injury. So.... although a review of the NCP would not be allowed more than 3 years after the most recent payment, that Section 413(a) limitation did not apply because the "knee" was already included in the "leg" description of injury.

WCAB Reversed
Employee Review petition was barred by the statute of limitations in Section 413 (a).
The NCP and Settlement Supplemental Agreement described a fracture of the right leg, not a right knee fracture. Actually it was a small fracture to the right ankle, not the knee!
The final Commutation settlement payment was in 1994, so the 2007 Review Petition to amend the description of injury was more than 3 years after the last wc payment.
The Review Petition was barred by the Statute of Limitations.

Commonwealth Court Decision

WCAB was correct, in reversal of the award and Review Petition.
Employer is liable for all work related medical expenses which are reasonable and necessary treatment. See: Section 306(f.1)(1)(i); 77 P.S. 531(1)(i).

However, here the work injury description did not mention any knee injury.
Even if we assume that "leg" injury includes any "knee" injury, the NCP and Supplemental Agreement describe fractures, not the type of joint injury employee suffered in his right knee.

Section 413(a) allows for the modification of the NCP, if it is proven incorrect, in any material aspect.
No NCP or Agreement shall be reviewed of modified unless the petition is file within 3 years of the most recent payment. Citing Fitzgibbons v. WCAB (City of Philadelphia) (Pa. Cmwlth. 2010).

As Employee's right knee injury was not encompassed within the accepted work injury, the only way to require the Employer to pay for treatments to the right knee would be to expand or modify the NCP. Modification of the accepted injury, more than 3 years after the most recent payment is barred.
[slip opinion page 8].

Practice Pointers:

1. Description of the accepted work injury is one of the most significant decisions in the claims handling process. If in doubt regarding the correct, most accurate description, one should review the medical records and seek advice.

2. When the initial description of the injury becomes inaccurate, via further medical testing or subsequent surgical care, consider voluntary amendment of the NCP description. This may avoid litigation and
"control" the extent of description, compared to placing this decision in the hands of a WCJ.

3. At the time of settlement, take care to correctly describe the extent of injury accepted. If a condition was asserted by the worker and not agreed upon by the insurer, document that status! This becomes a significant issue, where there is a promise to compensation future medical expenses.

Thursday, March 21, 2013

Another Multiple Issue Work Comp Case - Termination Result

Another multiple issue work comp case.
As I mentioned a few days ago, many work comp cases involve several factual and legal issues, both during the litigation and upon appellate review.
Here is another case which reflects a successful litigation strategy by the Employer and Insurer from the time of the claim petition to the termination of liability.

Rivers v. WCAB (Saunders House), No. 893 C.D. 2012, an unpublished memorandum opinion of a panel of the Commonwealth Court, authored by Judge Leavitt on March 15, 2013, addressed several issues.


1. Concurrent employment earning calculation
2. Unreasonable contest, Attorney fee request
3. Penalty Failure to Accept/Deny within 21 days
4. Reasoned decision - remand
5. Claimant credibility- inconsistencies
6. Termination (full recovery) during claim petition appeal

Factual & Procedural Background
Employee was a part-time dietary server at Saunders House, a nursing home.
After 3 weeks of employment, she slipped on a wet floor and nearly fell (but did not fall).
2006 Injuries from the slip & "near fall" were diagnosed as:

i. Bilateral C5-6 radiculopathy,
ii. post traumatic cephalgia,
iii. cervical & lumber spine sprain/strain,
iv. aggravation of C5-6 degenerative disc syndrome,
v. lumbosacral spine radiculitis,
vi. chronic myofascial pain syndrome

[ again... fortunately she did not actually fall...]

1st WCJ Harris decision:
a. Found claimant and her physician credible.
b. Granted claim for total disability.
c. Granted concurrent employment wage calculation of $395.58.
d. Granted 20% penalty for failure to deny.
e. Granted attorney fees for unreasonable  contest.

WCAB remand:
1. WCJ failed to resolve inconsistencies in claimant testimony regarding concurrent employment;
2. WCJ failed to issue a reasoned decision regarding how she assessed penalty and attorney fee.

Employer Subsequent Petitions:
* Employer filed a termination petition for full recovery in March 2008 based upon Dr. Brody IME.
*Employer filed a suspension petition based upon offer of pre-injury job in April 2008.

2nd WCJ Guyton (Harris retired)
a. Credibility, did not reassess, not a remand issue
b. Granted claim thru date of IME
b.1 granted Termination based on Employer medical evidence.
c. Reversed concurrent employment finding. Employee not credible. She did not prove she worked 2nd
    full-time job at time of injury, wage records did not added up!
d. Reduced 20% penalty to 10% as 1st WCJ failed to consider after untimely denial, the Employer
    medical evidence provided a reasonable basis.
e. Denied attorney fees as Employer medical evidence provided a reasonable contest.

WCAB & Commonwealth Court Affirm WCJ Guyton

a.  Credibility Issues
     2nd WCJ specifically noted she would not re-visit the original credibility determinations of 1st
     WCJ, as that was beyond the scope of WCAB remand.

b. Award of Benefits
    2nd WCJ awarded temporary total disability based upon her assessment of medical evidence.
     Employer Medical Expert did not challenge the original description of injury found by 1st WCJ.

b.1 Termination order
      Termination was appropriate based upon Employer medical evidence, which was found
      credible by the 2nd WCJ as to Employee's condition in March of 2008.
      Employer did not attempt to "go back in time" and re-litigate Employee status at the time of the
      original work injury in 2006.

      Employer was not required to show a "change in condition" to establish a right to a termination
      order. (as required in a subsequent termination filing).

      Employer met it's burden of proof to establish "that the claimant's disability has ceased or that any
      current disability arises from a cause unrelated to the claimant's work injury".
      see: Miller v. WCAB (PeopleLease Corp. et. al.) (Pa. Cmwlth. 2011).

     Here, Employer did not file termination/suspension petitions to litigate an issue raised on appeal.
     Employer petitions did not challenge the occurrence of the work injury, they challenged the
     continuation of any work disability. This is permitted, even in light of Sharkey v. WCAB
    (Tempo, Inc) (Pa. Cmwlth. 1999) which prohibits litigation of an identical issue already raised in
     an appeal of a claim.

c. Concurrent Employment
    It was Employee burden of proof to establish concurrent employment wages, at the time of injury.
    Concurrent Employment must be "on-going" at the time of injury. see: Ostrawski v. WCAB (UPMC
    Braddock Hospital (Pa. Cmwlth. 2009).
    Claimant tax records did not support her claim of full-time 2nd job.
    They proved she worked only part of the year, they did not prove concurrent.
    WCJ could properly find her testimony not credible.

d. Reduction of 20% Penalty to 10%.
    1st WCJ only considered untimely denial, she did not consider Employer contest became reasonable
    with receipt of Employer medical evidence. An untimely denial was a violation of the Act,
    however, the imposition of a penalty is not automatic, it is within the discretion of the WCJ.
    Here there was no abuse of discretion, for the reasons stated.
    see: Bruitco v. WCAB (US Airways Inc.) (Pa, Cmwlth. 2004)

e. Reasonable Contest
    Employer medical evidence rendered the contest of claim petition to be reasonable, after initial
    denial. Employer Medical expert questioned Employee total body pain symptoms in light of the
    mechanism of injury. Employer medical evidence, if believed, would have disputed Employee's

Practice Pointers:

1. Injury description - obtain a Medical Expert exam to challenge the Employee description.

2. Obtain employment records and scrutinize concurrent employment claims.

3. Establish a reasonable basis via medical evidence as soon as possible.

4. Establish mitigating circumstances in any penalty situation. Remember the WCJ has discretion.

5. Do not delay your assertion of any Termination/Suspension/Modification remedies when a claim
    petition appeal is pending appellate review.

6. Remember it is not a "reasoned decision" if the WCJ does not adequately explain findings.

Tuesday, March 19, 2013

Precise Wording of Job Offer = Suspension

One of the characteristics of works' compensation cases is that they can involve several different concurrent petitions and various factual and legal issues. We refer to a case as being a good example of a "return to work" letter from the employer, when in fact, a decision may reflect several issues which were successfully handled by the employer.

Vyas v. WCAB (Tyco Healthcare/Confab/KOP), No. 894 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court, authored by Judge Friedman on March 12, 2013, presented such a case.

Issues Presented:
1. Return to work letter - amount of post injury wage offer
2. Penalty to failure to accept/deny claim within 21 days.
3. Attorney fee assessment for Unreasonable Contest
4. Utilization Review of medical treatments
5. Extent of medical treatment responsibiity
6. Employer witness testimony based upon Hearsay or personal knowledge.

 Procedural Background
There were several petitions filed:
a. Claim Petition for lower back injury
b. Penalty petition for failure to accept/deny within 21 days.
c. Employee UR Review of Determination
d. Penalty petition for failure to pay medical expenses

Factual Background
May 9, 2007 injury, return to work, light duty until May 24, 2007.

September 2007 Employer medical evidence,  diagnosis "lumber strain and sprain"
with release to light duty work.

October 2007 Employer job offer letter - RTW light duty at pre-injury weekly wage.
Employee did not accept light duty job offer.
Employee medical evidence, cannot RTW, diagnosis "herniated bulging disc".

Employer witness, Environmental, Health & Safety manager testified regarding job offer.

WCJ 1st Decision find:

Employee suffered a work related "lumbar strain and sprain".
AWW included overtime.
WCJ award partial disability benefits for light duty work dates and total disability until October job offer. Benefits were suspended based upon refusal of job offer.
WCJ - Employer contest of claim was reasonable.

Employee appeal.
WCAB remand for findings of ongoing partial disability based upon alleged difference in pre and post injury earnings. Also remand regarding reasonable contest issue.

WCJ 2nd Decision find:

RTW job offer would not have resulted in a wage loss.
Employer additional testimony documented it's policy to pay workers in modified duty, their "pre-injury average weekly wage, without wage loss". Employee objected to this testimony, arguing it was based upon hearsay, the knowledge of others.

WCJ found contest of claim petition was unreasonable up to date of job offer, then is was reasonable thereafter. Award of partial amount of fees requested.

Commonwealth Court decision:

Affirm Suspension order.
WCJ relied upon employer testimony, credible evidence that employee would not have a wage loss as the plain language of the job offer was for payment of the average weekly wage (which included overtime). Rejected Employee argument that job offer was for 40 hours at prior hourly rate.

Employer manager testimony was not hearsay evidence.
Hearsay evidence, properly objected to, is not competent evidence to support a finding of fact.
Here the WCJ found the witness credible as to his personal knowledge of the employer's policies, including his prior experience of returning injured workers to new positions.

Unreasonable Contest Attorney Fees.
Reasonable attorney fees are awarded against the employer as a cost under Section 440, 77 P.S. 996 unless the record establishes a reasonable basis for the contest. Here the employer's contest transitioned from unreasonable to reasonable as of the date of the modified work offer.
citing: Arnold v. WCAB (Baker Industries) 859 A.2d 866, 870 (Pa. Cmwlth. 2004).
On this basis it was appropriate for the WCJ to limit the attorney fee award.

Penalty petition for non-payment of medical expenses.
Employee argued there was an obvious causal relationship of medical bills to the work injury.
WCJ disagreed and denied penalty. Court affirmed
Denied because the medical billing statements included treatments beyond the accepted injury.
Employer medical witness was found credible for diagnosis of "lumber sprain and strain".
Employee medical witness diagnosis of "herniated bulging disc" was not credible.
Treatment bills were for "herniated disc, lesions, thoracic sprain and radiculpathy".
WCJ noted, these conditions were never found to be compensible.

"We find unavailing Claimant's argument that merely because the diagnosed injury and the additional injuries impacted the lower back, the additional injuries are obviously a natural and probable result of the established, work-related injury". slip opinion at page 13.

In the absence of an obvious connection, Employee had the burden to prove the additional injuries arose out of the work injury. The WCJ found employee medical evidence was not credible or persuasive on this point. As Employee did not meet his burden of proof, it was appropriate that the WCJ did not penalize Employer.

Utilization Review - Employee Petition for Review
Employer filed a Utilization Review request of treatment provided by Dr. Pierce
UR Physician Thomas determined treatment provided by Pierce was not reasonable and necessary.
Court rejected Employee argument that Thomas, an expert in pain medicine was in a difference field from Pierce, an expert in "pain management".
Section 306(f.1)(6)(i) of the Act, 77 P.S. 531 (6)(i), only requires the reviewer to be of the same or similar specialty. The WCJ did not err in crediting Thomas' testimony.

Employee argued treatments by Dr. Pierce was "palliative" care which may be considered reasonable and necessary treatment. That may be true, but here the WCJ rejected the treatments not because they were palliative, rather as:
- many of the therapies did not follow standard treatment protocol;
- the treatments lacked documentation in accord with Pa State Medical Guidelines;
- Dr. Pierce kept incomplete records.
Substantial evidence supported the finding to affirm the UR Determination.

Practice Pointer:
Review the case background with an experienced work comp attorney, early in case assessment, as there may be multiple remedies available and multiple legal issues, within each case.
This case is a good example of the multiple remedies sought by employee.

Friday, March 15, 2013

Termination Remedy in Long-standing Lumbar Condition

The Employer's ability to secure a termination of workers' compensation liability, where the injured worker has a pre-existing non-occupational medical condition and the worker sustained a work injury to the same body region, is a recurring issue in work comp claims handling.

Another recurring issue is the extent of workers compensation liability based upon the description of accepted work injury. The description of the work injury is significant in a termination proceeding, as the Employer's examining medical expert must opine that the work related disability has ceased or that the remaining symptoms/disability are the result of a non-occupational condition.

Pleas v. WCAB (School District of Philadelphia), No. 1342 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Pellegrini on March 6, 2013 discussed these issues.

Factual & Procedural History

2002 Lumbar Laminectomy
July 2004 work injury, NCP describes "lower back strain and sprain".
March 2005 Lumbar laminectomy
November 2005 history of "pop" in back while at home
October 2008 Impairment Rating Determination 25%
July 2009 IME full recovery, Richard G. Schmidt M.D.
January 2010 Termination petition filed
February 2010 lumbar spine stimulator implanted

Employee medical evidence

Richard H. Kaplan M.D. treated employee since March 2007 for diagnoses of an aggravation underlying degenerative joint disease of the spine and recurrent disc herniation.
He also diagnosed failed low back surgery syndrome and chronic pain.
He recommended spinal cord stimulator, as necessitated by the work injury.
He acknowledged there was a long-standing history of degenerative lumbar findings.
He opined employee was totally disabled as a result of the work injury.
He did not compare employee's prior lumber MRI studies, pre-injury and post-injury.

Employer Medical Evidence

Richard G. Schmidt M.D. examined employee in 2008 and 2009.
Employee history was of lower back symptoms since the early 1990's.
Physical exam was improved 2008 to 2009.
Pre-Injury MRI February 2002 showed L5-S1 left lateral herniation
                   MRI August 2003 showed L4-5 left disc herniation, with post-op changes at L5-S1
                   MRI February 2004 showed L4-5 left lateral herniation, with post-op changes at L5-S1

*** There were no disc abnormalities, pathologies or injuries on any of the post-work injury MRIs that were not present on the pre-work injury MRIs.

Dr Schmidt opined that employee fully recovered from the work related lower back strain and sprain.

WCJ Decision

Termination granted. Dr. Kaplan was not credible to support diagnosis of aggravation of underlying degenerative joint disease of the spine as there was no evidence to suggest that claimant's work injury caused or aggravated any disc pathology.
He did not review and compare the pre-injury and post-injury MRI test results.

WCJ found the 2005 lumber surgery was not causally-related to the work injury, based upon review of the pre and post injury scans.

Commonwealth Court discussion

Employee argued WCJ capriciously disregarded competent medical evidence.
He had 2005 surgery due to aggravation of pre-existing condition... it was undisputed he suffered from post-laminectomy syndrome.

No, the accepted work injury was " lower back strain and sprain".
There was no claim being made or evidence of record to support a finding that the NCP was materially incorrect or to warrant amending the NCP to include disc pathology at any level including L4-5 and L5-S1.  The WCJ specifically found no causal relation between the work injury and 2005 surgery.
[slip opinion pages 6-7 citing WCJ finding #8].
Whether employee was fully recovered from unrelated 2005 surgery was irrelevant to this termination determination.
There was no capricious disregard of competent medical evidence, rather the WCJ made necessary credibility determinations, which are supported by the record. No error here.

Practice Pointers:
1. Termination remedy is available where work related condition has ceased. Before the IME,
    document the extent of the work injury. Has the description of injury been amended by agreement or
    WCJ decision?

2. Take the extra time and expense to have the prior diagnostic test films available for review and
    comment by your medical expert.

Wednesday, March 13, 2013

Hearing Loss Claims - a Successful Defense Strategy

A worker may file for disability benefits for permanent loss of hearing caused by long-term exposure to hazardous occupational noise. Benefits are payable according to a formula. See Section 306(c)(8).

Whether the worker has been exposed to hazardous occupational noise
whether the employee has a long-term exposure to occupational noise,
is an affirmative defense of the Employer, these are not elements of the worker's burden of proof.

Hazardous occupational noise is defined as: noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Standards, 29 CFR 1910.95...
exposure exceeding ninety decibels (90 dB) for an 8 hour day. WCA Section 105.4.

Long-term exposure means exposure to noise exceeding the permissible daily exposure for at least 3 days each week for 40 weeks of one year. WCA Section 105.6.

Aquilino v. WCAB (Philadelphia Gas Works), No. 1599 C.D. 2012, an unpublished memorandum decision of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on March 11, 2013 reviewed these issues.

Factual & Procedural History

Employee worked for Employer from 1978 until December of 2007 when he suffered a compensable work related back injury. He did not return to work.
In April of 2009 he filed a claim for bilateral hearing loss.

Occupational exposure to noise included:
- two years in the streets department using pneumatic tools and heavy equipment
- twenty one years in field service (streets dept.) in loud commercial buildings
- three-four years in the meter shop.

The meter shop was the subject of testimony and audiometric testing.
Employee worked at an area adjacent to the "prover meter" which was "very loud".
He worked with pneumatic tools all day.

Medical Evidence

Employee medical expert Aaron Shapiro M.D. performed audiological testing in January 2009 which showed 29.4% impairment. He related this hearing loss to the work history of noise exposure.

Employer medical expert Lee Rowe M.D. performed audiological testing. He obtained a history of co-morbid factors related to hearing loss, including smoking.
He opined employee hearing loss was consistent with age related presbycusis, not occupational noise exposure for 2 reasons:
1st there was an accelerated deterioration of audiometric results in the 8 months since Shapiro's tests
2nd once he was removed from work noise there should be no further work related deterioration.

Employer Testimony

Shop Superintendent Ottinger testified regarding work processes and timing of noise creating activity.
He described work area and distance from machines. Hearing protection was always available.

Safety Manager Bright testified regarding field service jackhammer use and hearing protection.

Industrial Hygienist Allhouse testified regarding sound level testing of co-workers in employee work areas. Time weighted average exposure figures were 66.6 dBA over an 8.5 hour sampling period.
This was below the OSHA 90 dBA threshold hazardous noise level.

WCJ decision
Found Employer witnesses were credible, Employee testimony was rejected.
Employee did not meet his burden to establish a compensible hearing loss.
Employer met its burden to establish its affirmative defense.

Commonwealth Court affirmed claim denial.

1. Employee argue - employer medical evidence deducted a portion of hearing impairment for presbycusis, in conflict with Pa. Supreme Court at LTV Steel Co. v. WCAB (Morenza (2000).

No, Here Employer medical expert did not allocate a portion of loss to presbycusis and a portion to work exposure, rather he stated Employee exhibits evidence of an accelerated hearing loss consistent with presbycusis and not secondary to occupational noise exposure.

2. Employer affirmative defense evidence, dosimeter readings were not adequate under Joy Mining Machinery Co. v. WCAB (Zerres) Cmwlth. 2010) as:
a. tests were performed 2 years after employee ceased work,
b. worker was not performing employee's mechanic job,
c. readings were only one day,
d. sound-proofing material was not in place when employee worked.

No, here, unlike Joy, WCJ found employer's evidence reflected Claimant's individual exposure."

3. Employee argue WCJ erred in denying claim and not determining whether employee had a [threshold] 10% bilateral hearting loss and whether he was exposed to [any] occupational noise.

No, Employee has the burden to establish a 10% or more, permanent hearing loss, caused by long term exposure to hazardous occupational noise.
Here, Employee did not establish a work related loss by credible evidence. He is not entitled to a "presumption" of causation, just because his hearing loss exceeds 10%.

Practice Pointers:

1. Determine which employer witnesses can establish the work conditions that existed at the time of
    the Claimant's employment.

2. Determine if any prior audiometric testing is available to document the work environment during
    claimant's employment years.

3. Determine if the work environment can be "recreated" for current testing.

4. Medical Expert Witness must be familiar with the Employee burden of proof and the Employer
    proof of an affirmative defense.

This case reflects a thorough job of identifying and presenting witnesses with a detailed knowledge of the work environment during claimant's work years. This allowed the WCJ to find as a fact that the evidence reflected claimant's work exposure.

See also a prior unreported "companion" case at: Stallings v. WCAB (Philadelphia Gas Works)
 Pa. Cmwlth. No. 296 C.D. 2012 filed September 7, 2012 by Judge Pellegrini.

Monday, March 11, 2013

WC Credit for Private Disability Insurance Benefits

An Employer may be entitled to a credit against the work comp liability, for payments made to an injured employee through an employer-funded benefit plan.
A 3 part test will determine if the credit is available against the work comp liability.

Frank v. WCAB (Marathon PT Inc), No. 1705 C.D. 2012, an unreported memorandum opinion of the Commonwealth Court of Pennsylvania, authored by Judge Cohn-Jubelirer on March 4, 2013 addressed this issue.

Factual & Procedural History

Employee was the president and owner of a subchapter S corporation, through which he performed professional services as a physical therapist.
2004 Employee had a left knee surgery, a total knee replacement procedure.
March 2008 Injury, Employee had a left knee contusion, sprain & strain. NCP issued.
July 2008 surgery due to breakdown of knee apparatus and progressive degeneration of knee.
September 2008 Employee return to work.
November 2008 Employee stop work and close business due to knee pain and instability.

Employer Termination Petition filed.
Employee Review petition filed.
Review Petition to add reconstructive knee surgery to NCP description of contusion, sprain & strain.

In addition to WC total disability benefits, Employee received $7,050 per month from disability insurance policy, which premiums were paid by Employer Corporation.

WC Insurer was unaware of disability insurance payments until July 2009 hearing regarding Termination and Review petitions.
Employer accountant testify regarding subchapter S corporation taxation of disability insurance premiums.

WCJ found WC Insurer was entitled to a credit for concurrent disability insurance benefits as the premiums were paid by the Employer Corporation.
WCJ granted Employer Termination petition.
WCJ ordered Employee to reimburse WC insurer for the amount of concurrent benefits paid in past... as there were could be no "future credit" as there were no future benefits payable after the termination order.
Employee appealed the Credit/Re-Payment issue.
[ no appeal re termination or denial of review injury description]

Commonwealth Court Decision

AFFIRMED Credit/ Re-Payment order.

Employee argued relief is limited to a subrogation claim by the Disability insurer, payment to the WC insurer is not allowed by Act.
Court says credit is allowed where Employer makes payments in lieu of compensation  for a work injury. See: Kuhn v. WCAB (Leader Nursing Centers Inc.) (Pa. Cmwlth. 1986).

Section 319 subrogation could apply to the Disability insurer, however they did not seek subrogation, so credit is appropriate.
An Employer may be entitled to a credit for employer-funded benefit payments to inured workers where those payments were made in lieu of work comp
where the employer has already paid compensation that is due and a credit will avoid a double recovery.

A credit is not available is the worker is required to deplete exhaustible benefits, to which he would be entitled for a non-work illness, suck as sick leave.

Here the private disability policy premium was paid by the Subchapter S corporation.
All 3 criteria for a credit were met:
1st The employer purchased the insurance policy,
2nd Payments were for a disability arising in the employment,
3rd The payments were not wages for employment.
[See: Humphrey v. WCAB (Supermarket Service) (Pa. Cmwlth. 1986).]

A credit is due as to the WC Insurer for all periods during which claimant received disability policy benefits. As the WC Insurer paid claimant, claimant must re-pay the WC insurer. Claimant has no right to a double recovery. WC insurer remedy was not limited to a supersedeas fund reimbursement request, remedy was re-payment!

Practice Pointers:
1. Question claimant regarding the receipt of any insurance benefits during work related disability, then investigate whether a credit is available. It may not be readily apparent at the outset that a credit is available.
2. Use the LIBC 750, 756 & 760 forms to collect information from injured workers regarding any benefit payments.
3. Do so, even after the initial investigation and/or litigation of a claim.

Thursday, March 7, 2013

Subsequent Termination Petitions

When an Employer is unsuccessful in the litigation of a Termination petition, the Employer may pursue the remedy of termination in a subsequent proceeding. The Employer burden of proof is to establish by unequivocal and competent medical evidence that the workers' disability has ceased or that any remaining disability is not related to the work injury.

An interesting issue arises when the second Employer medical expert does not describe the "work injury" in the same manner as the prior WCJ decision. This discrepancy may imperil the termination request.

Julio PazyMino v. WCAB (Crime Prevention Association) at No. 1659 C. D. 2012, an unreported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Colins on
February 26, 2013 discussed this issue.

*The procedural history of this case is lengthy. For this discussion, we will abbreviate the details*

Procedural & Factual History

June 2000 Injury, trip and fall. Employee was director of this non-profit in a sedentary.
He continued to work and receive medical care.
September 2003 He reduced his work hours and filed a Modification petition.
An NCP was issued for a "Lumbar strain & sprain".
December 2003 Employer files Termination petition.

October 2004 First WCJ decision, deny Termination.
Modification granted, Partial disability benefits awarded.
WCJ found injury caused pre-existing stenosis to become "truly symptomatic with nerve involvement", radiculopathy was evidence of recent trauma, not from a chronic problem.

July 2006 Employee work 1.5 hours per day, placed on inactive status, Total disability was paid.

April 2006 IME Dr. Malumed, Employee fully recovered.
Employer file Termination petition.

April 2008 Second WCJ decision, grant Termination.
Found Employee recovered from lumbar strain & sprain, and radiculopathy.
Problem: Second WCJ did not consider "stenosis" to be part of work injury.

February 2010 Commonwealth Court vacated & remanded termination petition as Second WCJ did not include aggravation of pre-existing stenosis as part of accepted work injury.

February 2011 Second WCJ remand order, new findings, grant Termination.
Based upon Dr. Malumad opinions Employee fully recovered from work injuries including aggravation of stenosis.

Employee still had chronic back pain from pre-existing stenosis BUT it was the result of the normal progression of his pre-existing stenosis, not the work-related "aggravation" of the stenosis.

Commonwealth Court affirmed the Termination order.

Second WCJ found Employer medical evidence was credible.

Employee argued Dr Malumed testimony was not legally competent to support a termination as he did not acknowledge the accepted work injuries. He did not believe that Employee sustained any injury beyond the lumbar strain & sprain.
An Employer may not re-litigate the scope or extent of the accepted injury in a subsequent proceeding.
A Medical opinion is not legally competant if it does not acknowledge the accepted work injury and opine the worker recovered from those injuries.

Dr Malumed specifically addressed all of the components of the accepted work injuries - the radiculopathy; the aggravation of stenosis - he opined Employee fully recovered, when asked a hypothetical question .
Dr. Malumed apparently held the opinion that Employee's chronic back pain was the result of the progressive worsening of the pre-exisiting stenosis, he did not relate those symptoms to the work trauma.

These opinions were deemed to not conflict, as the First WCJ expanded the work injury to "only" include the pre-existing stenosis become "symptomatic". The work injury did not change or aggravate the stenosis itself, it only made it symptomatic. Dr. Malumed believed there was a full recovery from the work related injuries, employee's condition had improved, there were no more radicular findings.

"There is no requirement, however, that the medical expert believe that the claimant actually suffered the accepted injuries or believe that the accepted work injuries were in fact work-related."
slip opinion page 10.
***{My understanding of past case law was that the medical expert had to accept the description of
       the accepted work injury... this case puts a new twist on that analysis}

"It is well established that medical expert testimony that specifically addresses the accepted work injuries and unequivocally opines that the claimant has recovered from those injuries is competent and sufficient to support the termination of benefits, even though the expert does not believe the injuries occurred or were the result of the work-related accident."
slip opinion page 10, citing O'Neill v. WCAB (News Corp. Ltd.)(Pa. Cmwlth. 2011).

Practice Pointers:

1. It is imperative that the examining medical expert have an accurate description of the work injury, including any modifications by prior agreements or WCJ decisions. Do not rely upon the accuracy of the original NCP description.

2. A prior WCJ decision may "modify" and/or "amend" the description of injury, based upon the evidence presented, even in the absence of a Claimant Review petition.

3. When pursuing a subsequent Termination petition, assess whether there is an advantage to having the same medical expert perform serial examinations and be in the position to comment upon any change in the worker's physical condition.

Monday, March 4, 2013

Issuing the Notice of Ability to Return to Work form - LIBC 757

A Notice of Ability to Return to Work LIBC-757 must be issued when the Employer/Insurer receives medical evidence that Employee is able to return to work in any capacity. The Employer/Insurer must provide prompt written notice on a form prescribed by the Bureau.
[ See: 306(b)(3)].

The case law regarding "exceptions" to this rule continues to develop.

If the Modification/Suspension is based upon surveillance evidence (not medical evidence) or if the employee is found to be working, a notice form may not be required.
Burrell v. WCAB (Phila. Gas Works)(Pa. Cmwlth. 2004).

Slight modifications to an employee's work restrictions may not require a new form, where the employee is working. Ashman v. WCAB (Help Mates Inc.) (Pa. Cmwlth. 2010).

Zyskowski v. WCAB (Allied Services) No. 1665 C.D. 2012, an unreported panel decision of the Pennsylvania Commonwealth Court, authored by Judge Simpson on February 26, 2013,
addressed this issue.

Factual & Procedural History

A part-time certified nursing assistant injured her low back on October 6, 2009.
On the same day she was examined by a panel physician and released to return to modified work duties. Employee returned to perform a monitor position, an assignment where she would observe TV monitors at the nursing station. This position could be performed while sitting or standing.
Employee alleged difficulty with back pain from prolonged sitting.

Panel MD 1 released her to regular duty on November 13, 2009
Panel MD 2 released her to modified duty, 10lbs lifting on November 24, 2009.
Employee did not return to work after November 24, 2009.
She wrote to Employer she was exercising her right to seek her other medical care.
Employee testified she called off work with no MD excuse on the 14th, 15th, 17th, 21st and 22nd.
She stated she was "no call, no show" on the 27th, 30th and December 1st.

Employer witness stated the Disciplinary Policy was that two (2) consecutive "no calls, no shows" was grounds for termination.
Employee was terminated for violation of this policy.

WCJ decision

In Claim petition litigation the WCJ found a work injury occurred, but employee was not entitled to indemnity wage loss benefits as she was provided work within her capabilities and she voluntarily quit, resulting in her termination.

[ as an aside, employee medical witness did not state she was totally disabled or unable to perform the monitor position]

Commonwealth Court reasoning

Employee argued that Employer is required to issue a Notice of Ability to Return to Work on November 24, 2009, failing to do so, she did not have a "good faith" duty to return to work after that date. She is entitled to total disability benefits.
This argument was rejected.

"The clear purpose of Section 306(b)(3) is to require the employer to share new medical information about a claimant's physical capacity to work and its possible impact on existing benefits".
slip opinion page 10, citing Burrell.

"...formal notice is not required where a claimant is actually performing work".
 slip opinion page 11 citing Ashman.

Here, as in Ashman, this employee returned to work without receipt of any notice form.
She worked until she decided to not continue.
She was aware of her medical restrictions.
She was familiar with the monitor work duties.
She was not receiving benefits, so this was not a situation where there was an attempt to "change" her "existing" benefits based upon new medical information.

Practice Pointers:

1. In what seems to have become a secondary issue, the employer was successful in avoiding ongoing
    disability benefits by (a) proving suitable work availability and (b) proving termination for cause.

2. IMO is is a good practice to always issue an LIBC 757 Notice when a medical report is
    received which addresses the employee's work capabilities.
    I like to have "one rule" to simplify these procedures and eliminate the necessity to evaluate the
    need to issue/not issue a form in each case.