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.

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