Friday, May 31, 2013

Pennsylvania Insurers: Do Not Err on NCP ! ... you may be unable to correct any mistake

Errors in Pennsylvania Workers' Compensation documents.
The Pennsylvania Workers Compensation Act requires insurers and employers to make a decision to accept or deny an injury claim within 21 days of notice of disability. [Section 406.1(a)].

Often, by the 21st day, there may not be sufficient information available (medical) to form an intelligent, informed decision as to the acceptance/denial of an injury claim.

A remedy available to an insurer or employer is to issue a "Notice of Temporary Compensation Payable" LIBC 501 (NTCP). This procedure allows the payment of indemnity wage loss benefits without prejudice or admission of liability by the employer. [Section 406.1 (d)].

At the 90th day, if the "temporary" notice is not revoked, it is deemed "converted" to a Notice of Compensation Payable (NCP) and the employer is deemed to have admitted liability. 

This process and procedure functions well, for the vast majority of injury claims. BUT, at times there are instances where an injury is accepted via a NCP or "converted" NTCP and information becomes available to the employer or insurer after that 90th day, which conflicts with the original information or assumptions. This scenario may occur when investigation reveals a medical finding or diagnosis of a non-work related condition of an employee. This issue may occur where post-accident medical records reveal intoxication at the time of injury. There are a number of circumstances which can demonstrate an error in the decision-making process, that a compensible work injury occurred.

The Employer Remedy in such circumstances is to file a Petition for Review of the Notice of Compensation Payable.

Rodriguez v. WCAB (Pitney Bowes, Inc.) No. 1295 C.D. 2012 is an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania authored by Judge McCullough on
May 24, 2013 which addressed a circumstance where review of a NCP was requested.

Factual & Procedural Background
On March 3, 2009, Employee fell at work, striking both knees.
Employer issued an NTCP on March 23, 2009 (the 20th day). Subsequently employer issued an NCP on May 4, 2009 (the 61st day) which described the work injury as "Right Knee ACL tear". Employee returned to work over several periods of suspension of benefits, partial disability benefits for wage loss and total disability during work absence.

About ten months later, in January 2010 employee received arthroscopic surgery by Dr. David Canner to her right knee.
In November 2010 Employer filed a Termination petition alleging a full recovery based upon an IME of Dr. John Perry on July 13, 2010.
In response, in December 2010 Employee filed a Review Petition to modify the description of her work injury to include conditions beyond the scope of the NCP (and IME) involving her left knee, lower back and both hips.

In the litigation of these consolidated petitions before the WCJ, Employer made a oral motion to amend the description of injury, as employee's surgeon Dr Canner's operative note from January 2010 did not reflect an ACL tear to employee's right knee!

***Importantly, Employee testified she was under the care of a physician before her work injury for knee pain. She received medications and corticosteriod injections. Employee medical expert Dr. Joseph Guagliardo testified she sustained a menisci tear and aggravated her pre-exisiting condition in both knees, when she fell at work. He had diagnosed patellofemoral chondritis (arthritis).

Dr. Guagliardo acknowledged that Dr. Canner did not find any tears in employee's knees, including an ACL tear, at the time of surgery. A 2008 (pre-injury) MRI indicated a menisci tear of the right knee. He agreed employee obesity could accelerate degenerative conditions in her knees even in the absence of any acute or repetitive trauma.  However he opined her pain, from the work injury limited her activities.

Employer medical expert opined the Dr. Canner operative report confirmed employee's ACL was completely intact. Post-injury MRI reflected marked degenerative changes and no meniscal tear. Dr. John Perry diagnosed degenerative changes of her right knee which are related to her obesity, not the work injury.

Employer also presented an additional medical expert, Dr. Robert Mauthe, a board certified specialist in Physical Medicine and Rehabilitation. He examined employee in February 2011 and opined comparison of Pre- and Post-injury MRI scans demonstrated no substantial change in her degenerative knee condition. The Canner operative report confirmed the absence of an ACL tear or any recent trauma. Dr. Mauthe diagnosed the work injury as a "contusion of the right knee". The work injury did not cause or aggravate her pre-existing degenerative arthritis. The work injury did not cause any menisci tears of the kness or any injury to her back or hips.

[Employer presented testimony regarding the availability of employee's pre-injury job. Employee did not return to work as requested in a job offer.]

WCJ decision
The WCJ accepted employer medical experts, Drs Mauthe and Perry as to the correct description of the original work injury, as a "right knee contusion". All of the medical evidence (including employee expert) concluded that employee did not sustain an "ACL tear".
The NCP description was factually wrong.

The WCJ found that employee sustained a contusion to her right knee, she had recovered from this injury and she was capable of performing the job offered to her.
The NCP was amended.
The Employer Termination petition was granted.
The Employee Review petition was denied.
The Employer Suspension request (based upon the job offer) was moot.

Commonwealth Court decision
The WCJ decision was remanded for further findings as to whether the employer promptly commenced payment of compensation prior to completing its investigation into the nature of employee's injuries.

Why is the "timing" of the employer investigation so crucial to the availability of the employer remedy to review and correct and obvious (undisputed) error in the NCP description of injury?

The answer is the the Commonwealth Court believes this situation is controlled by the prior decision of the Pennsylvania Supreme Court in Beissel v. WCAB (John Wanamaker, Inc.) 465 A.2d 969 (Pa. 1983). Beissel is cited for the proposition that an employer is precluded from amending an NCP where the employer had sufficient opportunity to complete its investigation and discover the correct nature of the work injury, prior to issuing the NCP.

The Beissel decision was modified by the subsequent decision of the Pennsylvania Supreme Court in Barna v. WCAB (Jones and Laughlin Steel Corp.) 522 A.2d 22 (Pa. 1987).
(A Fried Kane Walters appellate case)
Barna is cited for the proposition that an employer may petition to review/amend a description of injury where the employer did not commence or complete its investigation of the cause of injury, prior to meeting its duty to promptly commence compensation payments. In Barna, the employer asserted the iinjury was not compensible as employee's back symptoms emanated from a non-occupational illness.

In the instant case, the Commonwealth Court believes it is proper to determine whether the employer completed their investigation, before issuing the NCP. If they did, they have no remedy to review the erroneous injury description. If they did not complete their investigation, they may pursue a remedy to review the description of injury.
Remember, in this case all of the medical experts were in agreement, that employee did not sustain an ACL tear at the time of her work-related fall.
In Barna and Beissel, the medical experts did not agree that the description of injury was patently wrong.

In my opinion, the workers' compensation system should allow the correction of errors which are obvious and undisputed by the evidence.

After-Discovered evidence is admissible and has served as a basis for remand from the WCAB level back to the WCJ level, for appropriate findings of fact to serve the interests of justice.

In the instant case it appears the employer/insurer was unaware of the pre-existing medical treatment to employee's knee when the claim was filed and the compensibility was decided. Likewise, none of the parties had the information available regarding the absence of an ACL tear until Dr. Canner actually observed those structures at the time of the arthroscopic procedure in January 2010. This was approximately 10 months after the injury. The date of surgery was about 8 months after the NCP was issued. Under these circumstances, this case is not a question of lazy or incomplete claims investigation. It is a situation where the best evidence did not exist at the time the NCP was issued.

Here MRI scan diagnosis of an ACL tear was wrong. This is not a situation where anyone was attempting to mislead the employer/insurer. The employer is compelled to act regarding the injury claim. Where the Workers Compensation Act compels the employer to make important decisions within a limited timeframe, it is likewise appropriate to allow the correction of errors that arise from those procedural requirements.

The debate over the availability of any remedy to the employer is curious. Section 413 (a) of the Act allows the WCJ to "at any time, review and modify or set aside a NCP, upon petition filed by either party ... or in the course of the proceedings under any petition pending before a WCJ, if it be proved that such NCP ... was in any material respect incorrect." The WCJ is clearly authorized to correct this type of error.

The case was remanded. Let's see is common sense prevails in this matter and allows the correction of an obvious error.

Practice Pointers:
1. Once again we see the important consequences of a timely and thorough review of new injury claims. A best practice requires the discovery of background medical records. In this case, the absence of the ACL tear would not be discovered in past medical review, but in other situations, additional evidence may make an important difference in the compensibility decision process.
2. In the event that your ongoing investigation should develop evidence that an accepted work injury has a non-occupational cause, you may pursue the remedy to review and correct the compensation documents before the WCJ.
In some instances you may want to correct the description of injury. In other circumstances you may want to address the work relation of the medical condition or the resultant disability. Prior appellate decisions authorize this remedy, consistent with Section 413 (a) of the Act.

Tuesday, May 28, 2013

The "Law of the Case" Doctrine

This is an entirely self-serving post. Let me explain. Several years ago a claimant filed a petition and made arguments, which essentially challenged determinations made in an earlier portion of the litigation. This was not one of those "res judicata" or "collateral estoppel" legal arguments.
These arguments conjured up a thought... something I had learned many years earlier, something about "the Law of the Case".

When this type of argument arises, I find it difficult to locate any case citations to explain this legal argument. Now, I've found a recent reference to this doctrine and I thought I should read it, write about it and have some documentation available (that I can find), to raise this argument, when it applies in my work comp cases. As we know, in workers' compensation, there are many times when it seems that issues recur in later litigation, which we believe were decided in prior litigation.

Madden v. WCAB (Gutter Guard), No. 2218 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania authored by President Judge Pellegrini on May 20, 2013, discussed this topic, in the context of a Remanded Claim Petition.

Factual & Procedural Background
In 2003 Employee filed a claim petition for a work-related motor vehicle accident.
Employer filed a Notice of Workers' Compensation denial, contending that Employee was not entitled to benefits as he consumed alcohol before the accident.
Importantly, the Employer did not file a timely answer within 15 days of the assignment to the Workers' Compensation Judge (now 20 days).

Employee filed a motion to have the averrments of the claim petition, deemed admitted.
The general rule is that the failure to file a timely answer precluded Employer from presenting evidence in rebuttal or as an affirmative defense to factual averrments in the petition.
See: Yellow Freight Systems, Inc. v. WCAB (Madara) 423 A.2d 1125 (Pa. Cmwlth. 1981).

WCJ decision l
The Workers' Compensation Judge (erroneously) did not act upon Employee's motion.
The WCJ accepted Employer's evidence on the intoxication issue and denied benefits.
The Employer's medical expert was found credible that there was no evidence of disability as of his January 8, 2004 examination. (a significant finding!)

WCAB Appeal
In Employee's appeal, the WCAB vacated the WCJ decision and remanded to consider the "Yellow Freight" motion. On remand, the WCJ denied the motion and denied benefits, finding employee was intoxicated and not an authorized driver. The WCAB affirmed this remanded decision.

Commonwealth Court Appeal (Madden l)
In Employee's appeal to the Commonwealth Court, this claim denial was reversed.

Employer was precluded from assertion of the affirmative defense of intoxication or scope of employment. BUT the untimely answer did not prevent Employer from establishing that Employee had fully recovered from his injuries. The Court found there was substantial evidence to support the WCJ finding of full recovery, yet the case was remanded for a determination of the exact date.

On remand the WCJ found employee had fully recovered from the work-related disability as of the January 8, 2004 physical examination of Employer medical expert. Benefits were terminated as of this date. The WCAB remanded once again, for specific findings as to the average weekly wage, the benefit rate, the period of benefits, the attorney fee deduction and payment of costs.

The WCJ made these findings and terminated benefits. Employee only appealed the Termination finding. The WCAB affirmed this finding.

Commonwealth Court Appeal (Madden ll)
On Employee appeal to the Commonwealth Court he argued there was not substantial evidence in support of the termination finding. Employee argued the WCJ should have been barred from considering any evidence from Employer, including its medical expert evidence, because of the untimely answer. Employee argued the WCJ was required to accept his medical expert opinions.

These Employee arguments were rejected.

The Court already resolved the issue raised by Employee. In Madden l, the court decided the untimely answer did not preclude employer from submitting medical evidence of a full recovery . The WCJ found this evidence to be credible. This employer medical evidence was substantial evidence in support of a finding of termination.

"Because we have already decided those issues, Claimant is barred from attempting to have those revisited under the law of the case doctrine."
"The law of the case doctrine sets forth various rules that embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter." slip opinion page 5.

Practice Pointer:
 The "law of the case" argument clearly applies to later phases of a litigated matter.
Query: does it apply to latter petitions dealing with the same date of injury?
In my opinion it does. For this reason, this legal argument may be relevant in many work comp cases.

Friday, May 24, 2013

2013 Pennsylvania Super Lawyers List

I was selected to the 2013 List of Pennsylvania Super Lawyers in the practice area of Workers' Compensation. As the magazine was delivered this week, I thought it was worth a (humble) mention.

This list is comprised from peer nominations of fellow attorneys. A research evaluation is performed of the candidate pool. In peer evaluation of candidates, they are grouped according to their primary practice area. Candidates are also grouped into categories based on law firm size.
The Magazine and this list have published by Thomson Reuters Group since 2003.

Thursday, May 23, 2013

Your Traveling Employee is always Working!

Your traveling employees have a Legal Presumption of remaining within the Scope of their Employment for purposes of your workers' compensation liability.

When your traveling employee is at a location, at the time of a serious motor vehicle accident, which you cannot explain on this basis of his regular work duties, you may still have liability for the resultant injuries.

Even though generally the employee has the burden to prove all of the elements of a work comp claim, in certain instances the roles are reversed and the Employer has the duty to prove the employee was not working!

K. Beatrice Food Service v. WCAB (Cragle) and Uninsured Employers Guaranty Fund, No. 477 C.D. 2012, an unpublished memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on May 20, 2013, addressed this issue.

[Cragle also involved issues regarding the status of certain individuals as owners of the employer business and their status as an uninsured employer.]

Workers' Compensation liability for traveling employees can be rather expansive.
Even though the employee has the burden of proof to establish all of the elements in a Claim Petition, this significant burden to establish an injury "arising in the course of employment" and was "related thereto", may be diminished, where no one can explain the "reason" for the traveling employee's location at the time of an accident.

A non-traveling employee will experience denial of his/her claim, under similar circumstances.
Why the difference?

The General Rule regarding traveling employees has emerged over the years, by the decisions of Appellate Judges.  An employee setting out on the business of his/her employer, remains within that course of employment, UNLESS the employer can prove that the employee engaged in an act so foreign to his employment, that there is a distinctive break, so as to constitute an abandonment of that employment.
See: Pfizer, Inc. v. WCAB (Gresham) (Pa. Cmwlth. 1989) and Buckeye Pipe Line Co. v. WCAB (ABT) (Pa. Cmwlth. 1998) among others.

Factual Background & Procedural History
In the instant case Cragle, a truck driver/delivery person drove his truck across a northbound lane, struck a sign, then traveled across the northbound and southbound lanes where he struck a tree.
His physical and mental injuries were so severe he was incapacitated and unable to speak.

Employee's court appointed guardians (his parents) filed a Claim Petition.
In the ensuing litigation, the Employer witnesses testified that it was a known policy was that employees could not use the truck for personal use. At the warehouse, Employer provided Employee with a list of invoices with the customer addresses and the order of deliveries, but Employer did not dictate the specific route to reach each scheduled destination.

On the date of injury Employee made his two scheduled morning deliveries and returned to the warehouse to reload for afternoon deliveries. These afternoon deliveries, called the "Valley run" were all located SOUTH and SOUTHWEST of the warehouse. Employee had departed and crashed approximately 3 miles NORTHWEST of the warehouse, the OPPOSITE direction of his scheduled afternoon deliveries.
Employer testimony admitted Employee "could have" taken this route to get to one of the "Valley" deliveries, but it was out of the way and impractical.

WCJ decided the employee was in the course of his employment at the time of injury.
His rationale?

"The only grounds for [Employer] alleging that [claimant] was not in the course of his employment was the fact that [claimant] was two or three miles north of [employer's] warehouse whereas his destinations ... were to the south of the warehouse".

That [claimant] was a few miles to the north of the warehouse is insufficient to lead  to any reasonable conclusion that he had deviated from his job duties and taken himself out of the course of employment".

"It is reasonable to conclude [claimant] got into his truck without thinking of his exact destination and started north by mistake".  (WCJ decision finding #3).

My argument is that it is equally reasonable to conclude this Employee was going somewhere else, other than the location of his first afternoon work delivery!

In the absence of this "presumption", given to traveling employees, this Employee would not prevail as he cannot establish a work relationship to his activities at the time of the accident. Frankly, whichever party has the burden of proof would fail, as there is no evidence, no explanation for Employee's actions and location at the time of this accident. As the presumption places the burden upon Employer to establish that Employee was not working... they cannot do so...they cannot prevail.

Commonwealth Court affirmed this claim petition award and reasoned the WCJ did not err in concluding Employee was in the course of his employment at the time of his motor vehicle accident.

Employer's argument that they rebutted the presumption via evidence of Employee's errant location was rejected. They argued Employee was (1) miles away from his delivery route, (2) traveling in the opposite direction, (3) there was no evidence he was there for any business purpose and (4) this deviation from work assignments was not minor.

The Commonwealth Court referenced a notorious case to support their scope of employment and personal deviation analysis ... Roman v. WCAB (DER) (Pa. Cmwlth. 1992). 
In Roman, the Court reversed a WCJ denial of a claim petition, reasoning that a traveling construction inspector, was entitled to a presumption he remained within the course of his employment, despite testimony he would regularly visit his girlfriend, when traveling in the area of her residence. The WCJ had rejected the credibility of Roman's testimony that he was traveling to his hotel room, not to his girlfriend's house at the time of his one-vehicle accident . However, on appeal Employer's evidence was deemed "woefully inadequate" for the purpose of rebutting the presumption and for showing that he had abandoned his employment.

In the instant case, analysis of this scope of employment issue is limited to conjecture. The WCJ observed no one may ever know why this employee was at that precise location at that time of day.
"The possibilities are endless and equally inferential". It is said that the WCJ drew the inference that employee drove northbound by mistake. (is this an inference or a guess?)

The Court "reasoned", that Employee routinely travels these delivery routes. Despite the Employee experience with these driving routes, there is nothing to suggest that it was impossible for him to make such a mistake, ie, driving in the wrong direction.
(is that a convincing statement?)

So this Employee was at this accident location through an inadvertent mistake... a conclusion that places him within the scope of his employment... and a conclusion that is not supported by any evidence, other than this is the "inference" selected by the WCJ to provide an "explanation" to a situation without any explanation. Not a very satisfying means to assign legal liability in a tough case.

Practice Pointers:

1.   As a general policy, Employers must strictly enforce any limitations upon the use of work vehicles.
This may limit the argument that employees have been "allowed" to use vehicles for personal errands.
Such flexibility in the work rules will allow the argument that those personal activities are not a deviation from one's employment relationship... as they have become "part of the job".

2. This accident investigation identified many relevant facts which supported the employer's position that this employee was not in the usual place, if he was actually conducting his usual work activities. I'm not sure you could improve upon this factual defense.

Monday, May 20, 2013

Claim Denial and the "Reasonable Contest"

Denial of an injury claim may be the best defense to a questionable Workers' Comp disability case.

Some old sage insurance claims professionals will rely on their years of experience and a "gut feeling" when the alleged "facts" of a claim report do not "add up".  The risk associated with denial of a reported injury claim is that the Workers' Compensation Judge may find there was an unreasonable contest of the claim and assess the payment of claimant attorney fees, in addition to the wage loss benefits.  At times, incurring this risk is justified. [Section 440 allows the assessment of attorney fees].

Wrecsics v. WCAB (National Carriers, Inc.) an unreported memorandum decision of of the Commonwealth Court of Pennsylvania authored by Senior Judge Friedman on August 24, 2012, illustrates this employer strategy.
Recently, the Supreme Court of Pennsylvania denied this Employee's Petition for Allowance of Appeal via per curiam order dated May 9, 2013.

Factual and Procedural Background

Employee alleged he slipped and fell in the course of his duties as a truck driver with Employer.
Employer filed a Notice of Denial that a work related injury occurred or that an injury occured within the scope of his employment.

Employee testified. Employee presented a fact witness. Employee presented 2 Medical Expert witnesses, who relied upon Employee's description of the work injury.
Employer presented 2 fact witnesses and one Medical Expert witness.

WCJ found Employee was not credible regarding (1) the occurrence of a work related fall or (2) the extent of his injuries. As Employee's Medical Experts relied upon his version of events, which was discredited, their opinion testimony was rejected.

Employee Appeal, WCJ did not author a "Reasoned Decision".

Section 422 of the Pennsylvania Workers' Compensation Act requires a "reasoned decision",
"containing findings of fact and conclusions of law based upon the evidence as a whole which clearly states and explains the rationale for the decisions so that all can determine how and why a particular result was reached...". See also: Daniels v. WCAB (Tristate Transport) (Pa. 2003).

Application of the Legal Standard

Here the Employee testified before the WCJ. The WCJ observed employee's demeanor. Where a witness testifies before the WCJ, a mere conclusion that the witness was credible (or not) is sufficient.

A different rule applies when the witness does not appear before the WCJ. When the witness does not appear before the WCJ and only testifies via deposition, in this situation, the WCJ must articulate an actual objective basis for rejecting the witness testimony.

In Wrecsics, the Employee appeared and testified before the WCJ.
In addition to the WCJ observations, this WCJ provided "reasons" for rejecting Employee's testimony.
These reasons are similar to those "gut feelings" that lead the experienced claims professional to question and deny an injury claim:

(1) Employee and his girlfriend did not go into the truck stop to contemporaneously report his slip and fall injury after it occurred,

(2) Employee testified he injured his right middle finger when he hit the ground and felt immediate swelling of his ankle, but waited 24 hours before seeking medical attention,

(3) medical records showed no physical exam findings of bruising of the back, no redness or abrasion of the finger and only mild tenderness and swelling of the ankle,

(4) Employee testimony was inconsistent, he testified regarding his intense pain, such that he had difficulty taking care of himself, yet he was able to climb into the truck cab, start the truck and move it, two weeks after these alleged injuries.

(5) Employee submitted to his employer an incorrect trip log, which he did not rebut.

The Commonwealth Court provided an apt summary, "Here, the WCJ did not disregard or ignore Claimant's testimony. Rather, the WCJ fully considered Claimant's testimony, summarized it, and ultimately rejected it on credibility grounds...". slip opinion at page 5.

The acceptance of an Employee history of injury by the Employer medical expert is not an admission or concession that the injury is work-related. Similarly, the Employee medical expert assumption of a work injury based solely upon the eomployee history, leading to a medical diagnosis, may be rejected where the WCJ rejects that underlying history. See: Sewell v. WCAB (City of Philadelphia) (Pa. Cmwlth. 2001). 

The general rule is that Employee has the burden of proving all of the elements to establish a compensable injury in a claim petition. The Employee must prove that his injury "arose in his employment and was related thereto". [ Inglis House v. WCAB (Reedy) (Pa. 1993)].
This Employee failed to meet his burden of proof by credible testimony.

Practice Pointers:

1. How does one assess the "good" cases versus the "bad" cases to accept or deny?
At the outset of an injury investigation, the workers compensation claims professional must secure statements from all witnesses and involved parties, as soon as possible after the injury report. Document the facts present. Document the "omissions", ie., those facts that are typically present, but which are absent in this case.

2. Question the credibility and logic of the alleged injury history. Is this history corroborated by any witness or any written record? Is this history consistent with how one would be expected to act? Does the employee version "make sense"?  Yes, at times the truth is stranger than fiction... but an unusual story bears further investigation.

Wednesday, May 15, 2013

Pension Credit Available in Pre-Act 57 Cases

In 1996 the Pennsylvania Workers Compensation Act was amended to allow a credit for pension benefits funded by Employers against workers compensation payable for wage loss. See: Section 204 (a). This amendment applied to injuries on and after June 24, 1996.

Prior to 1996, a Pension Credit was recognized for disability pension payments, under certain circumstances.

Today, as Workers Compensation Insurers and Employers review their "old" claims, this question often arises regarding the availability of a pension credit.

What are the circumstances allowing for assertion of a disability pension credit?

The case defining this disability pension credit remedy is Murhon v. WCAB (Kawecki Berylco, Inc.) 618 A.2d 1178, (Pa. Cmwlth. 1992).  Murhon interpreted and applied existing caselaw regarding the availability of credit to an employer. Generally this credit issue arose when an Employer contested work comp liability and another benefit plan was paid to employee during this timeframe. When Employer's work comp obligation was determined, the Employer was entitled to a credit for these payments, "made in relief of the employee's incapacity to labor". citing Creighton (Pa. Super. 1944).

In Murhon, the Commonwealth Court applied this general principle regarding credits, to the payment of a disability pension benefit.

The Pension Credit Rules:

1. The employer seeking credit must be the party responsible for work comp benefits.
2. The disability pension plan does not permit/require employee contributions.
3.The pension plan is not "limited", ie., benefits continue for the duration of the disability.
4. Employee is not depleting any benefit, to which he would otherwise be entitled.
5. If employee were to return to work at a future date, the pension would still be available to him for
    non-work related disability. Murhon, 618 A.2d at 1182.

The General Rules regarding Credits

Several early credit cases address the employer payment of sick leave, holiday pay, vacation pay or disability pensions. These General rules emerged:

An Employer IS ENTITLED to a credit against work comp obligations for payments made to an employee in relief of employee's inability to work, such as Sickness & Accident benefits.

An Employer IS NOT ENTITLED to a credit against work comp obligations for payments which are an accrued entitlement, which the employee has built up by the performance of services for employer, such as sick leave or vacation pay.

If Employee would be entitled to the pension regardless of whether he had suffered a compensible injury, the Employer is NOT entitled to a credit for those payments.

Appellate Case Decisions

In Bethlehem Steel Corporation v. WCAB (Gounaris) 714 A.2d 550 (Pa. Cmwlth. 1998) a disability pension credit was denied to the employer. This permanent incapacity pension was an accrued entitlement built up as a result of claimant's services for the employer, therefore there is no credit available to employer. Only payments made in relief of claimant's inability to labor, as a result of his work injury, are payments "in lieu of compensation", for which a credit is available.

In Oleksa v. WCAB (Keystone Coal Mining Corp.), 734 A.2d 79, (Pa. Cmwlth. 1999), the employer was granted a disability pension credit. Employee did not contribute to the plan. These benefits were only available as he suffered a work-related injury. These benefits would be available (not exhausted) if he returned to work and suffered another work-related disability. On this basis, these disability pension benefits were considered payments in lieu of compensation, such that Employer was entitled to a credit against its work comp obligations.

In City of Philadelphia v. WCAB (Grevy) 968 A.2d 830 (Pa. CMwlth. 2009), a pension credit was allowed to employer for a service-connected disability pension paid to employee, but only to the extent ((73.149%) funded by the employer.

NOTE: In Murhon and Oleksa a disability pension credit was granted, even though the applicable collective bargaining agreement did not provide for any offset or credit for disability benefits.


1. REVIEW open work comp cases for Disability Pension status (as well as retirement pension status).
2. MEET with the Employer representatives and discuss the disability pension plan language.
3. FILE a Petition for Review and/or Modification to assert a disability pension credit.

QUERY: Can you use the LIBC 761 form "Notice of Workers' Compensation Benefit Offset" to assert your disability pension credit ?

LIBC 761 specifically references pension benefits and work comp benefits payable for injuries occurring after June 24, 1996.

The assertion of a credit for disability pension benefits may reduce the future workers' compensation benefit liability. A reduced benefit rate may place the estimated future benefit liability in a range of attractive settlement figures.  The Employer and Insurer may consider their options, including discussions of a negotiated settlement and file closure.

Thursday, May 9, 2013

Difficulty staying Awake? = "Unavailable" Job (really... no kidding!)

Modified Duty Job Offers are the best strategy to reduce workers' compensation liability for injured employees with work-related medical restrictions. It is well-established that the job offered must be within the physical and vocational capabilities of the worker.
EMPLOYER BEWARE! The job must also keep the worker AWAKE!

This is the type of case that keeps risk managers awake at night. (pun intended)

Channellock Inc. v. WCAB (Reynolds), No. 2027 C.D. 2011 an unreported memorandum opinion of a panel of the Commonwealth Court authored by Judge McGinley on May 8, 2013, reviews the long-suffering attempts of an employer to document a position available to an injured employee.
See also: Channellock Inc. v. WCAB (Reynolds) 965 A.2d 1239 (Pa. Cmwlth. 2008).

Factual & Procedural Background
This case has a rather long history as the original injury about 12 years ago.

It is somewhat of a long story, but it bears repeating, to explain how the parties arrived in their respective status in 2013.

In July 2001, Employee slipped, fell, and struck his low back. He underwent surgery for a herniated disc at L5-S1. In May 2002 Employee returned to work in a modified duty position. When that part of the plant closed, employee was assigned a "no duty" job, where he sat, read, did crossword puzzles, but was not allowed to talk to other co-workers.

In December 2003 Employee fell asleep at work. Employer disciplined employee. Employee requested a move to a position that would keep him more mentally alert. Employer complied and assigned him to a position where he cleaned pliers. He believed these duties exceeded his physician recommendations, but he performed these duties until March 2004 when his doctor removed him from work.

September 2005 IME supported a Termination Petition.
Employee filed a Reinstatement petition for Total disability as of March 2004.

Employee testified his pain medications make him drowsy.
Yet, He occasionally helped his wife in her day care business(?).
Surveillance evidence showed "various out-of-work activities".
WCJ decision granted Reinstatement of total disability and denied the Termination request.

WCJ found Employee was not able to perform the job offered, as Employer testimony stated the "no duty" job required employee to remain awake. If sleeping, employee was subject to discipline, including termination. Employee testified his medications cause him to be drowsy accordingly, he was unable to meet the employer's specific job requirements.
Query: Is staying awake a requirement of EVERY job with every employer?

Commonwealth Court 2008 decision affirmed.
WCJ found employee medical evidence to be credible.
"No work" job was not within employee's physical capabilities, as a medically approved position. 965 A.2d at 1242.

Channellock Part II
Termination Petition II

March 2008 Employee Return to "No Duty" position, Part II.

Employee testified he sat in a chair in the cafeteria.
Employee sat in a loveseat in the HR office.
Employee testified this no duty job was "Emotionally and physically too much for me to continually do every day ...".
Employee medical expert stated there was a relationship between employee pain and depression.
Employee could not return to his time-of-injury job due to difficulty walking and finding a comfortable position.
Medical expert provided an "off-work slip" because employee was in "mental anguish by having to go in and perform an oxymoronic job of a no-duty job". (say what?)

Employee performed a job in March to May of 2008, where he picked up a pair of pliers, placed the pliers in an envelope together with literature for prospective customers. Employee said this job was too much for him and he requested that he be placed in the no-duty job!

Employee was told that if he fell asleep on the job he was subject to the Employer progressive discipline policy.

Employer Medical expert opined Employee had no objective abnormalities on exam to substantiate his pain complaints or a need for narcotic medication. He was capable of light duty work. There was no reason he could not return to his regular work (?) He was at MMI. He was fully recovered (an opinion not expressed in his medical report).

 WCJ Decision II
Termination petition was denied.
Suspension amended to Modification Petition was granted.
Employee Reinstatement/Modification petition was denied.
Penalty petition was granted.
Employer medical expert was not credible regarding full recovery or work capacity.

Employee WAS capable of the "no-duty" job!
Employer was willing to accommodate employee's need to rest.
The work activities were no different than his at-home activities.
Employee medical expert was not credible that employee cannot do the job as it is "moronic", he did not provide a medical reason.

WCAB Reversal of Modification Order
Employee could still be fired for sleeping on the no-duty job, even with a revised progressive discipline plan (ie,not immediate firing).

2008 Commonwealth Court decision still applied:
Employee got drowsy from pain meds.
Employee could be fired for sleeping.
Job was not "available" to him.

Collateral Estoppel effect of prior decision prevented re-litigation of these issues.
Even though it was a different time frame?
A different Medical exam?
A different job offer?
A different disciplinary policy?
Usually there needs to be an identity of parties, of subject matter and of issues for Collateral Estoppel to apply.

Commonwealth Court 2013
No. The "issue"in the original litigation was whether the no-duty job was available to Employee because Employer required him to remain awake while at his post ..." slip opinion page 15.
The issues in each litigation were the same.

[The Court also discussed the lack of evidence in support of a Termination order, in support of a Suspension or in defense to the penalty petition.]

Practice Pointers:
1. Allow your employees to sleep on the job. No! This is a frustrating case, to say the least, but you must present sufficient evidence, as this Employer did, to establish the worker's out-of-work activities in an attempt to "win" the credibility battle before the WCJ.

2. The odd twist in this case was that employee asked to be placed back to the no-duty position in 2008! He knew what the conditions were. Was this an intentional act to control the employment situation? In any event, make job offers consistent with the medical examinations. If possible, try to accommodate the employee's physician recommendations.

3. I believe this case demonstrates a lack of common sense. The best efforts of an Employer in documentation of available work and reasonable work requirements (no sleeping!) may be defeated by assignment of credibility to an individual who can perform a variety of at-home activities, yet alleges an inability to perform light duty or no-duty work tasks, in the absence of objective physical findings!
Another medical mystery...

4. Plan: Do not "give up".
Document those available work positions.
Make return-to-work offers.
Litigate the unreasonable refusals to return to work.

Tuesday, May 7, 2013

Inconsequential Injuries nearly Defeat Termination Request

Employer's burden of proof in a Petition for Termination of workers' compensation benefits is well known ... The Burden of Proof is on the employer to establish that claimant has fully recovered from his/her work injury OR that any remaining disability is no longer the result of the work injury.

Over the past few years, it seems there are more Employee petitions to Review the Description of Injury, filed concurrent with the Employer Termination Petition. This may be a matter of litigation strategy, or it may be a consequence of the lack of Review of the description of injury.  Often the injury description has not been altered since the time of issue of the original compensation documents.

In represention of Employers and Insurers, one recurring theme is proof of whether the Employer medical evidence has established that Employee has fully recovered from ALL disabling medical conditions, arising from the work injury.

Graham v. WCAB (Wordsworth Academy), No 1755 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on May 3, 20013 recently reviewed this issue.

Factual & Procedural Background

Employee tripped and fell, striking her head, in the course of her work duties as a training administrator for Employer. A Notice of Compensation Payable was issued. Her injuries were described as contusions to her face, scalp and neck. She alleged further symptoms of extreme fatigue, headaches, "dazes", impaired reading and math skills and memory issues.

She filed a Petition to Review the description of injury to include "brain injury and concussion".

Employer filed a Petition for Termination, alleging a full recovery based upon Medical Examination.

Employee medical evidence, Drs. Pelensky (internal medicine & physical medicine and rehabilitation) and Hopwood (a neuropsychologist) opined she was disabled from post-concussive syndrome with ongoing cognitive deficits and persistent headache.

Employer medical evidence, Dr King (licensed psychologist) opined she was fully recovered based upon: (1) the history of worsening symptoms was not consistent with post-concussive syndrome, (2) there was no objective evidence of memory impairment, (3) mental status evaluation was normal, (4) CT scan and MRI of the head were normal.

WCJ decision: Denied Employee Review to expand the description of injury ( a reinstatement petition was also denied). Employer Termination Petition was granted in part and DENIED in part.

The WCJ found Employee fully recovered from any concussion symptoms BUT the Employer did not prove she fully recovered from the face, neck and scalp CONTUSIONS !
[note the WCJ decision was 22 months after the date of injury]

WCAB decision modified the result in the Employee Review petition. The WCJ assigned credibility to the medical evidence that employee did suffer a mild concussion, but that she fully recovered from that condition.
Denial of Employer Termination was REVERSED.
Employee medical expert diagnosis did not include any contusions.
Employee agreed at the WCJ hearing that she did not have any cuts, scrapes or bruises and no scarring from the work injury.

Commonwealth Court decision AFFIRMED the denial of Employee Reinstatement and AFFIRMED the reversal and grant of the Termination Petition.

The WCAB correctly relied upon the prior Commonwealth Court decision in Jackson v. WCAB (Resources for Human Development) 877 A.2d 498 (Pa. Cmwlth. 2005).
Jackson involved an employer termination petition, where the injuries included back, knee and arm injuries including a bruised elbow. The employer medical witness never mentioned the arms. BUT the employee medical witness stated he did not find any arm injury. Employee testified her complaints were at the back, hip and knee. This evidence was sufficient to support the Termination.

In Graham, she testified she had no cuts, bruises or scrapes and no scarring on her face. Her medical witness did not describe any contusions. The WCAB did not err in concluding that evidence supported the legal conclusion that the work related contusions had resolved and employee was "fully recovered". This is a "common-sense" sort of conclusion, as any contusion would have resolved over the course of time, preceding the termination petition litigation.

Practice Pointers:

1. This decision and discussion highlight the necessity of "matching" the medical evidence to the work injury. At times, the initial description of the work injury is no longer accurate. (think lumbar sprain/strain followed by an MRI of herniated disc). The Compensation Agreement may remain un-amended ... but for all practical purposes the description of injury has changed. The Medical Expert should review all of the medical records and discuss each diagnosis of the treating physicians.

2. Consider amendment of the description of injury in the compensation documents, so there is no "unanticipated" debate or argument that the IME medical evidence does not "match" the work injury and cannot support an order of Termination.

3. Provide your medical expert with all medical records of treatment, consultation reports and diagnostic test results. This may involve additional time and/or expense... but this preparation will increase your prospects for a successful litigation result.

Friday, May 3, 2013

MMI and the Impairment Rating Evaluation

The Pennsylvania Workers' Compensation Act was amended in 1996 to provide Employers & Insurers with an additional remedy to change the status of the injured Employee, receiving total (lifetime) disability benefits.

An Impairment Rating Evaluation (IRE) could be requested after the payment of 104 weeks of total disability benefits. A designated medical expert would utilize the American Medical Association "Guides to the Evaluation of Permanent Impairment" to determine an impairment rating for the injured employee.

If the impairment rating was less than 50% the employee was considered "partially disabled" and only entitled to indemnity wage loss benefits for a duration of 500 weeks.

One issue, a recent topic of discussion, was whether the employee must be determined to be at Maximum Medical Improvement, MMI, before an impairment rating evaluation can be scheduled.

Question: How do you determine the employee is at MMI?

Answer: The IRE physician must determine if employee is at MMI before conducting the examination.
There is no need for a separate "pre-IRE" medical exam.

Stocklin v. WCAB (DollarLand Inc.), No. 932 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on April 18, 2013, discussed this issue, in addition to several other IRE topics.

Factual & Procedural Background

Stocklin sustained a work related neck injury.
She later filed a petition for Review of the description of injury, to include:  a "specific loss of use" of her right hand, cervical scar, carpal tunnel of the left hand, low back pain with radiculopathy and psychological injury.
The WCJ granted the Review petition, but not including the psychological injury.

Employee was designated to attend an IRE. The IRE resulted in an impairment of 19%. The Employer filed a Petition for Modification of total disability to partial disability.
The WCJ granted this Modification petition.

Employee Appeal

Employee advanced several arguments, which were rejected by the Commonwealth Court.

1. There were discrepancies in the medical records reviewed by the IRE physician.
2. The IRE physician did not have all of her records.
3. The IRE physician failed to consider the prior WCJ finding of loss of use.
4. The IRE physician failed to consider her pain from her work-related injuries.
5. There was no valid determination that she reached MMI prior to completing the IRE.

The Combine v. WCAB (National Fuel Gas Distribution Corp.) (Pa. Cmwlth. 2008) decision held that "the physician conducting the IRE must first determine that the claimant has reached MMI".
 954 A.2d at 781.

MMI refers to a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change. AMA Guides Sixth Edition page 26.

Practice Pointers:

1. Schedule an IRE in EVERY case after the payment of 104 weeks of Total Disability Benefits.

2. Schedule a Vocational Expert Interview to Modify the benefit RATE of the injured employee.

Wednesday, May 1, 2013

The "Obvious" Causal Relationship Exception

A substantial percentage of workers' compensation cases involve conflicting medical expert opinions regarding the occurrence of a work injury, the extent of any disability and its causal relationship to work. The Workers' Compensation Judge is empowered to assess the credibility of the witnesses and accept or reject the testimony of any witness, in whole or in part.

In a Claim Petition, the injured worker must prove his case through competent and credible evidence.

Infrequently, one may hear an argument that the connection of an injury to work, is "obvious", such that medical expert evidence is not required to prove the claim.

Rice v. WCAB (Klapec Express Inc.) No. 1652 C.D. 2012 an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Senior Judge Colins on April 18, 2013, discussed this medical causation issue.

Factual Background

On July 21, 2009 Employee alleged a lower lumbar sprain and strain injury in the course of removing a tarp and covering a load of lumber, in Tennessee, in the course of his duties as a truck driver.

On July 23, 2009, Employee was terminated from his employment, BUT he was not informed until he returned to the Employer terminal and parked his truck on July 28, 2009.

He was terminated for unsatisfactory job performance, under the Employer's "three strikes" policy.
The termination reasons were unrelated to any injury report.

On July 28, 2009, seven (7) days later,  the alleged work injury was first reported to Employer.

Employee sought medical treatment for the lumber sprain and strain and was diagnosed with a separate spinal cord condition - "transverse myelitis and fibrocartilaginous embolism".

The WCJ wrote a 37 page decision.
1. Employee met his burden of proof to establish a work related lumbar strain and sprain injury.
2. He fully recovered from that condition on November 5, 2009 .
3. He did not prove a relationship between the work incident and the myelitis/embolism condition.
4. The WCJ rejected the opinion of Employer Neurosurgical expert Michael Y. Oh, M.D., that
     Employee did not sustain a lumber sprain/strain injury at work.

WCAB reversed the conclusion that Employee proved a work related lumber sprain/strain injury.
              Affirmed the lack of a work related cause of the myelitis/embolism condition.

Employee failed to adduce any unequivocal medical evidence causally relating the lumber strain/sprain condition to the alleged work incident.
Jon B. Tucker, M.D., Employer IME expert, stated Employee "may have" had a work-related back strain, but the spinal condition was not related.

Commonwealth Court Reversed.

Employee argued the WCAB erred as the causal relationship between the Employee's back strain and the work incident was obvious.
Employee produced 2 medical expert witnesses.
Employee conceded that neither medical expert rendered an opinion establishing a causal relationship between the tarp incident and a back strain.

The Court agreed with Employee argument that the causal connection between the work incident and lumber strain/sprain injury was obvious, such that no medical expert opinion evidence was necessary.

Commonwealth Court Reasoning
Here the Employee was found credible by the WCJ regarding the occurrence of the tarp incident while at work. In prior appellate cases, where there were more complex injuries, unequivocal medical proof was required. [ back sprain/strain and alleged disc injury See: Pryor v. WCAB (Colin Service Systems); Marks v. WCAB (Dana Corp.); City of Philadelphia v. WCAB (Smith).]

"... we find the Board erred by overturning the WCJ's findings and his holding that the documented (sic, where?) back strain was obviously connected to the physically rigorous chore that was credibly described by claimant". slip opinion page 8.

Query, is this rigorous chore one performed by Employee, perhaps on a daily/weekly basis without any obvious injury? Why was it so obvious on this occasion to cause an injury?

This syllogistic reasoning is unconvincing.

Practice Pointers:

1. BEWARE of the obvious causal relationship of injury to the work activity. This injury was so obvious, that Employee presented 2 medical experts... even though he did not need to present any medical evidence. Remember, this is an alternative argument available to the employee.

2. Prepare your Examining Medical Expert regarding all of the available factual defenses. At the time of the IME appointment, was there any medical evidence of a lumber sprain/strain injury from July 2009? That is the opinion you present in support of your defense. Do not have your medical expert speculate on what may have been employee's condition, several months earlier.

3. Was there any available argument or evidence to mitigate the "sympathy" factor, where employee is diagnosed with a significant non-occupational medical condition? Where there any other benefits available to employee? Social Security?