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.

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