Wednesday, June 26, 2013

One Work Injury, Two States, Two Insurers ... who pays?

Jurisdiction and Benefit Responsibility.
Employees may be assigned by their Employers to travel and work in another state.
Employees may reside in one state and commute cross state lines, to pursue their occupation.
At times, a question arises as to which state jurisdiction work comp law applies.
The Pennsylvania Workers' Compensation Act is clear, it applies to ALL injuries occurring within the Commonwealth. WCA Section 101; 77 P.S. 1.

The PA Act may extend to injuries occurring outside the Commonwealth, if one of 4 specific conditions are met. WCA 305.2; 77 P.S. 411.2.

...But what happens when one insurer pays work comp benefits to an injured worker ... and later determines another insurer is responsible... what are the remedies available?

Liberty Mutual Insurance Company and Charles Pike Construction Company, Inc. (Petitioners)
v. The Commonwealth of Pennsylvania, Department of Labor & Industry and Pennsylvania State Workers' Insurance Fund and Julia K. Hearthway, Secretary of Labor & Industry, (Respondents)
 No. 660 M.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania authored by President Judge Pellegrini on June 18, 2013, addressed this type of situation.

Factual & Procedural Background

Procedurally this case was heard regarding the preliminary objections of Respondents (Commonwealth, etc.).
Petitioners (Liberty Mutual) filed a Petition for Review with the Commonwealth Court, (1) in the Nature of a Complaint in Equity and (2) Suit for Declaratory and (3) Injunctive Relief.

What does all of this legalese mean? 

Employee worked for Employer at a construction site in New Jersey.
Employee was seriously injured.
Liberty Mutual insured Employer for NJ work comp.
State Workers' Insurance Fund (SWIF) insured Employer for PA work comp.
Employer reported the injury to Liberty.
Liberty commenced payments of $300k+ medical and indemnity benefits.

Employee files a PA claim petition!
Liberty asks SWIF to assume jurisdiction and responsibility for payments to Employee for an injury arising from Employer's PA business operations.

SWIF and Employer enter into a stipulation (Liberty was not a party).
WCJ approves the stipulation whereby SWIF admits liability for the work injury and SWIF is "credited" with Liberty's payment of medical and indemnity benefits.

Liberty files a Petition to Review with the Bureau, seeking reimbursement from SWIF for the benefits paid by Liberty. (for which SWIF received a credit against their liability).

The WCJ denied reimbursement, ruling that she did not have jurisdiction to order SWIF to reimburse Liberty for payments made under NJ WC laws.

Liberty did not appeal the WCJ decision.
Liberty sent 3 separate demand letters to SWIF for reimbursement.
Liberty received no response.
Liberty filed this Petition for Review to the Commonwealth Court, invoking the original jurisdiction of this court.

Commonwealth Court Decision

i.   Liberty's Petition for Review in the Nature of a (1) Complaint in Equity was not dismissed.

ii.  The (2) Suit for Declaratory Judgement and (3) Injunctive Relief [ and request for counsel fees] were dismissed.

iii.  Respondents remaining Preliminary Objections were overruled.

iv.  Respondents were directed to file an answer to the remaining unjust enrichment claim.

Commonwealth Court Reasoning

Rejected Respondents argument [in their Preliminary Objections] that the Board of Claims has jurisdiction of this matter under Section 1724 of the Commonwealth Procurement Code.

Rejected Respondents argument that the Commonwealth Court lacked jurisdiction as Liberty did not exhaust their administrative remedies. The Commonwealth Court has jurisdiction, as the WCJ correctly ruled she did not have jurisdiction, such that their was no adequate administrative remedy available to Liberty. Liberty could properly raise this unjust enrichment claim.

Rejected Respondent's argument that Section 305.2 of the PA WCA would not support Liberty's claim for reimbursement. [ Section 305.2 deals with coordinating benefits paid under another states work comp laws].

Rejected Liberty's argument that the Section 319 subrogation provision of the PA Workers' Compensation Act allows reimbursement. This would only apply to payments made under a non-workers' compensation program. It does not apply to work comp benefits paid under mistake of fact.

Accepted Petitioner's unjust enrichment claim setting forth the legal and factual basis to establish that Liberty paid obligations that were those of SWIF.

Practice Pointers:

It is difficult to determine how the injury was investigated and how benefits were initially paid, as this appellate opinion, addressing a procedural issue, does not contain many of the facts of the underlying claim and its investigation.

Assume Employee was a NJ resident at the time of the work injury.

Employee would be entitled to NJ workers' compensation benefits under the "extra-territorial" provisions of that state's law.

BUT, as the injury occurred in PA, the workers' compensation statute of PA would also apply.

We have witnessed the situation where an  Employee files a NJ workers' compensation claim and receives benefits... and when those benefits may be limited in duration or amount... they file a PA claim. The employer and insurer cannot avoid this scenario as both PA and NJ laws may apply.

When confronted with this dilemna, one must attempt to coordinate these "reimbursement" efforts and tackle the underlying claim.

Monday, June 24, 2013

...and now... Evaluating Employer Medical Evidence for Termination

An Employer challenge to the "competency" of medical evidence on behalf of Employee in a Petition to Review the Notice of Compensation Payable to expand work comp liability for an accepted work injury, was the subject in a recent post (June 20, 2013). That employee was successful in enlarging the description of a work-related knee injury to include psychological diagnoses arising from chronic pain symptoms.

What's good for the goose...
Now We have an Employee challenge to the "competency" of the
Employer medical evidence in a Claim/Termination petitions litigation.

Cadena v. WCAB (Acme Markets Inc./SuperValu), No. 1211 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania authored by Judge Leadbetter on June 20, 2013 discussed these medical evidence issues.

Factual & Procedural Background

Employee sustained a low back injury in August 2008.
Employer issued a "Medical Only" NCP, describing a strain to the lumbar spine.
Employee sustained a 2nd low back injury in September 2008.
Employer issued a 2nd "Medical Only" NCP, describing a sprain/strain to the lumber spine.
Employee worked in a modified duty capacity after each injury.

Employee filed a Modification petition alleging his condition had worsened and he now experienced a loss of earnings as of July 2009.
Employee also filed 2 claim petitions.
Employer filed a Termination petition, alleging a full recovery as of January 2010.

Employee medical expert, Amir Katz M.D. opined employee sustained a herniated disc at L4-5 with bilateral lower extremity radiculopathy and remained disabled

Employer medical expert, Philip Perkins M.D., an initial treating physician, opined employee could return-to-work with light duty restrictions as of his last exam in July 2009.

Employer medical expert, Robert Mauthe, M.D. performed an IME and opined employee had fully recovered from the "lumber strain" as of January 2010 and could return-to-work without limitation.
Dr. Mauthe also opined employee was capable of modified duty in May 2009.

Employer safety manager testified regarding August 2009 offers for employee to return-to-work in accord with Dr. Perkins (modified duty) or Dr. Mauthe (full duty).

WCJ Decision:
Rejected Employee medical expert regarding the extent of each work injury,
Rejected Employee evidence that he was unable to perform available modified work in August 2009.
Credited Employer medical expert testimony that injury was limited to lumbar strain,
Credited Employer medical expert that employee had fully recovered as of January 2010 exam, from the August injury,

Rejected employee assertion he had a compensible wage loss, as he worked modified duty and that work remained available to him.

The Claim petitions were granted and wage loss benefits were "suspended" as of each date of injury.
Employee Modification petition was denied.

Employer Termination petition was granted as to August injury BUT denied as to September injury.

Employee and Employer appealed.

Employee pro se appeal did not preserve several issues later argued by his "new" legal counsel.
Counsel filed an amended appeal. WCAB limited its review to the issues raised in the pro se appeal.

Employee argued the WCJ erred:

1.   in accepting Dr Mauthe's description of "lumbar strain",
2.   in accepting Dr Mauthe's opinion he fully recovered from the August injury,
3.   he argued, diagnostic studies, including lumber MRI's, EMG/NCV studies and lumber discogram, document a herniated disc at L4-5 with radiculopathy,
4.   Dr Mauthe was not competent to suggest employee was exaggerating his symptoms as he lacks specialized training to make that assessment,
5.   Dr Mauthe was equivocal as he initially stated employee suffered from a disc syndrome, not a lumber strain and later revised his opinion,
6.  Dr Mauthe was not competent as he did not review the films from the July 2009 lumber MRI.

Commonwealth Court rejected Employee's arguments.

A. The WCJ is the ultimate fact finder and questions of credibility and weight assigned to the evidence are for the WCJ. "The WCJ may accept the testimony of any witness, in whole or in part", citing
Jenkins v. WCAB (Woodville State Hospital) (Pa. Cmwlth. 1996).

B. The WCJ acceptance of one medical opinion over that of another medical opinion is not the basis for a finding of reversible error. Jenkins.

C. Dr. Mauthe testified unequivocally that employee had fully recovered.

D. Dr. Mauthe's review and consideration of diagnostic test results goes to the weight and credibility of his opinions, not to his competency as a witness.

E. Dr. Mauthe initially diagnosed a disc syndrome, BUT he changed his opinion when the discogram did not confirm a disc as the source of employee's complaints.

F. Dr. Mauthe explained the positive EMG/NCV results were not corroborated by his physical exam findings OR by the MRI's and Discogram results.

G. Regarding Employee argument that Dr. Mauthe did not have specialized training or qualifications to opine whether he demonstrated signs of symptom magnification, the Court noted Dr. Mauthe is a Board-Certified in the specialty of Physical Medicine and Rehabilitation, and he provides patients non-surgical treatment of pain. He is responsible for the diagnosis and treatment of injuries.  Employee waived this issue as it was not preserved in his initial appeal.

However, the Court noted that employee has not identified any legal or medical authority which states that a board-certified specialist is not competent to render an opinion regarding signs of symptom magnification. "Indeed, this skill seems intrinsically related to the proper diagnosis and treatment of a disorder". slip opinion at page 8.

Practice Pointers:
i. This opinion demonstrates the necessity to have a medical expert who is familiar with the treatment and diagnosis of work injuries.
ii. This opinion also demonstrates the necessity of retaining legal counsel to properly draft an appeal and preserve all relevant issues.
iii. The significance of IME expert review of all medical diagnostic test results is demonstrated. The medical expert can support their opinions, based upon physical examination, with test results that corroborate their "theory" of the case.
iv. Get a complete medical record of all diagnostic test results for review by your IME expert. If requested by your expert, get the actual films, in addition to type-written reports.

Thursday, June 20, 2013

Evaluating Employee's Medical Evidence

Some factors to consider in evaluating the strength of Employee Medical Evidence.

In workers' compensation claims, one must evaluate the strength of the medical evidence offered by Employee. This assessment arises at several points in the history of a work-related disability claim.
At the outset, one must assess the availability of medical evidence in support of the Employee's burden to establish all of the elements of a compensible claim, including causation and disability.

At subsequent points in the claim history, one may assess the strentgh of evidence regarding the extent and/or duration of disablity. In the "Review" petition litigation, one must assess the medical evidence offered to "enlarge" the scope of workers' compensation liability for aditional medical conditions, alleged to arise from the original work injury.

In Institute for Cancer Research v. WCAB (McDermott), No. 1878 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on June 18, 2013, several of these medical evidence issues were addressed.

Factual & Procedural Background

Employee sustained a work related knee injury in the course of his duties as a housekeeper, in march 2007. Employer issued a NCP which described the injury as "left knee sprain".
Employee filed a Petition to Review the description of injury, to include subsequent medical diagnoses of psychological injuries, described as an adjustment disorder with an anxious and depressed mood, together with a chronic pain syndrome.

Employee testified he did not return to work after his initial injury. He underwent six (6) surgeries, including a total knee replacement procedure. The last surgery was to correct nerve damage at the bottom of his foot. Despite this treatment he continued to have severe pain. He sought the care of a psychologist for the dramatic effects upon his life. His physician diagnosed chronic regional pain syndrome (CRPS)[ the "new" diagnosis used instead of reflex sympathetic disthropy (RSD).]

The WCJ decision found Employee and his medical witness credible and amended the NCP to include the psychological diagnoses.

Employer appealed and the WCAB affirmed the WCJ decision.

Commonwealth Court affrmed the grant of the Review petition.

Employer argued:

1.   The Employee medical expert, a psychologist was not legally competant to render a medical diagnosis of chronic pain,

2.   The WCJ decision was not based upon substantial competant evidence as Employee medical expert had an inadequate medical history and did not review any records of the Employee's treating physicians,

3.   Employee medical expert testimony was inadmissible as there was an agreement with Employee counsel that the witness would recover 80% of his healthcare provider bills only if employee prevailed in the litigation.

Commonwealth Court Decision and Reasoning:

1.   Employee medical expert, a psychologist was legally competant to testify that employee suffers from a chronic pain syndrome and that this condition was a direct result of the work injury.
Past appellate decisions have allowed a licensed clinical psychologist to render an opinion regarding a psychological injury similiar to Employee's; that is, a "psycho-physiologic" reaction caused by organic musculoskeletal-type pain. citing Serrano v. WCAB (Chain Bike Corp.) 553 A.2d 1025 (Pa. Cmwlth. 1989).

In Serrano the worker sustained internal injuries to his chest and abdominal region when he was compressed between two machines. After surgery for the physical orthopedic problems, he continued to have severe pain and developed psychological symptoms. These sypmtoms were diagnosed as a chronic post-traumatic stress disorder with acute depression and also a psycho-physiologic reaction resulting from organic musculoskeletal-type pain. His clinical psychologist testified these conditions were the direct result of the work injury. On appeal, this testimony was deemed legally competant.

2.   Employee medical expert was legally competant to provide an opinion of disability and causation, even though he did not have a complete medical history of Employee and did not review any medical records of the treating physicians.
Past appellate decision have held medical expert testimony is not legally competant where the opinions are based upon inaccurate or false information.
see: Newcomer v. WCAB (Ward Trucking Corp.) 692 A.2d 1062 (Pa. 1997).

Where the medical expert does not review all of the medical records, that fact goes to the weight to be given to the witness testimony by the judge, that is the level of credibility of the testimony, not the legal competancy of the testimony. Here there was a question as to the extent and accuracy of the employee history of treatment for anxiety prior to the wotk injury, that was available to this medical expert..

3.   Employee medical expert was legally competant to testify despite an agreement with Employee legal counsel that counsel would pursue a claim for payment of the provider's medical bills in connection with the review petition and counsel would have a 20% contingent fee agreement of this amount. A term of this agreement was that the witness was not requesting employee pay any fees for treatment. [the medical bills were denied as unrelated to the work injury].

Commonwealth Court distinguished this agreement regarding recovery of the charges for medical provider treatments from the situation where the expert fee compensation to a witness is contingent upon the outcome of the case. This agreement did not render the expert testimony inadmissible, but the WCJ could use this as a factor in assessing the credibility of the witness, as the witness would have a financial incentive in the outcome of the case.

Practice Pointers:

1.   On appeal, the review of the medical evidence in support of the WCJ decision, must be challenged on the basis of its "competancy" as the WCJ has the right to accept or reject the testimony of any witness, in whole or in part, including medical witnesses. That is, the WCJ is the arbitor of credibility issues and the weight to be assigned to any witness testimony.

2. In litigation before the WCJ, the employer must assert the above "shortcomings" in employee's medical evidence. A determination of credibility is difficult (impossible) to revise on appeal. Make your best argument before the WCJ.

Tuesday, June 18, 2013

"Mental-Mental" Injury & Employee's Burden of Proof

Work Related Mental Injury & the Employee's Burden of Proof
An Employee may receive workers' compensation benefits in Pennsylvania for disability arising from a work-related mental injury. The Employee burden of proof to establish all of the elements of a compensible claim varies somewhat, depending upon the stimulus for the onset of disability.

"Mental-Mental". Where the stimulus for the work injury and disability is "mental" and there is no a physical act, then the Employee must establish that "abnormal work conditions" caused the mental injury. Example: Anxiety and/or Depression.

"Physical-Mental". When the stimulus for the work injury and disability is physical, the Employee must establish the physical stimuli resulted in the disability. It is not necessary to demonstrate that the physical injury was disabling. Example: Post Traumatic Stress Disorder.

"Mental-Physical". Mental or psychological stress that results in purely physical injury does not require a demonstration of abnormal work conditions. Example: Cardiac symptoms such as Angina.

Bush v. WCAB (Commonwealth of Pa., Liquor Control Board), No. 2311 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on June 12, 2013, addressed the "mental-mental" burden of proof issue.

Factual and Procedural Background
[ The individual facts are important in this type of claim]

Employee was hired as a liquor store clerk in December 2007.
In March 2009 two masked robbers held up the store where Employee worked.
One told Employee to open the cash register. The other pointed a gun in front of him.
He pressed the panic button and called 911 after they left.
He did not sustain any physical injury.
He started to have a panic attack.
He began shaking and could not write a police report for about 30 minutes.
He went home. He had a feeling of being smothered. He awoke repeatedly and was nauseous.

He treated with the panel MD. He was advised to continue to take zoloft and was prescribed xanax. He was referred to a psychologist and psychiatrist. Panel MD report stated employee could not return to work due to anxiety and post-traumatic stress disorder.

Employer issued a Notice of Compensation Denial, asserting employee did not suffer a work-related injury.
Employee filed a claim petition alleging total disability.
His testimony reflected he suffered from social anxiety for years. He sought medical treatment after family deaths, and a car accident resulting in a fatality. He continued to take zoloft but had no panic attacks, anxiety or depression since mid-2005.
Employee testified and described symptoms of anger, panic attacks, flashbacks and depression.
Social aspects of his life were curtailed.

Employer evidence reflected that when employee was hired, he received training including robbery procedures. There were two videos and training discussions regarding robbery procedures. These policies were also discussed in the employee handbook. Employer witnesses included: his training manager; a trainer with 23 years employment; his manager with 21 years of employment. They described the training provided to employee regarding robbery.

Employee medical witness diagnosed PTSD as a result of the work-related robbery. He was unable to return-to-work. His prior condition did not play a role.
Employer medical witness diagnosed PTSD but stated employee could return-to-work, with limited public contact.

WCJ awarded total disability. He found the robbery was an abnormal working condition.

WCAB reversed, citing prior similar case precedents. "Robberies in liquor stores occurred on a frequent enough basis that [employer] incorporated information about what to do if one occurred into its training programs". Accordingly this incident was not an abnormal working condition.

Commonwealth Court agreed with the reversal of the award. Employee has the burden of proof to establish he was exposed to abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions. [citing: Martin v. Ketchum (Pa. 1990).

"In the present controversy, the Board determined the WCJ erred when she determined the robbery was an abnormal working condition. The Board relied on McLaurin v. WCAB (SEPTA) 980 A.2d 186 (Pa. Cmwlth. 2009), which held that if the employer provided training to its employees on how to handle a specific working condition, that working condition was foreseeable and could have been anticipated." slip opinion page 13.

Practice Pointers:
1. In this situation, the employer can "make a difference" in its work comp liability by providing and documenting the training provided to their employees.
2. The amount of detail in the summary of testimony leads me to conclude that this amount of documentation was persuasive. Present your best case! Present those witnesses.
3. These cases are highly fact sensitive. Yet whether the worker has been exposed to abnormal working conditions is a question of law, that is fully reviewable on appeal.

Thursday, June 13, 2013

"Medical Only" NCP and Extent of Medical Expense Liability

"Medical Only" Work Injury Claims.
A work injury which requires medical care, but does not result in work absence and wage loss, can be documented as a "Medical Only" claim via the filing of a LIBC-495 form, the Notice of Compensation Payable. Since 2004 this LIBC form was revised to include a "check-box" to designate the work injury was a "Medical Only" claim.

As an alternative procedure, a "Medical Only" injury claim can be documented via the filing of a LIBC- 496 form, the Notice of Workers Compensation Denial. See: Armstrong v. WCAB Haines & Kibblehouse, Inc. (Pa. Cmwlth 2007), where a Denial was filed after a Notice of Temporary Compensation was revoked.

What is the extent of Employer responsibility and liability for payment of medical expenses after the filing of the "Medical Only" document?

In Kussie v. WCAB (Yoder Brothers, Inc.) v. No. 1700 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court, authored by Judge Leadbetter on June 11, 2013, reviewed this issue for an unrepresented Claimant.

The General Rules regarding medical expense liability.

l. The Employer is responsible for medical treatments which are reasonable and necessary as a result of the work injury.

ll. Where an injured employee receives medical treatment for new symptoms that allegedly arise from the work injury and the Employer refuses to pay those medical expenses, the burden of proof to establish the work-related symptoms and medical treatments are related, depends on whether the connection between them is "obvious".

lll. An "obvious" causal connection is one involving a "nexus that is so clear that an untrained layperson would not have a problem" in concluding the new symptoms are related to the work injury.
See: Tobias v. WCAB (Nature's Way Nursery, Inc.) (Pa. Cmwlth. 1991).

If the connection is not "obvious", the burden of proof is on the Employee to establish the connection through unequivocal medical testimony. Tobias.

If the new symptoms and the work injury are obviously related, then Employee has the benefit of a presumption that the new symptoms are related to the work injury and the Employer has the burden to establish they are not related. See: Kurtz v. WCAB (Waynesburg College) (Pa. Cmwlth. 2002).

Factual and Procedural Background in Kussie
The unrepresented employee pursued an appeal from a denial of her claim, reinstatement and penalty petitions. Her September 2004 work injury occurred when she was cleaning a knife at work and splashed bleach into her eyes. The Employer accepted liability for this injury in October 2004 by issuing a Medical-Only Notice of Compensation Payable for the left eye (only).

More than three (3) years after the injury, Employee filed the claim, reinstatement and penalty petitions, essentially seeking payment of medical bills for treatment of additional eye symptoms.

Employee legal counsel withdrew prior to the first hearing, employee litigated the case without legal counsel. The petitions were denied. The WCAB remanded. The petitions were denied on remand.
On appeal, Employee alleged a variety of legal issues. For purposes of this discussion, we will focus only upon the medical expense issues.

Interaction of a Utilization Review, Medical Only NCP and New medical care.

Employee argued that a prior Utilization Review Determination filed by Employer, concluded medical care after on and after January 5, 2007 was reasonable and necessary treatment for her eye conditions.

Employee argued the UR gave her the right to future medical treatment.

Commonwealth Court explained the UR determination only addressed issues of "reasonableness and Necessity" of certain medical treatments.

The Workers' Compensation Judge, not the UR, must decide issues of disability and work-relationship of medical treatments.
See: Corcoran v. WCAB (Capital Cities ) (Pa. Cmwlth. 1999).

Employee's initial symptoms in 2004 were of burning, redness and light-sensitivity of her eyes.
Her current symptoms included complaints of difficulty seeing at night, irritation from dusty work conditions and severe headaches. Her medical report letters did not explain, what were her current eye problems and whether these symptoms were related to her work injury.

As there was no obvious causal relationship of employee's current symptoms to the acknowledged work injury, she had the burden of proving these symptoms and medical treatments were causally related to the work injury. She failed to meet her burden of proof via competent and credible medical evidence, to establish her symptoms were related to the mild chemical burn she received more than three (3) years earlier.

Practice Pointers:
1. It is important to note that the past favorable Utilization Review Determination did not give claimant an "open checkbook" to receive reimbursement for all future medical treatments.

2. The past favorable Utilization Review Determination did not preclude the WCJ from deciding if the current medical treatments were related to the work injury. The physicians could conclude that the treatments were "reasonable and necessary" for claimant's current medical condition, but that condition may not be related to the original work injury. The WCJ must decide if it is related care.

3. Caution, take care in the drafting of the description of the "accepted" work injury, as this description will have an impact upon the Employer's liability for future medical expense treatments. The scope and extent of medical expense liability will rest upon the description of injury. Be Precise!

Friday, June 7, 2013

Impairment Rating Evaluation (IRE) Order is a Non-Appealable Order

An Impairment Rating Evaluation (IRE) is a remedy available to the Pennsylvania Employer to establish the degree of impairment of an injured worker. If the IRE results in a determination that the employee is less than 50% impaired, in accord with the AMA Guides to the Evaluation of Impairment, the duration of disability benefits is capped at 500 weeks. The rate of benefit payment remains unchanged. An Earning Power Assessment, based upon a labor market survey, is the remedy that allows an Employer to reduce the rate of benefit.

After the employee has receive 104 weeks of total disability benefits, an IRE may be scheduled.
If the employee does not comply with this request for evaluation, the Employer may file a Petition to Compel Physical Examination or Expert Interview pursuant to Section 314 (LIBC 499 form).

This petition will be assigned to a Workers' Compensation Judge for an evidentary hearing and decision. In the past, we have learned that an Employer does not need to establish that an injured worker is at "Maximum Medical Improvement", before scheduling the IRE.
[see: May 3, 2013, post discussing Stocklin decision]

 What is the WCJ errs and believes a "Pre-IRE" determination of MMI status is necessary?
An Employer must appeal this adverse decision, as it is based upon an incorrect interpretation of law.

The recent case at Carter v. WCAB (GenCorp, Inc.), No 1172 C.D. 2012 an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Brobson on May 7, 2013, reported this circumstance.

Factual and Procedural Background

Employee was injured in 1999. Workers' Compensation benefits were voluntarily paid pursuant to a Notice of Compensation Payable. In August 2010, Employer filed a Petition for Physical Examination to order employee to attend an IRE. Employee failed to appear at an exam scheduled for July 2010.
Employee argued Employer was not entitled to an IRE as Employer did not secure a medical opinion that he had reached MMI.

The WCJ denied the Employer petition based upon an (mistaken) interpretation of Section 306 (a.2) and the decision at Combine v. WCAB (National Fuel Gas Distribution Corp.)(Pa. Cmwlth. 2008). 
The WCJ ruled that Employer had to first independently establish employee was at MMI, before the IRE request.
The WCAB correctly reversed the WCJ order.
The WCAB directed employee to attend the IRE.
Employee appealed to the Commonwealth Court

Commonwealth Court decision

The Court quashed (dismissed) Employee's appeal. Why?

The WCAB order to direct employee to attend an IRE was an interlocutory order.
As an interlocutory order, it is a non-appealable order.
slip opinion page 3, citing Groller v, WCAB (Alstrom Energy Systems) (Pa. Cmwlth. 2005).

Groller stated that an order directing a claimant to submit to a medical examination is interlocutory as the order neither affected claimant's benefits nor affected employer's obligation to pay benefits. citing H.K.Porter Co. v. WCAB, 514 A.2d at 998-999, (Pa. Cmwlth. 1986).

Practice Pointers:
1. Remember, an order to compel the worker to attend any medical examination is a non-appealable order. You must file a petition and obtain an order from the WCJ. File a motion to quash any appeal, so you may proceed with the IRE or IME.

2. Schedule EACH workers compensation case for an IRE, after payment of the 104th week of total disability benefit payment. The IRE must be scheduled within 60 days of that 104th week.

Wednesday, June 5, 2013

Marcellus Shale Oil & Gas Employees and Pennsylvania Workers Compensation Jurisdiction

PA Workers' Compensation Jurisdiction over injured workers.
Marcellus Shale Oil and Gas employees have arrived in Pennsylvania to develop these natural resources. This industry has been touted as bringing jobs to areas of unemployment or lacking development. Many of the employment positions in the initial development require specialized skill sets. As a result, employers will often request that their experienced employees from other states travel to Pennsylvania to perform these jobs.

If this employee should suffer a work injury, what are the consequences?
Perhaps it is somewhat surprising that the answer is simple.
The Pennsylvania Workers' Compensation Act applies to all injuries occurring within the Commonwealth. The "residency" of the employee is not relevant to question of whether Pennsylvania law applies to a work injury that has occurred within Pennsylvania.

Section 101 of the Act reads: "[this act] ...shall apply to all injuries occurring within this Commonwealth, irrespective of the place where the contract of hire was made, renewed or extended and extraterritorially as provided by section 305.2".

The more complicated issue arises when there is a question of application of Pennsylvania workers compensation laws to an injury occurring outside of the boundaries of the Commonwealth. This circumstance requires review of the "extra-territorial" provisions of the Pennsylvania Act.

At times, the uninitiated reader may mistakenly interpret these provisions to apply to the analysis of compensibility of a work injury to the out-of-state employee, who is working within Pennsylvania.

No, the Pennsylvania Act applies to all injuries occurring within the Commonwealth.
The extra-territorial provisions apply Pennsylvania law to employees who suffer a work injury in another state, in specific circumstances. Section 305.2 is a difficultly worded passage. Simply stated, this provision allows for the application of Pennsylvania workers' compensation laws  where an employee is injured while working outside of the territorial boundaries of the commonwealth, if his/her employment is:

a. principally localized in this state, or

b. he/she is working under a contract of hire made in this state for employment that is not principally localized in any state, or

c. he/she is working under a contract of hire made in this state for employment principally localized in another state, whose work comp laws are not applicable to this employer, or

d. he/she is working under a contract of hire made in this state for employment outside of the United States and Canada.

Appellate Case Decisions:

One of the more recent cases to interpret the application of the Pennsylvania Workers' Compensation Extraterritorial provisions at Section 305.2 was reported at:  Williams v. WCAB (POHL Transportation) 4 A.3d 742 (Pa. Cmwlth. 2010).

In Williams, the court looked to the amount of time (in miles) that a truck driver spent in Ohio versus Pennsylvania to determine where his employment was "principally localized". The driver's log book reflected he spent 38% of his time in Pennsylvania, 32% of his work time was in Ohio and 30% of his work time was in 19 other states. The court noted that section 305.2 (d) (4) (iii) did not require that claimant spend the majority of his time working in Pennsylvania, rather it only requires a substantial portion of his working time. The court determined that the evidence presented met the statutory requirement for Pennsylvania jurisdiction over his injury claim.

A similar analysis and result was obtained in Goldberg v. WCAB (Star Enterprises) 696 A.2d 263 (Pa. Cmwlth. 1997). The employee was a Pennsylvania resident hired in NJ to set up and supervise a new program to expand full service and food service locations of the gas station owner. The majority of the store set-ups and business dealings were in  PA. The site of injury was a NJ store.The facts reflect the employee worked in Pa "as a rule and not an exception". This demonstrated the employment was "principally localized" in PA.

Practice Pointers:
1. If the injury occurred within the geographic boundaries of Pennsylvania, then Pennsylvania workers' compensation law applies.
2. If the employment is principally localized in Pennsylvania, then Pennsylvania law applies.
3. If the employment is not principally localized in any state and it is a contract of hire made in Pennsylvania, then Pennsylvania law applies.
4. If the employment is principally localized in another state (whose laws do not apply to employer) and it is a contract of hire made in Pennsylvania, then Pennsylvania law applies.

Any Questions?