Tuesday, July 30, 2013

A Challenge to Employee Medical Evidence

Medical Expert Evidence in Termination Petition Litigation.

Pennsylvania workers' compensation  cases often feature conflicting medical opinions. Whether it is an original claim for work-related disability or a request for Modification, Suspension or Termination, each party will submit medical expert evidence in support of their respective position.

In a Petition for Termination of workers' compensation benefit payments, the Employer will have the burden of proving that the employee's work-related disability has ceased or that any remaining disability is non-occupational.

Zebrowski v. WCAB (Federal Express Corp.), No. 2326 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Senior Judge Friedman on July 11, 2013, addressed this issue regarding medical expert evidence.

Factual & Procedural Background

Employee was injured in 2003, while working as a cargo handler. The NCP recognized a work injury described as "low back area, lumbar sprain". In 2007 Employer filed a Termination petition, alleging a full recovery based upon the medical exam and opinions of Dr. Armand Mendez. He opined any continuing back pain could be explained on the basis of employee's lumbar disc disease. Employee's treating chiropractor since 2005, Marc Cohen, D.C. diagnosed multiple level disc protrusions, degenerative disc disease and chronic right L4 radiculopathy. He did not provide an opinion that employee remained disabled due to her work injury(?).

In a May 2008 decision the WCJ denied the Termination petition... finding Dr. Cohen's opinions were more credible and persuasive than Dr. Mendez regarding the issue of full recovery and ability to return-to-work. [ note the WCJ did not "reject" the credibility of Employer's medical expert].

Employer appealed the WCJ decision.
WCAB decision in June 2009 vacated and remanded the WCJ decision. WHY?

Employee medical expert opinion was based upon assumptions that differed from the established facts, therefore it was a legally incompetent expert opinion. Employee expert believed employee sustained discogenic disease including disc pathology, polyphasic changes and a chronic low back condition as a result of the work injury, when in fact the work injury was described as a lumber sprain.

On remand, the 2010 WCJ order GRANTED the Termination Petition based upon Employer medical expert evidence. The WCJ found Employer medical expert to be credible and persuasive that employee had fully recovered from the work injury.

Employee appealed and the WCAB affirmed the WCJ.

Commonwealth Court Decision

The WCAB and WCJ were correct on remand, a medical expert opinion that fails to [correctly]recognize the work injury is not a legally competent opinion. citing Lookout Volunteer Fire Company v. WCAB (Pa. Cmwlth. 1980), "Where an expert opinion is contrary to the established facts or is based upon assumptions not in the record, it is valueless".

Employee argued that Employer has the burden of proof in a termination petition, therefore the employee's medical evidence is not relevant, where in the first instance the WCJ does not adopt the employer evidence. (Medical evidence presented by the unburdened party can be irrelevant when the burdened party's medical evidence fails to meet this burden of proof. citing Association of Retarded Citizens v. WCAB (Pa. Cmwlth. 1994).

Importantly, the reliance on employee's medical evidence is not a harmless error where that incompetent opinion is used in determining the credibility of employer's medical evidence. Remember, the WCJ originally weighed the two opinions and favored employee's medical expert. If employee's medical evidence was not considered, the original determination may have been different ... and in this case, on remand, the evaluation of evidence was different.


When assessing the prospects for successful appellate review of medical evidence, do not "automatically" assume that the WCJ assignment of credibility is the final determination. In the instant case, it appears the WCJ did not "reject" the employer evidence, rather the WCJ assigned a greater amount of credibility to employee evidence. When employee evidence is found to be incompetent, the only remaining credible opinion supports a finding of termination of work related disability.

Thursday, July 25, 2013

Fatal Claim from Prescription Medication Toxicity

A Fatal Claim petition may be filed where the death of an employee occurs within 300 weeks of the original work injury.

Section 301 (c)(1) of the Pennsylvania Workers' Compensation Act defines the term "injury" to include "death resulting from such injury and it's resultant effects, and occurring within three hundred weeks after injury". 

Whitesell v. WCAB (Staples Inc.), No. 205 C.D. 2013, a reported panel decision of the Commonwealth Court of Pennsylvania, authored by President Judge Pellegrini on July 10, 2013, addressed this issue.

Factual & Procedural Background 

Employee suffered a work injury in October 2003, described as a "lumbar strain/sprain". In 2006, after two spinal surgeries, the parties stipulated to an amended description of injury, " lumbar strain/sprain and lumbar disc disruption L4-5, resulting in total disc arthroplasty at L4-L5 level". The WCJ issued a decision, consistent with this stipulation.

On June 8, 2011 Claimant widower filed a Fatal Claim petition alleging employee died on June 13, 2013 as a result of mixed drug toxicity from medications prescribed by her physician.

Employer answer to the claim denied those averrments and asserted the death did not occur within 300 weeks as required by the Act. 

WCJ denied the claim, concluding the claim is barred under Section 301 (c)(1) as her death did not occur within 300 weeks of her injury, as required.

WCAB Appeal

Claimant argued the claim petition was timely, as it was filed within 300 weeks of the additional "injury" that was accepted at the time of the 2006 WCJ decision. Claimant argued this was an "insidious" injury and argued for application of an occupational disease-type standard.
These arguments were rejected by the WCAB. 

Commonwealth Court Appeal

Claimant's arguments were repeated and rejected.
1. Appellate decisions have consistently held that the 300 week rule applies without exception. To be considered compensible, the workers' death must occur within 300 weeks of the original work injury. Citing: Shoemaker 1992;  Antonucci 1991;  Formicola 1986.

2. The argument that an occupational disease-type rule would start the 300 week time duration at the time of the "new injury" was correctly rejected. Note: In 2006 there was a "new" injury description, there was NOT a new injury. ( my reasoning, not CWCt.).

Commonwealth Court specifically states that an insidious nature of the injury/disease process would not alter the application of the 300 week rule. 

In Shoemaker, that worker was injured in a 1980 work related truck accident. In treatment for his injuries, he received blood transfusions and in 1987 he was subsequently diagnosed with AIDS, which proved to be a fatal condition, later that year. The argument that the AIDS condition was a "new" injury for the purpose of the 300 week rule was rejected. No legal authority could be found to support the argument to commence the timeframe at the later date.

In Whitesell, the diagnosis of mixed drug toxicity is no more insidious than contracting AIDS through blood transfusion. The Claimant arguments were properly rejected.

Wednesday, July 24, 2013

Publication of Channellock Decision

By an order dated July 10, 2013, the Commonwealth Court of Pennsylvania granted the request to publish this unreported memorandum panel decision entered May 8, 2013.

See my blog post dated May 9, 2013, regarding Channellock v. WCAB (Reynolds).

Now this insightful legal opinion can be cited as legal precedent, in other similar circumstances.

Employers and Insurers,  now you have ample notice, that a modified work assignment, that does not keep your employee awake, may be the basis for a reinstatement of total disability benefits.

Monday, July 8, 2013

Statute of Limitations on CMS Conditional Payment recovery

Statute of Limitations on Conditional Payment recovery.
When an injured employee receives medical care and the Social Security Administration pays a medical expense under the Medicare program, a "conditional payment" is created.

Where a "primary  plan" under subsection (A) (ii) has not made payment with respect to an item or service promptly, Medicare may make "conditional payments" and then seek reimbursement from the "primary plan".  See: 42 USC Section 1395Y (b)(2)(B)(i).

"A primary plan's responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient's compromise, waiver or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan ...". See: id.

To protect Medicare's rights and the parties from liability to Medicare, a "lien inquiry" letter should be sent to determine whether payments have been made and need to be repaid.

The "Medicare Secondary Payer Recovery Portal" (MSPRP) is a web-based tool to assist the Workers' Compensation insurer in accessing and securing information regarding any conditional payments.

One of the difficulties in obtaining a "final" closure of a work comp case was the future possibility that there could be a Social Security (Centers for Medicare and Medicaid Services) CMS request for conditional payment reimbursement. A number of Federal District court cases addressed this "statute of limitations" issue in different fashions. The decision at United States v. Stricker, (filed December 1, 2009) addressed the government action for recovery of conditional payments after an injury settlement. That Court interpreted the Federal Claims Collection Act to apply a three (3) year "tort" statute of limitation for the corporate (insurer) defendants and applied a six (6) year "contract" statute of limitation for claims against the plaintiff attorneys. Uncertainty prevailed.

As of Wednesday July 10, 2013 there will be a limit upon an action for recovery of any conditional payment.

An action for recovery of a conditional payment cannot be pursued if it is more than three (3) years from the date of notice to CMS of the settlement, judgment or award.
  • The settlement date must occur after July 10, 2013.
  • CMS must be place on notice of the settlement or award.
This section of the SMART Act will provide the workers' compensation insurer with finality regarding conditional payment issues.

Query: Will the Mandatory reporting requirements of Section 111 of the Medicare Secondary Payer Act eventually result in the extinction of any "conditional payments" as Medicare will have access to information as to which employee has a liability, auto or work comp case pending?

Tuesday, July 2, 2013

The Art of Securing a Pennsylvania Supersedeas Fund Reimbursement

The Art of the Supersedeas Fund Reimbursement.
An Employer or Insurer may seek payment from the Supersedeas Fund, where workers' compensation benefits are paid and it is later determined that compensation was not payable to the Employee. There are several restrictions upon this remedy.

Department of Labor & Industry, BWC v. WCAB (Dollar General Corp. LLC), No. 473 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court, authored by Judge McCullough on July 1, 2013, addressed several Supersedeas Fund reimbursement issues.

As a general background, a review of the basic rules is appropriate.
  • First, there must be a "supersedeas request" in the petition filed by the Employer.
  • Second, payments must be made after the denial of the supersedeas request.
  • Third, payments must be made as a result of an order denying supersedeas.
  • Fourth, the supersedeas request may include indemnity and medical expense payments.

A Supersedas Fund reimbursement is not allowed when there is a voluntary payment or the absence of a supersedeas request in Employer's petition.  In the disputed claim petition the supersedeas request must be made on appeal.

The Bureau of Workers' Compensation, as conservator of the fund, will contest one's entitlement to reimbursement where there is a settlement of all disputed factual and legal issues. For example, the Employer files a Termination petition and then settles the case. Even if the Employer has substantial credible evidence in support of the termination, the Employer will not be entitled to reimbursement of benefits paid after the petition was filed.  

An "exception" has developed and reimbursement may be allowed where there is an issue which was not settled but was preserved for decision by the Workers' Compensation Judge. 
For example, the parties reach a settlement figure based upon "suspension" of benefits  but request the WCJ rule on the Employer  right to an order of Termination of all future liability.
In this instance the WCJ may rule on the Termination petition. If termination is granted, the Employer may file for supersedes fund reimbursement for the benefits paid since the filing date of the Termination petition. The effect is to "reduce" the amount of overall benefit payout. This practice is discouraged as it is seen as an inappropriate use of the Fund to "finance" a portion of the settlement.

"Where an Employer has settled some or all of a claimant's benefits by way of agreement, the availability of supersedeas reimbursement generally turns on: (1) whether the funds to be reimbursed were paid for past due or future benefits; (2) whether the employer paid them pursuant to the agreement; and (3) whether the agreement reserves the employer's right to seek future supersedeas reimbursement or to continue contesting liability for the benefits for which it seeks reimbursement. Department of Labor & Industry, BWC v. WCAB (Ethan-Allen Eldridge Division) 972 A.2d 1268 (Pa. Cmwlth. 2009). slip opinion at page 3.

Factual & Procedural Background

In Dollar General, the parties entered into a Compromise & Release settlement agreement whereby employee would receive a lump sum for past benefits and a lump sum for future benefits. Employee would withdraw a penalty petition and Employer would withdraw its suspension petition. The parties stipulated that the C&R settlement would not affect Employer's pending appeal from the WCJ prior decision which denied  the termination petition or the Employer's right to seek Supersedeas reimbursement, in the event of a reversal of that WCJ decision. On appeal the WCAB reversed and remanded the case. On remand, the WCJ found there was sufficient competent and credible evidence for a termination of benefits. This "victory" created a sum of "overpaid" benefits which formed the basis for the underlying supersedeas fund reimbursement request.

Practice Pointers:
1. This decision highlights the necessity to have experienced workers' compensation counsel to compose a settlement proposal which incorporates the elements necessary to preserve any supersedeas reimbursement rights and reduce the "net" benefit payout on settlement.
2. In your settlement evaluation, review the options, with a supersedeas fund reimbursement and without reimbursement. The amount of your supersedeas fund recovery may be the difference between a "good deal" and an average case closure.