Tuesday, September 24, 2013

2 Knee Injuries + 2 Insurers = Who Pays?

Work Comp Benefit Liability and "Reasonable" Contest in the Multiple Injury Claim.
The Worker Compensation Insurer is responsible for payment of indemnity wage loss benefits and medical expense reimbursements, for reasonable and necessary care, related to the work injury.

Where there is a legitimate dispute regarding the injured Employee's entitlement to work compensation benefit payment, Employee has the burden of proof to establish each element of a compensable injury claim.

Where the Employer unreasonably contests the injury claim, the Workers' Compensation Judge may award the payment of attorney fees by the Employer, as an additional cost of litigation.

This is fairly straight forward... until there is more than one injury to the same body region...

Central Air Freight Services, Inc. v. WCAB (Byer), No. 534 C.D. 2013, an unreported Memorandum Opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on September 6, 2013, reviewed this type of fact situation.

Factual and Procedural Background
October 2003 Employee suffered a work-related left knee injury, in the nature of a torn meniscus.
Employer issued a NTCP and started benefit payments.
Employee returned to work and an LIBC Notification of Suspension was filed, followed by a Supplemental Agreement for suspension.  

May 2009 Employee suffered a 2nd left knee injury at work.

Employee Petitions
He filed a Claim petition against SWIF the 2009 insurer.
He filed a Reinstatement Petition against Norguard, the 2003 insurer.

WCJ 410 Order
4 months after the 1st hearing, at Employee's request, WCJ issued an interlocutory order under Section 410 of the Act directing the two insurers to each pay 50% of Employee's wage loss and medical expenses, as there was no dispute employee was disabled, the only disputed issue was which insurer was responsible.

WCJ final decision
WCJ found Employee and Employee Medical Expert were credible.
SWIF Medical Expert was credible regarding Employee's ongoing problems.

2003 Norguard injury was to back part of knee, a torn posterior left medial meniscus.
Surgery was a near-total posterior medial meniscus removal, which caused post-traumatic arthritis.
The post-traumatic arthritis is the cause of employee disability as of October 2009.

2009 SWIF injury was to front part of knee, an anterior meniscal tear.
Employee recovered from this injury as of October 7, 2009.

Benefits Awarded
2009 SWIF claim petition injury disabled Employee from May 2009 to October 2009.

2003 Norguard reinstatement petition injury disabled employee from October 8, 2009 ... and into the
indefinite future.

Unreasonable Contest
WCJ found both SWIF and Norguard engaged in an unreasonable contest of each petition and assessed attorney fees totalling $6,645.

WCAB decision
AFFIRMED WCJ on assessment of liability.
REDUCED attorney fee award to the date that benefits started pursuant to the Section 410 WCJ order.

Commonwealth Court decision

Norguard Appeal Issues:
1. Error to affirm reinstatement order, there was no sufficient, competent evidence to establish 2003 injury affected earning power in 2009;
2. Error to conclude Employee and SWIF medical evidence is competent,
3. Error to conclude thee was an unreasonable contest.

1. Norguard argued substantial medical evidence supports a finding that the 2009 injury materially contributed to the need for medical care and wage loss. This would be a "new" injury, not a recurrence of 2003. Benefits should have continued for this "aggravation" injury.
Each day employee worked increased the degenerative changes in his knee, Each day was an "aggravation".

Commonwealth Court explained, it is not relevant that the evidence would support findings, other than those made by the WCJ. The scope of appellate review is to determine whether the findings authored by the WCJ are supported by substantial, competent and credible evidence.

Reinstatement of 2003 Norguard liability "after" the conclusion of the closed period of disability for the 2009 SWIF injury, was appropriate.

"Whether a disability results from an aggravation of a pre-existing condition or is a recurrence of a prior injury, is a question of fact for the WCJ to determine". (my emphasis). Citing: Reliable Food, Inc. v. WCAB (Horrocks) 660 A.2d 162 (Pa. Cmwlth. 1995).

Commonwealth Court reviewed the WCJ findings (reproduced in this opinion).
Competent and credible medical evidence supported the WCJ findings that the 2003 injury and surgery, which removed a substanial portion of the meniscus, resulted in: post-traumatic arthritis; synovitis; muscle atrophy, which was the cause of employee's disability, even after he recovered from the 2009 injury.

Employee met his burden of proof for reinstatement after a suspension, to establish his earning power (disability) is once again affected by his work injury and such disability is a continuation of disability from the original claim. See: PA Supreme Court decision at: Bufford v. WCAB (North Am. Telecom), 2 A.3d 548 (Pa. 2010).

2. Norguard argued the medical evidence relied upon by the WCJ was not competent as it relied upon an inaccurate understanding of employee's history of symptoms after 2003.
Employee testified he returned to full duty on 2004, without pain, without continuing medication and with little treatment. This was his status until the 2009 injury.

The medical evidence relied upon by the WCJ believed employee had continuing pain upon return to work in 2004. Yet, these witnesses could not explain how employee could work full duty from 2004 to 2009 (with pain?), but suddenly not work after 2009, due to the 2003 incident!

Newcomer v. WCAB (Ward Trucking Corp.), 692 A.2d 1062 (Pa. 1997) held that a medical expert opinion is incompetent if it is based solely on inaccurate or false information.
Here the medical evidence relied upon by the WCJ was competent to support the reinstatement award.

The Employee medical witness relied upon his first-hand 2009 surgical observations to support his opinion that the near total removal of the meniscus in 2004 was responsible for the development of degenerative changes within the knee. His lack of review of 2004 surgical records did not render his opinion incompetent.

Lastly, Commonwealth Court noted the WCJ referenced the medical records of Dr. Perlmutter from 2008 to support the finding of post 2004 symptoms. [Perlmutter was the 2004 surgeon].

3. Norguard argued the WCJ erred in finding an unreasonable contest of the reinstatement petition as employee returned to work within weeks of the 2004 surgery and worked without complaint until the 2009 injury. There were legitimate disputed issues regarding medical treatment and disability.

Morgan v. WCAB (Strock) 590 A.2d 1375 (Pa. Cmwlth. 1991) cited by the WCJ, held that a dispute between 2 insurers on the issue of liability cannot establish a reasonable contest, as to the claimant.

However, where the claimant raises the issue of which insurer is liable by filing separate petitions on separate theories of liability, the WCJ entry of a 410 order ends the insurers' contest with the claimant.
Slip opinion page 22 citing: Bittinger v. WCAB (Lobar Assocs. Inc.) 932 A.2d 355 (Pa. Cmwlth. 2007).

So the WCAB correctly modified the WCJ order regarding attorney fees.

Practice Pointers:
1. Sorting out the medical causation issues requires obtaining and reviewing all of the medical records of treatment with your examining medical expert.

2. Remember you can "stop" the unreasonable contest attorney fee duration by entering into a Section 410 order. However, is there is a question regarding the extent or duration of disability, you may re-consider this option.

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