Thursday, October 31, 2013

Court abruptly expands "Discovery Rule" for Notice of Injury in Trauma Cases

An injured Employee must provide notice of injury to the Employer within 120 days of the occurrence of the injury. If the Employer does not have actual knowledge of the injury, the injury claim is barred, where the Employee does not provide timely notice of the work injury.

This timeframe for providing notice of injury to the Employer, is extended, in cases resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employee.

In this circumstance, the time for providing notice of the injury, shall not begin to run until the employee knows , or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to the employment. This is commonly referred to as the "Discovery Rule" of notice.
See: Section 311, 77 P.S. 631.

A dichotomy has existed between traumatic injury claims and occupational disease claims for the standard for notice of injury to the employer. Simply stated, the discovery rule was limited in its application to occupational disease and hearing loss claims.

A Recent Commonwealth Court decision may have unknowingly altered that long-standing analysis!

A&J Builders, Inc. v. WCAB (Verdi), No. 479 C.D. 2013, a published opinion of a panel of the Commonwealth Court, authored by Judge Simpson on October 16, 2013, addressed this "notice" of work-related injury issue.

Factual and Procedural Background
Employee was a commercial drywall carpenter for 33 years. The last 10 years he received employment assignments from the union hall with various employers.

A&J employed him from August 2004 to September 25, 2007.
J.D. Miller employed him for 3 days, until his final work day of October 6, 2008.

He filed a claim petition in June 2009 against J.D. Miller for total disability from repetitive trauma to his right knee. The "date of injury" was October 6, 2008, his last day of work with JDM.

He filed a claim petition on July 10, 2009 against A&J for total disability from repetitive trauma to his right knee. The "date of injury" was September 25, 2007, his last day of work with A&J.
He sought benefits commencing October 6, 2008.

A&J filed Joinder Petitions of other employers of this individual.

Employee Testimony
His work duties included climbing up and down scaffolding, with carrying and installing drywall panels.
In 2004 he had right knee surgery while working with Heartwood Construction.
After surgery, he returned to work without any restrictions and performed his regular job duties.
At this point he was working with A&J.
He said these work duties caused his right knee pain to return.

In 2006 he started treating with Peter Vitanzo, M.D. for right knee pain.
Employee said he was not sure whether there was a relationship between his work duties and his knee pain. His doctor did not tell him there was a relationship. Slip opinion page 3.
[exercise of reasonable diligence?]

When he stopped working with A&J (Sept 25, 2007) he said he always had right knee pain. He told Dr. Vitanzo that squatting, kneeling, going up and down increased his pain. [But apparently Dr. Vitanzo remained silent as to the cause of these pain complaints!?]

He worked with several other employers in the timeframe from September 26, 2007 to October 3, 2008.
The "last" employer was JDM. He performed his usual drywall carpenter duties. By his last day on October 6, 2008 his right knee filled with fluid and was "hard as a rock".

He stopped working for JDM because the job was finished and he was "laid off".
His pain did not go away when he stopped working, rather it worsened.
[Apparently this pain had not "gone away" since 2006!]

Employee testified that he began to treat with Dennis P. McHugh, D.O. for his right knee in January 2009.
On March 31, 2009 his physician informed him "for the first time" that there was a causal connection between his right knee pain and his work duties.

Employee Medical Expert
Dr. McHugh testified of his review of the 2006 records of Dr. V.
Employee complained of flare ups with squatting or bending.
Dr. V. told him it was to be expected given his underlying arthritis.
Dr. V's 2006 notes did not express any further opinion regarding causation.
[... exercise of reasonable diligence...?]

January 2009, Dr. M. diagnosed crepitus in the patellofemoral knee joint.
February 2009 MRI showed advanced arthritis under the knee cap.
March 31, 2009 exam Dr. M. diagnosed "Chronic repetitive work-related chondral wear in the patellofemoral joint of the right knee, which is irreversible".

This was the first time he informed employee that there was a connection between his right knee condition and his work duties. 

Dr. M opined employee was disabled from working as a drywall carpenter due to this condition.
Dr. M opined the work duties with A&J and with JDM both materially aggravated the underlying knee condition. As he worked longer with A&J, he sustained more damage there, compared to his brief employment (3 days) with JDM.

A&J - no medical evidence?

JDM medical expert opined employee has age-related degenerative joint disease of the right knee. He was disabled from work, but this was not related to his job duties. He conceded the knee symptoms were due to chronic repetitive work-related wear in the joint.
He opined the 3 days of work with JDM did not substantially contribute to the right knee arthritis.

WCJ decision:
Employee testimony was credible in its entirety..
Found Employee medical expert credible that A&J work duties materially aggravated the underlying knee condition and caused employee's disability.
Rejected that part where he said JDM work duties also materially aggravated the underlying knee condition.

Rejected Employer medical expert opinion, except for that part where he said JDM duties were not a material aggravation.
***[I never like this "pick and choose" single sentences from medical testimony, either you believe one version of the medical expert analysis or you believe the other!]

Employee met his burden of proof, he was disabled as a result of the work-related material aggravation of his pre-existing degenerative knee condition as a result of his work with A&J.

Appellate Review 
A&J appealed.
WCAB affirmed this defective WCJ decision.
A&J appealed to the Commonwealth Court. The court also affirmed this defective WCJ decision.

Commonwealth Court Reasoning:
Employer A&J argued:
 (1) Notice Issue. Employee did not provide timely notice of injury with 120 days of his last employment. As the last day of employment is the "date of injury" in a repetitive/cumulative trauma-type injury, his claim must fail. Employee failed to exercise reasonable diligence;

(2) Liability Issue. It was an error to not assign liability to the last-in-time employer (JDM) in a repetitive/cumulative trauma-type injury.

Notice Issue
Court reviewed language at section 311. Court read the "or any other cause in which the nature of the injury or its relationship to the employment is not known to the employee" phrase.
Court concluded this phrase could apply to this traumatic injury.

Court cited Pa Supreme Court case in Sell, in support of its conclusion.
Sell was an occupational disease claim!
Court rejected the logic of Allegheny Ludlum case, a trauma case where notice was not timely.

Court repeats"credible" employee testimony, that he did not know of work-relationship of his knee condition to work duties until doctor "told" him on March 31, 2009. Slip opinion page 13.

Employer's "reasonable diligence" argument is rejected. Employer argued employee "knew or should have known" of a possible work-relationship as early as 2006, when he went to a medical specialist, an orthopedic surgeon, and continued to treat for years.
This constructive knowledge argument was rejected.
[do we actually believe that patients and medical professionals do not discuss what caused them to come in for treatment of pain symptoms, particularly in a surgically repaired knee?].

Liability Issue
Why is JMD not responsible for benefits?
The general rule is that, where an  intervening incident materially contributes to a renewed physical disability, the worker has suffered as new injury or aggravation. S. Abington Twp. v. WCAB (Becker) 831 A.2d 175 (Pa. Cmwlth. 2003). An aggravation of a preexisting condition is deemed a new injury, rendering the employer at the time of aggravation responsible for benefit payment.

Why is there no finding of a "new injury" with the last JMD employment?
To the extent Employee's medical expert determined that Employee's work at both A&J and JDM materially aggravated the underlying knee condition, the WCJ rejected the portion of testimony that the brief employment at JDM was a a material aggravation, or new injury.
The WCJ is free to accept or reject the testimony of any witness, in whole or in part, blah, blah, blah.
Decision affirmed.

The existing Case Law regarding the Discovery Rule and Trauma Injury

The extension of a "discovery rule" for notice of a work-related trauma injury was rejected in:

1976 WCAB v. Niemann
1977 WCAB v. Griffith
1986 Young v. WCAB (Jones & Laughlin Steel Corp.) [MDS case]
1990 Eddy v. WCAB [Fried Kane case]
1990 Bolitch v. WCAB
1991 Berisford v. WCAB
1993 Arthrell v. WCAB

In my opinion the Court affirmed the award of benefits, based upon an incorrect reading of the existing caselaw regarding the notice requirement for a work-related traumatic injury.
Although the WCJ it the final arbiter of credibility and weight of the evidence, this is not a credibility issue.

As a matter of law, it is obvious there is no testimony or evidence that employee provided notice to A&J of his traumatic injury within 120 days of his last date of aggravation of his pre-existing condition.

Accordingly, this claim petition should properly be dismissed.

Tuesday, October 22, 2013

Dear Insurer, Would you please pay for my Massage? ... Thank You!

Massage as a "Reasonable and Necessary" work-related Medical Treatment.
An Employer is responsible for reimbursement of medical treatment expenses which are:
Necessary and
Causally Related to a compensable work injury.

An Employer may remain responsible for medical expense reimbursements for a compensable work injury, until the parties enter into a compensation agreement or a WCJ issues a decision regarding ongoing responsibility.

The parties may enter into a Compromise & Release settlement agreement (LIBC-755) regarding indemnity wage loss benefits and not alter the rights and responsibilities of each party regarding medical expenses. In this instance, the "finality" desired in many settlement agreements, may not occur.

Moran v. WCAB (McCarthy Flowers), No. 830 C.D. 2013, a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on October 16, 2013, addressed this "post-settlement" medical expense issue.

Factual and Procedural Background
Employee injured his low back, described as an L4-5 disc herniation, in July 1997.
About 5 years later, the Employee and Employer entered into a Compromise & Release settlement for a lump sum of indemnity wage loss benefits. Responsibility of the Employer for reasonable and necessary medical expenses continued.

Employer filed a Utilization Review request (LIBC-601) in May 2010, to challenge the reasonableness and necessity of treatments rendered to Employee by Gail Kozlowski, LPN, including massage therapy.

The Employer's UR request was assigned to Rehabilitation Planning Inc, by the Bureau of Workers' Compensation. Heather Krull, LPN issued a UR determination in July 2010.

UR Determination was that massage therapy, (understood as NMT, friction and myofascial release/compression, application of a topical pain reliever "ChinaGel", was not reasonable,  as provided by Kozlowski, LPN.

Employee Petition to Review the UR Determination before the WCJ.

Employee submitted 2 reports from Kozlowski. She provided massage for low back pain, under the prescription, direction and recommendation of Dr. Michael D. Wolk.
She performed this therapeutic treatment :
  • within the scope of her practice; 
  • during her nursing training she learned basic massage strokes;
  • she furthered her education at Allied Medical and Technical Centers, receiving certification after completing 900+  hours of training;
  • she continued to become a teaching assistant in the AM&T program;
  • she received her National Certification after examination;
  • she is a member of the National Association of Nurse Massage Therapists;
  • she was accepted as a "provider" in an e-mail from Eileen K. Wunsch, Chief of Health Care Services Review of the Bureau of Workers' Compensation.
[ Query: did Wunsch have the statutory authority to provide any statement of who is/is not a "provider" pursuant to the Pennsylvania Workers' Compensation Act?
The term "provider" is defined at Section 109 and Regulation 127.3 as "a health care provider".]

WCJ Decision
WCJ found: Kozlowski meets the definition of a "health care provider";
She is licensed by PA as a Licensed Practical Nurse;
She provided treatment under the order of Dr. Wolk.

WCJ rejected Employer argument that this case was bound by the holding of the prior appellate court decision at Boleratz v. WCAB (Airgas, Inc.) 932 A.2d 1014 Pa. Cmwlth. 2007).
Boleratz denied reimbursement to a non-licensed healthcare provider for massage therapy.
HERE, Kozlowski is a licensed healthcare provider.

WCJ noted he addressed the "credentials" of Kozlowski to provide massage therapy treatments in 2 prior decisions.
WCJ noted  Employer evidence from Krull only addressed the "credentials" of Kozlowski to provide this treatment, this evidence did not address the "merits" of the massage therapy provided.

The RESULT. The Employee petition was granted to the extent that Employer only argued that Kozlowski could not even provide these massage services. On this basis, the Employee petition was granted, the UR Determination was "reversed" and Employer remained responsible for payment of this work-related treatment.

WCAB reversed the WCJ in Employer appeal.
Nothing in the evidentary record supports the assertion that massage therapy is within the scope of the practice of Kozlowski as an LPN.
Massage must be a medical service which the provider (Kozlowski) is licensed to provide pursuant to physician orders.
As Kozlowski has a certificate, but is not licensed by PA as a massage therapist, her services for massage therapy are not reimbursable under the Act. slip opinion page 6.

Commonwealth Court reversed and reinstated the WCJ decision to allow reimbursement.
1. In Utilization Review, Employer bears the burden of proving that the challenged treatment is not reasonable or necessary, throughout the proceedings.

2. There is a rebuttable presumption that treatment is reasonable and necessary.

3. Treatment may be considered reasonable and necessary, even if it is designed to manage symptoms rather than cure or permanently improve the underlying condition. See: Cruz v. WCAB (Philadelphia Club), 728 A.2d 413, (Pa. Cmwlth. 1999).

4. Boleratz decision is distinguishable from the instant case.
Boleratz received massage from Ms. Bell pursuant to a prescription written by Dr. Bernard Proy.
Bell was not licensed to perform massage and was not supervised by Dr. Proy
Employer refused to reimburse this treatment.
Court ruled, Bell was not a healthcare provider, even though she provided massage pursuant to a referral from a healthcare provider.
Employers must pay for medical services rendered by healthcare providers. A provider must be licensed or authorized to provide healthcare services, in order to be reimbursed.

5. HERE, Kozlowski is a Licensed Practical Nurse.
A Nurse is a healthcare provider under the Act.
Massage was prescribed by Dr. Wolk.
Kozlowski reports detailed her training in massage therapy as part of her LPN training.
She utilized massage in providing therapeutic care to patients.

The statute describing care authorized by LPN's states (in part) ...
the LPN functions as a member of the health-care team ... LPN administers medication and carries out therapeutic treatment ordered for the patient ... the LPN may accept a written order for medication and therapeutic treatment from a practitioner authorized by law and by facility policy to issue orders for medical and therapeutic measures.  See: Pa. Code 21.145(a)-(b)(1).

Employer failed to establish that massage therapy did not come under the duties of an LPN.
Employer evidence (the UR Determination) failed to address the merits of whether the treatment rendered by Kozlowski was reasonable and necessary.

Practice pointers:
1. This Employer suffers a poor result, primarily based upon the limits of the UR Determination. 
Employer does not "pick' the UR, you get an assignment Bureau. Employer was "stuck" with this evidence. 
Employer was not provided the remedy requested.

2. IMHO, if the UR does not address all of the PERTINENT issues, such as the basic issue of "Reasonableness and Necessity of treatments", the Employer should not be penalized. This case should be re-assigned by the Bureau so that the Employer get get what they ask for ... a report regarding the "reasonableness and Necessity' of treatment rendered!!!
Seems pretty basic.

3. This decision DOES NOT stand for the proposition that ALL massage by an LPN is automatically "reasonable and necessary" treatment.

4. This decision DOES NOT stand for the proposition that ALL massage is treatment authorized for any LPN. The decisive factor in this case, was the training of the person providing the massage. In the event your LPN does not have this specialized training .... then the treatment is not authorized. 

5. Get the credentials of the person providing any treatment. Get the Physician orders.

6. Get the medical records ... was this care reasonably and necessary?
Was there ANY treatment effect recorded?

Thursday, October 17, 2013

Employer's Job Offer leads to Suspension of Benefits

The Value of a Successful Well-Documented Job Offer.
An Employer may offer an employment position to an injured employee. The proffered position must be within the employee's physical and vocational capabilities. The legal standard for the Employer's proof was delineated in the often-cited Pennsylvania Supreme Court decision at Kachinski v. WCAB (Vepco Construction Co.), 532 A.2d 374 (Pa. 1987). 

More than 25 years later, we still face appellate challenges to the Employer's evidence from unsuccessful employees.

Markardt v. WCAB (Woodloch Pines Inc.) , No. 434 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Senior Judge Friedman on September 30, 2013 addressed this "job offer" issue.

Factual and Procedural Background
Employee injured her cervical and lumber spine (strain) in her duties as a housekeeper with
Employer in August 2007. A NTCP was issued, which converted to a NCP.

April 2008 IME with S. Ross Noble, M.D. supported Employer's Termination Petition.
November 2008 Employer modified duty job offer supported Employer's Suspension Petition.

WCJ Decision
Employer medical expert was credible, in part.
Employee's medical witness, Paul Vessa, M.D. was not persuasive.
The Termination petition was denied, BUT the Suspension petition was granted.

Employee WCAB Appeal
Remand, to determine whether Employer proved a "change" in employee's medical condition and made a referral to an available job... ie, did they meet the "Kachinski" burden of proof.

On Remand, the WCJ took additional testimony and found Employer met their burden of proof for a Suspension of benefits based upon the medical exam and job offer.

  • Employer medical expert was credible in his opinion that employee could return to work
  • Employer's Director of Housekeeping credibly testified regarding the job duties, 
  • -how they differed from the pre-injury position,
  • -she noted that assistance was available, 
  • -this utility person position was goal-oriented, rather than production-based, and 
  • -the position was offered to employee.
  • Employee testified she was capable performing almost any activity as long as she paced herself.
  • - she acknowledged she received the job offer letter.
  • - she acknowledged she did not attempt to perform this modified job.
  • Employee's failure to attempt the proffered job, was found by the WCJ to amount to bad faith.
Commonwealth Court Appeal
Employee argued 2 issues:
(I)   the WCJ did not issue a reasoned decision, as he failed to mention employee's medical witness and disregarded her medical evidence as to why she could not perform the specific job offered.

(II)  The WCJ erred in determining she acted in bad faith when she followed her doctor's advice and did not accept the position offered.

Court Reasoning in Affirmation of WCJ Decision
(I)   Section 422(a) of the Pennsylvania Workers' Compensation Act provides that: 

"All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decision so that all can determine why and how a particular result was reached. 

The WCJ shall specify the evidence upon which the WCJ relies and state the reasons for accepting it in conformity, with this section.When faced with conflicting evidence the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence". 
slip opinion at page 5.

The WCJ did address all of the evidence and credibility of witnesses in his initial decision.
The WCJ determined employee medical witness was not persuasive.
On remand, the WCJ only addressed the evidence relevant to the WCAB remand order.
The WCJ did not err in failing to address Dr. Vessa's opinion in the remand decision. This was not an issue in the remand order.

(II)   Pursuant to the Kachinski decision and Section 413 of the Act, 77 P.S. 772, an employer seeking to suspend (or modify) a claimant's benefits must meet the following requirements:

(1). the employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.

(2). The employer must then produce evidence of a referral to a then open job, which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.

(3).The claimant must then demonstrate that he has in good faith followed through on the job referral(s).

(4). If the referral fails to result in a job then claimant's benefits should continue.
See: Kachinski, 532 A.2d at 380.

HERE, Employer presented the medical testimony of Dr. Noble. He opined Employee had fully recovered from the work injury. He opined Employee could return to work without restrictions.
The WCJ found Dr. Nobel to be credible.

Employee admitted she was capable of performing almost any activity, as long as she paced herself.
On this basis, the WCJ did not err in finding Employer met criteria  #1.

Employer presented the testimony of the Director of Housekeeping. She described the modified duty job and her job offer to Employee.The WCJ found this testimony credible.
On this basis the WCJ did not err in finding Employer met criteria  #2.

The burden then shifted to Employee to demonstrate that she followed through on the job referral, in good faith. The WCJ found her failure to attempt to return-to-work OR contact Employer after the job offer amounted to bad faith.
On this basis the WCJ did not err in finding that Employee failer to met criteria  #3.

Practice Pointers:
1. A well documented job offer will allow the WCJ to grant a modification/suspension of wage loss benefits, if employee does not return to work.

In this instance the WCJ assigned greater credibility to Employer's medical evidence that she could return to work.

2. How might Employer avoid the outcome where the WCJ assigns greater weight to Employee's medical evidence?
During presentation of evidence, Employer may identify the reasons for physician disapproval and make an amended job offer!
Then the WCJ is presented with  2 return-to-work alternatives. 

3. Here, Employee alleged she did not return-to -work, based upon her physician recommendations. If the job offer is amended, as suggested at #2 above, are there others reasons for Employee's refusal to attempt to return-to-work? 

4. Have the Employer contact (or vocational counselor) attempt to identify any reasons for the non-compliance. 

5. During litigation, cross examine Employee at the initial hearing regarding her job offer response, to document the lack of "good faith" and to identify any areas for possible job amendment.

Thursday, October 10, 2013

Claimant's Termination Petition "Defense" = Change Injury Description!

Employer's Termination Evidence versus Employee's Description of Injury Review.
In a proceeding to establish that liability for a work injury has ceased and "terminated" an Employer has the burden to prove that the employee's disability has ceased OR that any current disability is the result of a cause unrelated to the work injury. In a Termination petition proceeding, the burden of proof never shifts to the employee to prove the existence of a causal relationship between the disability and the work injury.

In the last few years we have read an increasing number of decisions where an employee will contest a Petition for Termination of benefits with an argument that:
(1) the work injury was  not correctly described in the original compensation documents; OR
(2) the work injury (or diagnosis) has changed, such that the original description is no longer accurate;

This observation of an increase of the Petition for REVIEW of the description of injury in the context of a Termination Petition, does not seem to be related to an increase in "stand-alone" Petitions to Review of the description of injury [in my personal experience].

What is the Basis for the Review?
Was the injury not accurately described at the outset?
Has the injury changed, such that the description is no longer accurate.
Who must file the petition to Review/Correct the injury description?
When must the Review Petition be filed?

Harrison v. WCAB (Auto Truck Transport Corp.), No. 769 C.D. 2013, an opinion of a panel of the Commonwealth court of Pennsylvania, authored by Judge Leavitt on October 2, 2013 addressed these Termination Petition and Review Injury Description issues.

Factual and Procedural Background
Employee slipped and injured his right ankle in the course of his duties as a truck driver. (May 2008).
Employer issued a Notice of Compensation Payable LIBC-495 and commenced total disability benefits for a work injury described as a "right ankle sprain".

An Impairment Rating Evaluation (IRE) by Lucian Bednarz, M.D. assigned a 13% impairment rating according to the AMA Guidelines. (August 2010).
Employer filed a Petition for Modification of Employee's benefit status from "total" to "partial" disability.

Independent Medical Examination (IME) by Michael Raklewicz, M.D. determined that employee had fully recovered from the work-related ankle sprain. (October 2010). (29 months of disability for a sprain).
Employer filed a Petition for Termination.

Employee filed a Petition to Review Compensation Benefits, seeking to amend the injury description to include the additional right ankle and foot conditions described by Dr. Bednarz in his IRE report.

Employee also wanted to add the leg fracture and knee injury he suffered when he fell at home in July 2010, which he alleged as a result of instability from the injured ankle.

Employee Medical Expert
Barry Bernstein, DPM the treating podiatrist diagnosed a pre-existing flat foot deformity, a nerve entrapment at the ankle, and a fracture fragment in the rear of the ankle. He performed surgery on the foot and ankle. Employee reported increased pain. He opined it was possible the pain caused Employee to fall and break his leg. Dr. Bernstein opined Employee was not fully recovered. He could not return-to-work as a truck driver.

Employer Medical Expert
Dr. Bednarz considered 2 diagnoses of Employee at the August 2010 IRE:
(1) the ankle sprain and
(2) the pre-existing flat foot deformity
[why? this 2nd diagnosis was not on the NCP?]

The 13% Impairment rating did not include a rating for the ankle sprain as Employee had no residual problems from that condition.
The 13% Impairment rating was wholly attributable to the after-effects of the surgery for Employee's pre-existing congenital flat foot condition.
[why is this included in work-related impairment?]

Dr Raklewicz, a Board -Certified Orthopedic expert reviewed his October 2010 IME findings.
Medical records including MRI shortly after the work-injury showed a mild ankle sprain, which was the original treating MD diagnosis. Bone scan showed  pre-existing bilateral flat feet which he believed caused ankle degeneration. He opined the surgery by Dr. Bernstein was directed to the problems from the congenital flat foot condition, not from the work-related ankle sprain.

Dr Raklewicz opined Employee fully recovered from the work-related ankle sprain. The leg fracture and knee injury from the fall injury at home were related to the pre-existing congenital foot condition, not the work injury.

WCJ Decision:
Modification was granted. Termination was granted. Review was denied
The unrebutted opinions of Dr Bednarz were credited by the WCJ.
Modification from total disability to partial disability was granted as of the August 2010 IRE.

The testimony of Dr. Raklewicz that Employee had fully recovered from the work-related ankle sprain injury was credited. The other foot, ankle and leg problems were found to be related to Employee's congenital condition, not to the work injury. Termination was granted as of the October 2010 IME.

The WCJ denied the Employee Review petition, concluding he failed to meet his burden of proof that the additional conditions were related to the work injury.

Commonwealth Court Decision:
Employee Arguments:
1. Employee argued the IRE report of Dr. Bednarz established the compensable injury was more than an ankle sprain. As the IME report of Dr. Raklewicz only addressed the NCP description of an ankle sprain, his testimony was not legally competent to support an order of Termination.

2. Employee argued the WCJ erroneously placed the burden upon him to prove the additional medical conditions were work-related, when he should have placed the burden upon Employer to prove those conditions were not work-related.

Court Reasoning:
After review of the Employer burden of proof in a Termination petition, the Court noted that the NCP establishes the description of the work injury. Employer must establish a full recovery from the injury described therein. Citing: City of Philadelphia v. WCAB (Butler) 24 A.3d 1120 (Pa. Cmwlth. 2011).

Amendment of Injury Description
"Section 413(a) of the Act allows the WCJ to amend the NCP at any time during litigation of a petition, if the evidence shows the injury sustained in the original work incident is different or more expansive than that listed in the NCP". 
Slip opinion page 6 citing: Cinram Manufacturing, Inc. v. WCAB (Hill) 975 A.2d 577 (Pa. 2009).

This is known as a "corrective amendment", as it corrects a mistake at the time the original document was prepared.

An NCP may also be amended if Claimant files a Review Petition and proves another injury subsequently arose as a consequence of the original injury.The party seeking to amend the NCP has the burden of proving the NCP is materially incorrect.

Employee Burden of Proof Argument.
Employee argued the burden of proof was altered in this case. The IRE report established his post-surgical problems were work related  as Dr.Bednarz considered these conditions in his impairment rating. Accordingly employee did not need to prove that these conditions were work-related, but rather Employer had to prove he was recovered from these conditions, in order to obtain an order of Termination.   As discussed below, this argument was rejected.

IRE as an Amendment of Injury Description?
The IRE is to be based only upon consideration of the "compensable injury".
An IRE determines the claimant's level of disability.
An IRE is separate and distinct from an IME.
An IME  determines whether a claimant has recovered from the work injury.
Dr. Bednarz' consideration of all of Employee's ailments did not "implicitly amend" the work injury to include all of his post-surgical problems.The IRE statutory language at Section 306(a.2) does not provide for an IRE to act as an "automatic" amendment of the description of injury.

Injury Description Amendment
Section 413(a) permits the WCJ to amend the NCP during the litigation of any petition, based upon the evidence, even if a review petition is not filed.
The Court noted an amendment of the injury description could occur in the context of a IRE proceeding, BUT, the WCJ is not required to amend the NCP.
In this case, based upon the evidence, the WCJ did not amend the NCP.
This was not erroneous as a matter of law.

IRE evidence of Injury Description
Upon inspection of the testimony of Dr. Bednarz, he did not opine the work injury extended beyond the sprain description. Out of an abundance of caution he included all of Employee's ankle and foot conditions in his impairment rating calculations BUT he concluded the 13% impairment was based entirely on the pre-existing flat foot condition. Dr. Bednarz specifically assigned "0" percent impairment to the ankle sprain injury. This medical evidence did not support Employee's argument.

It was not erroneous as a matter of law for the WCJ to modify Employee's status referencing  the 13% impairment. The Court noted it would have been more precise for the WCJ to use a "0" % impairment figure for the modification, but that action did not "implicitly amend" the description of the work-related injury.

As noted above, the Court rejected Employee's argument that the WCJ acceptance of the IRE evidence altered the burden of proof among the parties.
Employee argued that the additional injuries to be added to the NCP were in the same body region as the accepted work injury.
Therefore Employer should have been required to show that employee had also recovered from those conditions, relying upon the PA Supreme Court decision at Gumro v. WCAB (Emerald Mines Corp.) 626 A.2d 94 (Pa. 1993). 

Gumro was understood to place the burden of proof in a Termination proceeding, upon the employer where the case involved additional physical injuries that were very similar or at least involved the same body part, as the accepted work injury.

HOWEVER, the 2009 decision in Cinram Manufacturing clarified Gumro.
It is legitimate to allocate the burden of proof to claimant, to prove injuries which are not accepted by the employer. In Cinram, it was a difference between an alleged disc herniation and an accepted lumbar sprain.

"Where the injuries are separate, 'the burden rests with claimants to establish the existence of additional compensable injuries giving rise to corrective amendments, regardless of the procedural context in which the amendments are asserted.' Cinram at 533, 975 A.2d at 582" slip opinion page 10.

This means the burden of proving additional injuries is upon claimant.
HERE, Employee understood that, which is why he filed a Review petition!
Employee did not prevail before the WCJ in the Review petition to amend the injury description.
The Termination petition was properly granted as the Employer medical evidence found a full recovery from the accepted work-related injury and this evidence was found to be credible by the WCJ


1. In a Termination case, provide the IME medical expert with the Bureau documents describing the work injury. 

2. If there are medical conditions which are related, identify those additional conditions for the Medical Expert. 

3. At this point, consider voluntary Amendment of the description of injury to avoid any future controversy regarding the exact description of the accepted work injury.

4. If the work relationship of a medical condition is contested, issue an explanation of benefits letter when that medical billing statement is denied for lack of a causal relationship. 
Communicate this denial to claimant and to the Medical provider.

Friday, October 4, 2013

Claimant Attorney Fee Deductions... Who, What, When, Where, Why?

Employee Attorney Fee Deductions.
When an attorney is successful in representation of an injured Employee, the attorney may request the WCJ  approve an attorney fee deduction. See: Section 442, 77 P.S. 998. The statute specifically requires approval of any attorney fee deduction. The attorney fee deduction request shall be approved, provided the attorney fee does not exceed 20% of the amount awarded.

Where there is an unreasonable contest of a petition, the WCJ may award attorney fees, to be paid by Employer, in addition to the wage loss benefits and medical expense reimbursements awarded.
This attorney fee is not deducted from Employee's compensation award. This attorney fee award is authorized by a separate section of the Pennsylvania Workers' Compensation Act, Section 440, 77 P.S. 996.

When Employee is receiving work comp benefits and Employer files a petition, Employee Counsel will typically request the approval of an attorney fee deduction, at the time the WCJ rules upon the Employer supersedeas request, customarily after an initial hearing.

What if the WCJ does not rule on the Employee Attorney fee deduction request?
What if the WCJ does not rule on the Employer supersedeas request?

Mason v. WCAB (Upper Providence Township), No. 575 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on September 25, 2013, addressed these practical issues.

Factual and Procedural Background
Employee was injured in a work-related motor vehicle accident in the course of his employment as a police officer. Work Comp benefits were initiated via Notice of Temporary Compensation Payable LIBC-501. This document "converted" to a Notice of Compensation Payable, by operation of law, after 90 days. See: Section 406.1(d)(6), 77 P.S. 717.1(d)(6).

Medical Examination resulted in an opinion that Employee had recovered such that he was capable of returning to work as a police officer. Employer offered Employee the opportunity to return to his prior position. Employee did not return to work.

Employer filed a petition for Suspension as of the October 9, 2008 job offer. Employer requested a supersedeas (immediate suspension) of wage loss benefits during the litigation of the Suspension petition.
[Employer subsequently amended this petition to include an averment of Termination of all disability].

First Hearing Supersedeas Issues
At the initial WCJ  hearing of January 5, 2009, the WCJ considered the supersedeas request. Employee counsel was directed to submit a fee agreement by mail, which he did. The WCJ never issued an interlocutory order, to rule on the supersedeas request. He did not issue an interlocutory order to approve an immediate attorney fee deduction.

Note: When a WCJ does not rule on an Employer supersedeas request, within 14 days of the hearing, it is deemed denied from the date of filing of the request. See: Rule 131.43(a) of the Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges.

So Employee continues to receive 100% of his ongoing wage loss benefits during this litigation, as there was no supersedeas and there was no attorney fee approval.

WCJ Final Decision:
Employer Termination and Suspension Petition requests were denied in decision dated January 20, 2010.

WCJ approved an attorney fee deduction commencing retroactive to January 5, 2009, "the date of the supersedeas denial ". [?]

Employer WCAB Appeal
Employer did not appeal the WCJ denial of the Termination and Suspension requests.

Employer appealed the attorney fee "retro-activity" to January 5, 2009, as Employee had been paid 100% of wage loss benefits due, based upon the lack of an interlocutory supersedeas order or an interlocutory attorney fee deduction approval.

WCAB amended the WCJ order, to commence the approved attorney fee deduction as of the date of the WCJ decision.

Employee Attorney Appealed this Ruling!!!

Commonwealth Court Affirmed the WCAB decision.
The WCAB correctly reasoned that the WCJ did not "approve" the attorney fee deduction, until the date of his decision. Employee counsel did not submit an attorney fee agreement at the initial hearing.
Employee counsel did not request an attorney fee approval at the initial hearing or at any time thereafter.

Employee counsel was not entitled to an attorney fee deduction until the approval of a fee in the final decision.
Employer argued the WCJ order was "illegal on its face" as there is no authority to provide a retroactive award of attorney fees on compensation which has already been paid to a claimant".

Commonwealth Court relied upon its prior decision at City of Philadelphia v. WCAB (Ford-Tilghman) 996 A.2d 569 (Pa. Cmwlth. 2010) for the reasoning as to when a claimant attorney is entitled to a 20% attorney fee deduction, even in the situation where the employee receives 100% salary continuation under the Heart and Lung Act.

The Court explained, once the Termination petition is denied by the WCJ and the 20% attorney fee deduction is approved, 20% of claimant's indemnity benefits were no longer payable to claimant.
 At that point [the time of the decision] 20% was payable to counsel.
Slip opinion page 6, citing Ford-Tilghman 996 A.2d at 574.

Practice Pointers:
1. It is an uncommon circumstance were claimant counsel demands a retroactive payment of attorney fees, where claimant has received 100% of their wage loss benefits. This decision provides a common-sense resolution of the problem.

2. Employer and Insurer properly paid this case. 
IF employer paid a 20% attorney fee deduction WITHOUT WCJ approval, Claimant could make a request for payment of that 20% ... and probably prevail! 

3. Employer legal counsel should advise their clients WHEN there is an attorney fee deduction and the proper AMOUNT to be deducted, in their hearing report letter or upon receipt of an interlocutory supersedeas order.

Tuesday, October 1, 2013

How to Challenge Medical Expenses ... without Penalties

Medical Expenses may be challenged for lack of a causal relationship to the work injury.
Where an Employee is successful in establishing all of the essential elements of a compensable work injury, the Employer must compensate the wage loss and medical expense of the injured employee.

An Employer may accept liability for a work injury by filing a Notice of Compensation Payable (NCP) (LIBC-495) or an Agreement for Compensation (LIBC-336).
Employer may accept liability only for medical expense via the preparation of the "Medical Only" section of the NCP or via preparation of a Notice of Workers' Compensation Denial (NCD), (LIBC-496).

If the Employee desires wage loss payments, after receipt of a NCD or "Medical Only NCP, the Employee must file a Claim petition.
In this context, there may still be a disagreement as to the extent of medical expenses payable for the work injury. This may be true when the employee has a "pre-existing" medical condition.

Mohawk Industries, Inc. v. WCAB (Weyant), No. 197 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Cohn-Jubelirer on September 18, 2013, addressed these medical expense issues.

Factual and Procedural Background

Employee fell to the ground from his forklift, when he suffered a diabetic seizure.
Employer filed a NCD, which acknowledged the work fall, but agreed "to pay medical treatment for upper back and neck pain as a result of the fall only."

Employee filed a Claim petition alleging injury to his "upper back and neck, resulting in radiculopathy into both upper extremities".
Employee filed a Penalty petition alleging employer violated the act by failing to timely pay for treatment of the work injury.

Employee Medical expert Arnold G. Salotto, M.D. testified that pre-existing spinal stenosis, degenerative disc disease and bone spurs were aggravated as a result of the work fall and employee developed a disc herniation.

Employer Medical expert Lucian Bednarz, M.D. testified (in part) employee had neck pain as a result of the fall.

WCJ Decision
Employee's work-related fall necessitated the anterior cervical discectomy with fusion and plating by Dr. Salotto.
Employer medical witness acknowledged employee suffered neck pain as a result of the fall. Despite this testimony, Employer did not make timely payment of the surgical bills (within 30 days of submission, Regulation 127.208). A 20% penalty was assessed on the surgical bill for violation of Section 306(f.1).

Additionally, the WCJ noted some medical bills were paid by Blue Cross/Blue Shield.
WCJ ordered Employer to reimburse medical expenses paid by BC/BS. (reimburse to whom?)

Employer Appeal
1. Penalty Petition award was error as Employer never accepted liability for neck injury (NCD issued).
2. Reimbursement of medical expenses paid by BC/BS was error, as they did not file a subrogation lien.

WCAB Decision
1. Where an injury is recognized (NCD) and medical treatment reveals an additional diagnosis to the same body part, Employer bears the responsibility to prove the new diagnosis is not work-related. See: Body Shop v. WCAB (Schanz), 720 A.2d 795 (Pa. Cmwlth. 1998).

1.1 When an Employer refuses to pay medical expenses for the "new" diagnosis, the Employer accepts the risk that the WCJ may determine the treatment is work-related and assess penalties. Citing: Listino v. WCAB (INA Life Insurance Co.) 659 A.2d 45 (Pa. Cmwlth. 1995).

2. WCAB rejected employer argument regarding lack of medical insurer subrogation lien.
WCJ properly directed reimbursement of medical expenses to Claimant, even if expenses had been paid by a 3rd party. Citing: Frymiare v. WCAB (D. Pileggi & Sons) 524 A.2d 1016 (Pa. Cmwlth. 1987).

Commonwealth Court Decision
1. Medical Bill Penalty
Employer issued a NCD, "accepting" liability for the neck and back injury as a result of the work-related fall.
Employer argued it did not accept responsibility for all medical expenses.
Employer contested the work-relationship of the need for surgery, in light of the pre-existing medical conditions.
However, the WCJ found the surgery was necessitated by the work-related fall.
Once employer accepted liability for the fall injury, it had a duty to pay medical bills until there was a determination that their liability no longer exists. Slip opinion at page 6, citing Listino.

If employer disputed the causal relationship between the work injury and the medical treatment, employer could file a Review Medical Treatment petition.
[Query: would this help? The WCJ cannot grant a supersedeas as to medical expenses].
[What about filing a UR Request? Question necessity!]

Note: An employer will typically challenge the causal relationship by denying the medical expense with an Explanation of Benefits letter.
An employer will challenge the reasonableness or necessity of medical care via a Utilization Review request.

The Court held, where an employer unilaterally ceases payment of medical expenses, based solely on causation, they assume the risk of penalties if the WCJ rules the expenses are related to the work injury.
Citing: Roadway Express v. WCAB (Iwasko) 723 A.2d 1076 (Pa. Cmwlth. 1999).

2. Subrogation Lien
Employer argued it was an error to direct reimbursement to employee or BC/BS, for medical expenses already paid by BC/BS.
BC/BS did not file a subrogation lien.
Any payment to employee would be a windfall.

Court agreed, WCJ decision was ambiguous as to who should receive reimbursement.
Employer is correct, BC/BS could not receive reimbursement as it did not file a subrogation lien.
Referencing: Independence Blue Cross v. WCAB (Frankford Hospital) 820 A.2d 868 (Pa. Cmwlth. 2003).
To the extent the WCJ and WCAB directed reimbursement to BC/BS, they are in error.

The WCAB interpreted the WCJ order to direct reimbursement to employee.
However, employee never sought reimbursement for medical bills paid by his health insurer.

Court held, it is erroneous to grant employee more relief than requested.
It is prejudicial to employer, as they were not placed on notice that this relief was sought nor did employer have an opportunity to defend against this request.
Employee submitted only his unpaid medical bills for payment.
Employee submitted the paid surgical bill for assessment of a penalty.
Employer was not placed on notice that there was a request for reimbursement of the surgical bill, to employee or to BC/BS.

Commonwealth Court reversed the WCAB order for employer reimbursement of the surgical bill.

Practice Pointers
1. Determine if a medical bill will be contested on the basis of "causal relationship" or "reasonableness and necessity". The available remedies differ.

2. Recognize that a medical bill can be "denied" for lack of a causal relationship, however, an unsuccessful denial MAY result in the assessment of penalties.

3. Recall that the assessment of penalties by the WCJ is discretionary.  The WCJ may decline to assess a penalty where there is a legitimate reasonable contest. 

4. To attempt to avoid the assessment of penalties: (i) Describe the "accepted" work injury with a precise diagnosis; (ii) secure a prompt medical review and opinion regarding the extent of work related medical care. This medical evidence could be pursued via IME or URO.