Friday, November 22, 2013

NWCDC 2013

Attending the National Workers' Compensation and Disability Conference in Las Vegas, Nevada.

Thursday, November 14, 2013

Hearing Loss Claim - A Well Documented, Successful Defense

The requirements for establishing a claim for benefits for work-related hearing loss are set forth at Section 306(c)(8) of the Pennsylvania Workers' Compensation Act.

The burden of proof is on the claimant to establish that he/she suffers from a permanent hearing loss of 10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise.

Significantly, whether the employee has been, in fact, exposed to hazardous noise is not part of the claimant's burden of proof. Rather, it is an affirmative defense that may be asserted by the employer; that the claimant's exposure to noise was not hazardous or was not long-term.

The availability of information regarding work exposures and medical evaluation results, may impact the success of each party's position.

McCool v. WCAB (Sunoco, Inc.), No. 783 C.D. 2013, an opinion of the Commonwealth Court of Pennsylvania, authored by Judge Covey on October 18, 2013 reviewed claimant's entitlement to hearing loss benefits.

Factual and Procedural Background
Employee worked with Sunoco for five years from 2003 to his resignation on March 20, 2008.
He worked "office jobs" from 1998 to 2003.
Earlier, Employee was a Philadelphia firefighter for nearly 15 years, from November 1983 to October 1998.

Sunoco History
Employee alleged exposure to noise in his employment with Sunoco in his duties as an operator apprentice and refinery operator. The equipment and the refinery process was said to cause "extreme"  noise.
He would occasionally report to a block house, where there was a restroom, kitchen and equipment with fans and motors. He alleged this was also noisy.

Sunoco furnished and required the use of personal hearing protection. Approximately 12 different types were available. He did not have to wear earplugs in the blockhouse, so he only wore them when he was outside. He communicated with coworkers via walkie-talkies. In his last year of employment he wore headphones that permitted communication without a walkie-talkie.

Firefighter History
During his employment as a firefighter he was exposed to noise.
[This is the extent of the description of "noise" exposure in his employment as a firefighter.].
In April 2001 Employee had an audiogram, as a number of firefighters were examined and were pursuing hearing loss claims. He saw the union examining expert, Dr. Gold.
At this time his audiogram did not show an impairment, sufficient to file a claim.
[As later developed, this scenario becomes significant when the issue of notice and Employee's knowledge arises].

Employee underwent a Pre-Employment audiogram with Sunoco in December 2002 and then on an annual basis, thereafter. The 2002 audiogram showed a pre-existing hearing loss that continued to accelerate across all frequencies at each yearly re-test.
[Note: rapid loss and loss across all frequencies is not typical for occupational hearing loss].

In 2006/07 at Employee's request, his family physician made a referral to a hearing specialist, Dr. Stuart Scherr. At this time employee started wearing a hearing aid.

Employee Medical Expert
August 2, 2010,  Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment as a firefighter.
October 4, 2010,  Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment with Sunoco.
[there is reference to a July 7, 2010 exam and audiogram, so it appears there was not a 2nd exam].

Employer Medical Evidence
Dr. Lee D. Rowe examined employee on February 17, 2011, conducted an audiogram and reviewed the prior medical records and audiograms.
The history included a past skull fracture as a youth, which could cause auditory nerve damage and later progressive hearing loss.

Audiogram results showed a significant difference in loss of high frequencies, left was far worse than the right
Dr. Rowe calculated a binaural hearing loss of 52.5% in accord with the AMA guidelines.
This was a significant acceleration during the short time period from the Dr. Shapiro audiogram in July 2010.
[Remember Employee stopped working in March 2008; ie., no more noise exposure!].

Dr. Rowe reviewed the prior medical records and audiograms and noted:

  •  No AMA impairment at the time of the December 2002 Sunoco pre-employment exam;
  • audiograms after the firefighter and before Sunoco showed the beginning of an acceleration process that was not due to noise exposure; ie, when employee worked the "office jobs"; 
  • this progression of loss accelerated during Sunoco employment;
  • the start of hearing loss in 2005/06 was consistent with age-related hearing loss at age 53-54 years;
  • employee utilized hearing protection when employer with Sunoco;
  • asymmetrical hearing loss was consistent with the childhood skull fracture;
  • asymmetrical hearing loss is inconsistent with occupational noise induced hearing loss;
  • employee had other risk factors associated with hearing loss progression;
  • the dramatic increase in AMA impairment from 2010 to 2011 was inconsistent with occupational noise induced hearing loss.

WCJ Decision
In the Claim Petition litigation, the WCJ rejected the conflicting Shapiro reports as not credible.

The WCJ rejected employee's testimony as to when he knew his hearing loss was work related, as it was inconsistent with his prior knowledge from the 2001 testing and attorney meetings regarding a possible claim as a Philadelphia firefighter.

Employer medical expert, Lee D. Rowe, M.D. was found credible.

Commonwealth Court Appeal
Employee argument that the WCJ placed the burden of proving an exposure to hazardous noise upon him, was rejected.
Employee argument that the WCJ decision was not supported by competent evidence was rejected.
Employee's argument that the WCJ decision was not reasoned, was rejected.

Practice Pointers:
1. This litigation result demonstrates the value of obtaining detailed and complete medical records and employment history. This information allowed the medical expert to provide a well documented analysis of the non-occupational basis for employee's hearing loss.

2. In some cases, it is not possible to gather complete records. Information regarding past work environments, may be limited. This may compromise the ability of the medical expert to draw conclusions regarding the occupational or non-work causes of hearing loss. 

In this instance, I recommend focusing your discovery efforts on the medical records, as a means to document your causation arguments.

Thursday, November 7, 2013

PA Supreme Court awards State Trooper benefits for Abnormal Work Condition

An Employee claim for disability from a "mental-mental" psychic injury must establish the injury is a result of abnormal work conditions. For work conditions to be considered abnormal, they must be considered in the context of one's specific employment.

At times, appellate courts have struggled with this issue: What is "abnormal" for a job position which entails, stressful, difficult situations, such as encountered in employment as a police officer or other first responders?

Payes v. WCAB (Commonwealth, PA State Police), No. MAP 2011, an opinion of the Supreme Court of Pennsylvania, authored by Mr. Justice McCaffery on October 30, 2013 addressed this issue.

Factual and Procedural Background
Employee was a PA State Trooper for 12 years.
One evening a woman, dressed in black, ran in front of his patrol car. The car struck her. He administered mouth-to-mouth resuscitation, but she could not be revived. It was later discovered she was mentally disturbed and was seen walking near the highway, prior to this incident.

He was off work for about 5 weeks and then returned to office work, not his normal patrol duties. After 4 days he had recurring feelings of anxiousness and stress. He believed he could not continue to perform his duties as a State Trooper.

Employee filed a claim petition for total disability as a result of Post-Traumatic Stress Disorder (PTSD) from this incident. Employee testified. His Commander testified regarding police training, including stress management, automobile accident response and rendering first aid to accident victims. He described another incident where an individual was struck and killed while dashing in front of an officer's vehicle. Two Troopers testified regarding Employee's return-to-work attempt.

Employee medical experts diagnosed disability as a result of PTSD from this work incident.
Employer medical expert opined employee recovered from the PTSD condition.

WCJ Decision Awarded Benefits
WCJ assigned credibility to Employee testimony and to that of his medical experts.
WCJ found this incident was not a circumstance one would be exposed to in the normal course of performance of one's work duties.
Although state troopers may expect to encounter or be involved in violent situations; such as death, murder, horrible accidents, use of deadly force; this particular incident is not one normally encountered or expected of state troopers.
Employee's mental injury and disability was caused by this abnormal work condition.

WCAB and Commonwealth Court disagreed with the WCJ award.

Commonwealth Court [5 A.3d 855, Pa. Cmwlth. 2010] reasoned that employee's injury did not result from abnormal work conditions.
The events that occurred may have been unusual, but they were not so much more stressful and abnormal than the already highly stressful nature of employee's employment. He was trained to respond to emergency situations and accidents, he was trained to render first aid, it was not extraordinary for him to respond and have a person suffer fatal injuries.

"[Employee], who works"in the line of employment" of a police officer, can be expected to be witness to horrible tragedy... These events will not be deemed "extraordinary" or "abnormal ...".

But for the one "unusual" fact, that Employee was "the one" who struck and killed this individual, there would be no question that a mental-mental injury would not be compensable under these circumstances.

Supreme Court Majority Opinion
The Majority states that the question of whether a claimant has been exposed to abnormal working conditions is a mixed question of law and fact. "Appellate review of this question is a two-step process of reviewing the factual findings and then the legal conclusion.". Slip opinion page 9 and page 10 citing RAG Cyprus Emerald Resources, L.P. (Pa. 2007).

[Writing in dissent, Mr. Justice Eakin correctly finds this to be a settled matter, the question of whether factual findings establish an abnormal working condition is a question of law. citing Martin v. Ketchum, 568 A.2d 159 (Pa. 1990). Mr. Chief Justice Castille [separately writing a concurring and dissenting opinion] agrees with this dissent argument regarding the standard of review.

The gist and relevance of the McCaffery opinion "mixed question" discussion appears to be the "deference" to the WCJ fact finding.
[If you lose the credibility arguments before the WCJ... you will always lose the case! mds].

This sophist argument is taken to its logical conclusions in this case.

The WCJ drafted finding #13, that State Troopers are not, in the normal course of their duties, exposed to the circumstances that occurred in this case...
"... this factual finding is based upon undisputed evidence of a singular extraordinary event occurring during [Employee's] work shift, was founded on substantial evidence of record." slip opinion page 16.

In my opinion, the short-coming of this analysis is that a "unique" set of circumstances must be "abnormal, precisely because it is a unique set of facts, not because those facts culminate in an abnormal work condition.
Unique is not the equivalent of abnormal.

Practice Pointers:
1. This decision, with its faulty analysis should have a limited impact, as mental-mental injury claims are not very prevalent. 

Query: will Claimant Counsel be more likely to file mental-mental claims if they know that they can prevail on appeal, if they prevail before a sympathetic WCJ?

2. The defense handling of the mental-mental case remains the same. One must thoroughly explore the claimant's past history. One must document the work duties of the claimant, including the "regular" duties, in additional to the less frequent occurrences in the work place.

NOTE: my law partner Jim Mazzotta handled the appeal in this case, after the WCJ litigation.
I did not participate in this case.