Friday, January 30, 2015

Pennsylvania Standard for Mental Injury Awards

The Pennsylvania Work Comp Standard for Mental Injury. 
Since 1972, the amended definition of "injury" in  Pennsylvania Workers' Compensation Act has allowed an award for "mental" injury.

The difficulty arises in assessing and distinguishing  an alleged mental injury as a result of one's subjective reaction to normal work conditions [which is not a compensable work injury] from the circumstances which reflect mental injury as a result of abnormal working conditions.

Appellate decisions required the employee to establish by objective evidence that he/she has suffered a mental injury and that injury is other than a subjective reaction to normal work conditions.
This proved to be a difficult burden, in many cases.

In a landmark decision, the Pennsylvania Supreme Court reinstated the WCJ award of total disability benefits to a PA State Trooper, where they concluded the events described were not "normal" for a state trooper, but rather were " extraordinary and unusual" ... so as to meet the abnormal working condition standard.
See: Payes v. WCAB (Commonwealth/ PA State Police) 793 A.2d 543 (Pa. 2013). The State Trooper alleged PTSD after he struck and killed a (mentally disturbed) pedestrian who had run in front of his patrol car.

In December of 2014, the Commonwealth Court of Pennsylvania reviewed two different Mental Injury Appeals.
One decision REVERSED an award of total disability.
One decision AFFIRMED an award of total disability.

Question: Is there ONE standard for the assessment of mental injury?

Answer: Yes.
(I'm just not sure what is "abnormal"!)

Claim Denied.
In the reversal and denial of a claim for temporary total disability, the Commonwealth Court reviewed the facts presented for a disability claim due to atypical depression, This condition was alleged as a result of specific work episodes alleged as abnormal working conditions.
Frog Switch & Manufacturing Company v WCAB (Johnson), No. 149 C.D. 2014, a panel decision authored by Judge Covey on December 4, 2014.

Employee worked as a "rover" for a steel fabrication company and her duties included crane operation. She was one of two females and the only African-American, among 200 employees.
She alleged temporary disability from depression symptoms, as a result of her reaction to specific work incidents.

Her testimony reflected: (1) an incident when a co-worker told her that others told him to not work underneath her when she was operating a crane; (2) an employee said women should not work there and (3) she was removed from crane assignment as a co-worker refused to work underneath her.

There was an incident when a co-worker described - in her presence - that his wife was not gonna treat him like a (N word) on his day off.

There was an incident when she observed a noose hanging in the office shared by two supervisors.

On appellate review of the WCJ award of benefits, the court noted that the evidence presented did not support the findings of the WCJ.

The WCJ found the employee cried uncontrollably after a meeting with her supervisors regarding the noose incident.  Employee testimony reflected she cried after the meeting regarding the co-worker refusal to work underneath her, when operating the crane.

The 'noose incident" was described in supervisor testimony to be "a joke" among the two supervisors. The origin was that one was having a bad day and said if one more thing goes wrong," he was going to hang himself". His office-mate hung the noose, to break the tension.

Employee medical evidence was a four sentence letter from her psychologist. His notes did not reference the "N word" or "noose" incident He state her atypical depression was the result of "her stressful and overwhelming work conditions". The court concluded this letter was not substantial evidence in support of the WCJ conclusion. Employer medical evidence from Robert Charles Cohn, M.D. was rejected. Dr. Cohn concluded there work incidents did not contribute to her depression.

The Court concluded that the medical evidence presented did not prove Employee's mental injury was more than a subjective reaction to normal working conditions. Dissinger's reference to "stressful and overwhelming work conditions" was not substantial evidence that abnormal work conditions exist or that Employee's medical condition resulted from those working conditions.

Claim Affirmed.
In this case the WCJ awarded benefits, the Appeal Board affirmed and the Commonwealth Court reversed the award. On Employee appeal to the Supreme Court the decision was vacated and remanded back to the Commonwealth Court, in light of the Payes decision.
On remand, the Commonwealth Court affirmed the award [which was a reversal of its prior determination]. See: PA Liquor Control board v. WCAB (Kochanowicz), No 760 C.D. 2010, an en banc decision authored by Judge Cohn-Jubelierer on December 30, 2014.

This claim involved the manager of a retail liquor store. During an armed robbery, a gun was held to his head and he was bound to a chair. His treating psychologist, Brian S. Raditz, Ed.D., diagnosed PTSD and adjustment disorder with mixed anxiety and depressed mood.
Employer medical expert examination resulted in a similar diagnosis.

The WCJ found as a fact and concluded as a matter of law that the robbery at gunpoint was an abnormal working condition and the employee mental injury was a result of this abnormal condition.

Employee had training in regards to workplace violence, including training related to robberies and theft. There were 99 robberies in the area of this store since 2002, including a recent nearby armed robbery. This evidence was the basis for the initial Commonwealth Court reversal of the WCJ award, as they concluded that employee could have anticipated an armed robbery, therefore it was a normal condition of his retail liquor store employment.

On remand and in consideration of the Payes decision, the Commonwealth Court reviewed the history and standard for "mental injury".

In Payes the WCJ found that the state trooper received training and was exposed to vehicle accidents, bodily injuries, death, murder and violent acts, in the course of their work duties.
The WCJ found a state trooper was not normally exposed to a mentally disturbed individual running in front of his vehicle, for no apparent reason. This was an "extraordinary and unusual event".

The Supreme Court held that the WCJ finding that the employee's mental injury arose from a singular extraordinary event during his work shift was founded on substantial evidence of record. This factual finding supported the WCJ legal conclusion that the mental injury was caused by an abnormal working condition.

Practice Pointers:

1. These decisions highlight the importance of establishing precise facts via competent evidence. 
There must be sufficient evidence in the record to support a finding of fact and legal conclusion by the WCJ.

It is significant to note, that in these appellate decisions, the focus of the Supreme Court is ... that "the more fact intensive the inquiry, the more deference a reviewing court should give to the WCJ findings". 

2. The difficulty in assessment of mental injury claims is the Court's reasoning that, despite the Employer training provided and past experience with similar events, the employee may still experience "a singular extraordinary event" which causes an injury and which constitutes an abnormal working condition. 

IMO, this approaches a "subjective" standard, that is, a standard where the determination of what is abnormal/normal varies for a particular individual.

The difficulty ... we do not know which "event" will meet this  criteria. 
For example, a state trooper once struck a pedestrian ... that past experience did not make the subsequent incident a "normal" working condition.

3. "Abnormal working conditions need not be "unique" working conditions". 
Payes 79 A.3d at 556. 

... if that is so ... I'm having trouble with my conception of "abnormal". 
It seems to be a question of semantics. 

Friday, January 16, 2015

Impairment Rating Evaluation - How does an Employee Rebut the IRE?

Employee Rebuttal Evidence to the Impairment Rating Evaluation Remedy.

The 1996 Amendments to the Pennsylvania Workers' Compensation Act provided Employers and Insurers with a decisive remedy to limit the Duration of Total Disability indemnity wage loss benefit payments. Prior to the enactment of this remedy, the obligation for payment of total disability benefits could continue for the lifetime of the injured employee, unless altered by Agreement or Decision of the Workers' Compensation Judge.

Section 306(a.2) provides Employers with the remedy to seek modification of employee benefit status from (lifetime) total disability status to partial disability status of a duration of 500 weeks.
This change of status is accomplished through the scheduling of an Impairment Rating evaluation (IRE) by a designated physician of certain qualifications.

 An IRE may be requested after the payment of 104 weeks of total disability.

Employer must establish the impairment of the injured employee is less than 50% according to the AMA Guides to the Evaluation of Permanent Impairment.

How may the Employee rebut this decisive medical evidence?

Commonwealth of Pennsylvania/DPW Loysville Youth Center v. WCAB (Slessler), No. 99 C.D. 2014, a published decision of a panel of the Commonwealth Court of Pennsylvania, dated October 30, 2014,authored by Judge Brobson,  addressed this issue. 

Factual and Procedural Background

Employee sustained multiple injuries in September 2003, in the course of his employment at a youth detention facility. NCP reflected: "neck and right Achilles tendon strain". WCJ decision in 2006 amended to include "Post Traumatic Stress Disorder( PTSD) and chronic pain".

Litigation before WCJ included:
- 2009 Employee Review/Penalty petition for payment of an adjustable bed;
- 2009 Employer Modification based upon IRE of Michael Wolk, M.D. ;
- 2010 Employee UR petition, review Dennis W. Ivill, M.D. determination of
           Myra B. Tolan, M.D., pain specialist  treatments as "unreasonable & unnecessary".

Employee testified in regards to the review petition.
Dr. Tolan testified in challenge to the UR determination.
Dr. Wolk testified in support of the IRE modification petition.

Employee Medical Expert Evidence regarding IRE
David J. Longo, Ph.D, a licensed psychologist, testified he is familiar with the AMA Guides to the Evaluation of Permanent Impairment, which he uses in preparation for depositions.

On Cross-Examination on his qualifications he conceded:
- he is not licensed to practice medicine in the Commonwealth;
- he is not certified by any American Medical or Osteopathic Board;
- he does not meet the certification and training requirements established by the Department of Labor
  & Industry for performing IRE's;
- He was not trained or certified to use the 6th Edition of the AMA Guides.

Employer objected to Dr. Longo's qualifications as an expert.

Dr. Longo testified regarding his treatment, McGill Pain inventory testing, examination and assessment of Employee.
He opined there was little likelihood Employee would recover from his pain condition.

Dr. Longo performed "his own IRE" of Employee.
He testified regarding his methods and conceded he erred as he realized (after his review of Dr. Wolk's testimony!)  he used "mode" rather than "median" values in his impairment rating calculations!
Yet his reconsidered calculation resulted in an impairment of 54%.

Employer Medical Expert Evidence regarding IRE.
Michael Wolk, M.D. testified he is a licensed medical doctor with Board-Certification in Physical Medicine & Rehabilitation. He met the Department certification and training requirements for performing IRE's.
He testified regarding his consideration of Employee's diagnosed conditions.
The cervical spine condition constituted an impairment rating of 8%.
He explained, chronic pain associated with the cervical spine "had already been incorporated into" that rating figure.
PTSD median score was "0".
He identified the methodology errors of Longo in performing "his IRE".

WCJ IRE issues Decision.
Objection to Longo testimony was overruled.
Testimony was admissible and WCJ would weigh the opinion.
 "Due Process" concerns supported acceptance of Longo testimony as no certified IRE physicians reside in the surrounding counties.
Although Longo was neither "certified" nor a medical physician, the AMA Guides anticipate psychologists would use the guidelines.

WCJ concluded Wolk testimony was incompetent. Although Wolk referred to mental and behavioral guidelines applicable to a mental impairment rating, he failed to provide testimony indicating that "he adequately considered all of the guidelines and table set forth in the Guides..." . slip opinion page 9. 

Thus regarding the IRE, the WCJ concluded Employer failed to meet its burden ...
but WCJ also concluded, Employee failed to establish his impairment rating was between 53 - 58%.

WCJ Description of Injury issue.
WCJ unilaterally determined Employee suffers from: major depression; panic disorder; status post C5-6 fusion, as a result of the work injury.
WCAB reversed this expansion of the work injury description.
This was not an issue before the Commonwealth Court.

Commonwealth Court Decision
Employer appealed the WCJ IRE issue determination (affirmed by WCAB) that Employer did not meet its burden of proof of Employee reduced impairment.

 Employer Arguments: 
1. error to conclude Wolk testimony was not competent.
2. error to conclude Longo opinion refuted Wolk opinion, as Longo was not
    (i) a medical practitioner or
    (ii) certified to perfom IRE's.

Commonwealth Court Conclusions & Reasoning 

A. Wolk testimony was competent.
WCJ erred in relying upon Lookout Volunteer Fire Company dicta.
Lookout decision held a medical expert opinion is not competent where that expert was not familiar with facts surrounding injury.
HERE, WCJ based his "competency" determination, NOT upon Wolk's lack of understanding ...
Rather it was the WCJ lack of understanding of the means by which Wolk applied the Guidelines to the facts presented.
If Wolk failed to properly apply the guides to the facts, THAT is an issue for cross-exam and that would affect the weight or credibility of the testimony NOT its legal competency.
The WCJ erred.

B. Longo was not entitled to greater weight or "competency" (sic) over Wolk testimony.
Longo does not meet "Qualifications" of a physician performing an IRE [citing regulation 123.103].

Why? Longo is not a physician. He is not licensed. He is not certified by a Medical board.
Longo does not met the requirements of a medical expert to perform an IRE.

C. BUT, may his testimony be considered competent for the purpose of responding to Employer's medical expert IRE evidence?

NO. An employee seeking to respond to competent IRE medical expert evidence, must offer evidence of a similar quality and character, i.e., competent opinion evidence from a medical professional. slip opinion page 17.

This case was remanded, as the WCJ should consider only Wolks' testimony, when considering its competency and credibility. Longo should not be considered in this assessment.
The WCJ/WCAB order denying the Employer IRE modification was vacated.


1. This decision clarifies several points regarding the type and character of medical evidence the Employee may utilize in an attempt to challenge a successful IRE modification petition. 

The IRE Modification petition is a dramatic remedy as it may significantly change the Employee benefit duration, from "lifetime" to a limited duration of 500 weeks. 
For this reason, I believe we will continue to see appellate litigation of successful IRE petitions. 

2. The Employee rebuttal medical expert DOES NOT need to be certified and "on the Bureau list" of medical professionals approved to perform an IRE. 
[IMHO I believe this remains a valid argument ... for another day]. 

3. Employee rebuttal medical expert MUST be a licensed physician, Board-Certified, active in clinical practice.

4. NOTE, the "reason" the WCJ found the Employer IRE medical expert was  not competent...
the witness failed to provide testimony "he adequately considered all of the guidelines and tables set forth in the Guides". 

Response: although it may be laborious, present testimony as to the medical expert consideration of each chapter, each calculation method, each alternative evaluation. 

[note; i have not read the above transcripts, counsel may have presented sufficiently detailed testimony and this appellate record does reflect a great deal of detail ... however, note the Court says the WCJ substituted his own medical opinion ...when that occurs ... your well planned, documented case, does not succeed.

Query; Is it appropriate to have the WCJ attend the medical expert deposition and offer the witness for questioning by the WCJ ...