Thursday, April 21, 2016

Assessing Liability for "Separate" Disability- beyond the "Loss of Use" Injury

Assessing Disability beyond the Loss of Use Injury.

A work injury which results in a permanent bodily loss of use for all practical intents and purposes is compensated pursuant to the schedule of benefit durations enumerated at Section 306(c).

If the work injury includes disability beyond the loss of use, the injured employee is entitled to total disability benefits of an indeterminate duration, pursuant to Section 306 (a) ... to be followed by the payment of specific loss benefits.

The interaction of section 306(a) benefits (for total or partial disability) and 306(c) benefits (loss of use) is sometimes referred to as a "shield versus sword" situation. In certain circumstances the Employer desires the limitation of benefits to a specific loss schedule, rather than liability for total disability of an indeterminate duration. Conversely, the Employee may seek specific loss benefits where they have returned to work.

A recent appellate case demonstrates a number of legal concepts may interact when the scope of the "injury" and the extent of "disability" are contested...

Lindemuth v. WCAB (Strishock Coal Co.) a published panel decision of the Commonwealth Court of Pennsylvania authored by Judge Cohn-Jubelirer on February 24, 2016, analyzed the interrelated legal issues of: (1) an employee's entitlement to review/modify specific loss benefits to total disability benefit status, and (2) the application of the legal doctrine of collateral estoppel - to preclude Employee/Employer arguments regarding the extent/description of the work injury.

The lengthy litigation was reviewed in a comprehensive 28 page decision.
For our discussion, we will focus upon:

  •  the Employee arguments to expand the loss of use status to a total disability status;                  
  •   the Employer arguments that Employee's remedies were limited by the prior litigation result.

Factual and Procedural Background

Employee was injured in a 2005 battery explosion. Chemicals, battery acid and shrapnel resulted in injuries to the right eye, left eye and face. Total disability benefits were voluntarily commenced via Notice of Compensation Payable. The accepted work injury was described as: "right and left eyes, face ... shrapnel and chemical injuries to eyes and face"

Employee filed a Claim petition in 2006 to assert his additional entitlement to loss of use benefits for the right eye, 80% loss of use of the left eye and facial scarring. (eligibility for facial scarring is also addressed in the Section 306(c) Loss of Use provisions).

Employer filed a Review petition of Employee total disability status, arguing that the work injury was limited to the loss of use of the right eye and that employee did not suffer any disability separate from the specific loss of the right eye, so as to be entitled to a total disability benefit status.

 2009 WCJ decision

Employee proved he sustained a loss of use of the right eye.
Employee failed to prove there was disability separate and apart from the disability associated with that loss of use of the right eye.
Employee failed to prove there was a loss of use of the left eye or any related residual injury or disability.

Employee successfully established that the work injury resulted in headaches, which required medical treatment, but these headaches did not result in any disability separate and apart from the right eye loss of use.

Employee successfully established the development of a post traumatic stress disorder and an adjustment disorder, but these additional injury descriptions did not result in any additional disability separate and apart from the right eye loss of use.

This 2009 WCJ decision was affirmed by the WCAB and Commonwealth Court.

Employee filed the instant petitions in April 2011.
(before the 2012 Commonwealth Court decision).
Claimant petitions were filed for: Review Medical Treatment; Modify Compensation; Review Compensation; Review Pension Benefit Offset; Reinstate Compensation.

Same WCJ presided.
What did employee want?
Reinstatement of Total Disability benefits (unlimited duration) due to increased frequency, duration and intensity of head pain caused by the work injury. ( in other words, headaches as an additional disability separate and apart from disability usually normally associated with the loss of use of the right eye.

2013 WCJ decision

The original October 2005 work injury did not worsen since the time of the 2009 WCJ decision.
There was no proof of a "disability separate and apart " from the 2009 injury description.
The injury was not amended to include a trigeminal nerve injury.

Employee subjective reports of increased frequency and intensity of headaches were not causally related to the work injury. (The prescribed narcotic medication was not related).
There was no worsening of condition so as to create a disability separate and apart, from the loss of use of the right eye.
[Employee evidence was credible only in regards to an unappealed UR petition issue].

WCJ found Employee and his medical expert, Dr. Kratz not credible regarding a worsening of his condition. WCJ noted, Employee treating physician Dr. Wirth was not aware of any worsening of headaches. Dr. Wirth believed there was just a continuation of symptoms.

Drs. Kratz and Wirth medical opinions were based solely on Employee's subjective reports, they never observed increasing, severe headaches. WCJ resolved conflicting medical evidence, as there was a documented difference regarding the dosage of medications [a point pertinent to a "worsening argument].
However, Kratz did not find any difference on physical examination despite assertions of increasing headaches and worsening of Employee condition. WCJ's observations of Employee, from time of prior litigation to present, were said to reflect no indication of any significant change, although Employee did appear subdued.

Employer medical witness Dr. Richard Kasden was found credible. Employee's complaints were not consistent with a trigeminal nerve condition. (Medications for that condition was said to be ineffective).  Neurological examination and MRI scan of the brain did not show any objective evidence to support Employee's headache complaints.

WCAB Appeal by Employee

1. WCJ ruling that he did not have a trigeminal nerve injury AND no longer required headache treatment- was barred by the doctrine of collateral estoppel
2. WCJ findings were not supported by substantial evidence; the credibility determinations were insufficient.

WCAB concluded Employee was barred by the legal doctrine of collateral estoppel from raising the issue in the April 2011 petitions that he sustained a trigeminal nerve injury. The description of injury issue was fully litigated in 2009.
WCJ was not bound by his prior findings in the 2009 decision to now find a trigeminal nerve injury.
WCJ decision was supported by evidence.

[side issues: Employee appeal included an argument that WCJ erred in not awarding attorney fees and all litigation costs. WCAB upheld pro rata costs award, only costs on UR petition. A reasonable contest existed, no attorney fees were due. ]

Commonwealth Court Decision

General rule # 1. Injuries, including those that result in a loss of earnings, that normally flow from the specific loss injuries are considered compensated by the specific loss benefits. Citing: Sharon Steel (Pa. Cmwlth. 2002).

General Rule #2. If the injury suffered is separate and apart from a specific loss that results in a loss of earnings, a claimant may receive Section 306(a) total disability benefits or Section 306(b) partial disability benefits, in addition to the Section 306(c) specific loss benefits. Citing: Faulkner Cadillac (Pa. Cmwlth. 2003).

General Rule #3. A claimant seeking concurrent specific loss and disability benefits must prove that he/she has a disability separate and apart from that which normally follows a specific loss injury. Citing: Richardson (Pa. Cmwlth. 1997).

General Rule #4. If a claimant fails to prove a disability separate and apart from the loss of use, the disability benefits are considered suspended. However, in subsequent litigation, the WCJ has the authority (section 413(a)) to reinstate or modify Employee's benefit status, IF claimant proves his injury has worsened and results in a total disability.

I. Collateral Estoppel argument
Employee argued the WCAB erred in applying the collateral estoppel doctrine to conclude he was barred from arguing that his work injury included a trigeminal nerve injury.

Employee argued the WCAB erred by failing to conclude the WCJ was barred from finding his headaches were not causally related to his work injury, asserting the WCJ made a contrary finding in the 2009 decision.

The Court agreed.
In 2009 the WCJ found the work injury resulted in a trigeminal nerve injury. The 2013 decision was contrary. The doctrine of collateral estoppel would bind the WCJ to the 2009 finding. The Court reviewed the collateral estoppel argument criteria: The legal issue was the same; This issue was actually litigated; This issue was essential and material to the adjudication; The parties had a full and fair opportunity to litigate the issue in question. Citing: Stiles (Pa. Cmwlth. 2004).

However, this error by the WCJ is not relevant to the instant matter.

In the 2009 decision the WCJ found Employee suffered a trigeminal nerve injury as a result of his work injury. Yet in the 2009 decision Employee failed to proof there was disability, separate and apart from the specific loss of the right eye. Injury and disability are not synonymous in this instance.

In 2009 the WCJ found headaches were caused by the work injury but they did not constitute a disability, separate and apart from the specific loss.

In 2013 the issue the WCJ had to decide was whether the claimant suffered from a worsening of headaches, such that this (worsened) condition would now constitute a disability separate and apart from the specific loss. In 2013 the WCJ concluded that claimant failed to prove a change or worsening of his condition since the 2009 decision.

The 2009 litigation addressed the Employee request to include headaches as part of the work-related condition. The headaches were alleged to be caused by the 2005 trigeminal nerve injury.
That 2009 issue did not bind the WCJ on the 2013 issues ... as the 2013 issue was a different!
 In 2013 the WCJ was asked to consider the worsening of Employee's headaches as a separate disability. As these two issues are different, the doctrine of collateral estoppel did not apply, so as to restrict the WCJ in his 2013 conclusions.

II. Substantial Evidence Argument
Employee argued that substantial competent medical evidence did not support the findings authored by the WCJ in the 2013 decision.
The Court disagreed. There was substantial competent medical evidence (Dr. Kasden) to support the 2013 finding that Employee's headaches did not worsen, nor were the headaches disabling in nature. Conflicting evidence was presented in Claimant testimony, his wife's testimony and testimony of Drs. Katz and Wirths. However, it is well-established that the WCJ is free to accept the testimony of any witness, in whole or in part. This resolution of conflicting evidence by the WCJ is not an error of law, where there is supporting substantial evidence.

III. Reasoned Decision Argument
The WCJ must issue a reasoned decision as per the section 422(a) requirement that the decision "allows for adequate appellate review". In a case with conflicting evidence, the WCJ must adequately explain the reasons for rejecting or accepting competent evidence. Here, in the 2013 decision the WCJ provided adequate  reasons for crediting Dr. Kasden and for rejecting Employee evidence.

IV. Attorney Fee Argument
Claimant argued the WCJ should have awarded attorney fees payable by Employer, or at least a portion of the requested attorney fees, as he prevailed in the UR Determination Review petition. The Court rejected this argument. Here was not an unreasonable contest of the UR issue as Employer did not contest the UR issues. All of the remaining contested issues were decided in Employers favor. On this basis, it is correct to deny the imposition of attorney fees payable by Employer.


1. The compensation of a specific loss may be advantageous to the Employer, in the circumstances where the injuries are considered to normally flow from the specific loss. However, where there is disability, that is separate and apart from the specific loss, a claimant may receive indemnity wage loss benefits for total disability, in addition to the subsequent payment of specific loss benefits.

2. A competent credible medical opinion is required to address the "separate and apart" question. Further, an experienced medical examiner is necessary to address and explain the basis for a conclusion that the disability is limited to a specific loss. A credible explanation to the WCJ will support the necessary findings. Typically the parties can muster competent medical expert opinions, in support of their conflicting legal arguments. In my opinion, the logic and detail of the medical expert explanation may be a decisive factor in the WCJ assessment of credibility and the weight to be assigned to that medical evidence.

3. Application of the legal doctrine of collateral estoppel (and its first cousin, res judicata) may be confusing. In the long-standing workers compensation case, with multiple successive petitions, a careful analysis of the issues presented is required. Another related legal argument, which may arise, is the argument for a waiver of issues which were not preserved through out the litigation. When a workers compensation case presents with multiple petitions and a series of decisions,it is incumbent upon the Defense Counsel to identify the fully litigated issues and to identify the viable, undecided factual and legal issues.

A Best Practice would require the careful assessment of the factual and legal issues presented at the time the subsequent petitions are filed.  This legal assessment is not in the category of the quick "what do you think" telephone call. The above case demonstrates the importance of these legal arguments in obtaining a successful litigation and appellate result.

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