Monday, March 22, 2021

A Changing Work Injury description may defeat an attempt to Terminate Benefits.

 A Changing Work Injury description may defeat an attempt to Terminate Benefits.

A recent Commonwealth Court Memorandum decision highlights the difficulty of addressing  a Changing Injury Description during Termination Petition Litigation.

A Petition to Terminate benefits will be denied where the Employer medical evidence does not address the full extent of the work-related injury.

When a Petition to Terminate is filed, we sometimes observe a Petition to Review is filed in response – to  correct/amend/expand the description of the work related injury.

In the instant case, the Employer medical expert addressed the issue of the extent of the work related injury. However the WCJ did not find the employer medical evidence to be credible.

In City of Allentown, a Commonwealth Court decision affirmed a WCJ denial of an Employer’s Petition to Terminate benefits, as the Employer failed to prove that Claimant was fully recovered from the work-related injury. The description of the injury was amended/enlarged by the Workers Compensation Judge decision in the Termination petition litigation.

See: City of Allentown v. WCAB (Bryant, Jr.) No. 593 C.D. 2020, (March 11, 2021) a memorandum opinion authored by President Judge Leavitt.

SYNOPSIS OF DECISION

The Commonwealth Court affirmed the decision of the WCJ that Claimant’s work-related injuries exceeded what had been listed on the Notice of Compensation Payable (NCP). For this reason, the Employer failed to prove that Claimant was fully recovered from the work-related injuries, as described in the WCJ in his corrected injury description.  

The Employer medical expert addressed the question of any work-relation of the cervical disc herniations. He stated the neck pain and right shoulder pain were work related but had resolved. He believed the cervical disc displacement was not work related - but expressed the opinion- that he did not know the origin of that condition. This opinion of causation was not assigned credibility by the WCJ.

On appeal, the Employer multiple arguments were not persuasive -

(1)    Expansion of the work injury description to include cervical disc herniations violated Employer’s due process rights and,

(2)    also violated the three-year statute of limitations in Section 413;

(3)    WCJ erred in overruling Employer’s objection to the claimant medical evidence, which was the basis for revising the injury description;

(4)    It was an error to deny the termination petition as Employer proved Claimant had fully recovered from the “accepted” work injury;

(5)    Claimant’s medical testimony was equivocal

(6)    WCJ finding that Claimant was not fully recovered was not supported by substantial evidence.

Detailed Review of Commonwealth Court Decision

Background Facts

In City of Allentown, Claimant was injured on December 9, 2013 in the course of his duties as a firefighter. He felt right scapula pain while lifting a patient.  Employer issued a Medical-Only NCP describing this work injury as “upper back strain”.  Employer issued an amended NCP, describing the work injury as “acute strain to the thoracic spine”. Claimant was paid benefits until his return to work on July 3, 2014.  

A Petition to Terminate benefits was filed by Employer on August 22, 2018, asserting Claimant had fully recovered.  At the initial hearing, the WCJ and attorneys discussed the proper description of the work-related injury. The Commonwealth Court opinion recited this discussion, as it was relevant to their rejection of Employer’s arguments:

WCJ noted the first NCP, medical-only, described an “upper back” injury. In their discussions (off the record) he was advised the area of the body under discussion is “cervical” with possible symptomatology going into the “thoracic region”. 

WCJ: “So the upper back seems to be a fairly good way to describe it.  However, everyone is in agreement that we are also talking (about) the neck.  So we’re not being that specific about thoracic levels or cervical levels, we’re talking about neck and upper back area – does that fairly accurately summarize the discussions we had off the record about the body part(s) and the injury we’re talking about?  Employer’s counsel: Yes, Judge, it does. 

 

Employer Medical Evidence for Termination

Employer’s medical evidence was the independent medical evaluation (IME) report of Dr. Don Ko of December 28, 2017. Claimant was working full time, with continued right shoulder pain.  He reported good results with cervical epidural steroid injections.

Dr. Ko testified Claimant’s physical examination was unremarkable except for trigger point tenderness in the right paraspinal cervical muscles and right upper trapezius muscle; which he attributed to a “sprain/strain type of injury”. The cervical spine MRI of January 11, 2016 showed a disc protrusion at the C6-C7 level.

Dr. Ko opined Claimant suffered from neck pain attributed to the cervical strain and right shoulder pain attributed to the thoracic strain and right cervical disc displacement at the C6-C7 level.  The neck pain and right shoulder pain were work related but had resolved - - as a soft tissue injury would not last beyond six months. 

The cervical disc displacement was not work related.  Claimant’s right shoulder pain was not attributed to the right cervical disc herniation at C6-C7 - as herniation at that level would cause radiating pain in the arm and hand, not into his shoulder region.

On cross-examination, Dr. Ko agreed 2015 and 2016 cervical MRIs both showed a right-side disc protrusion at the C5-C6 level.  There were no medical records of any pre-existing condition or any other injury.  The Commonwealth Court opinion footnote recited testimony of Dr. Ko that he “did not know” the cause of trigger point tenderness noted at IME. 

 

Claimant Testimony & Medical Evidence

Claimant testified and described his medical treatment since the 2013 injury.  In 2016, as he continued to experience right scapular pain with radiation into his neck, he was referred to Dr. Wertz for cervical injections which reduced symptoms for three-four months.  

Claimant’s medical witness, Dr. Wertz, commenced treatment in February 2016 as Claimant complained of pain at the neck and right shoulder blade. Cervical MRI 2016 revealed two small disc herniations at C5-C6 and C6-C7.  Dr. Wertz believed these herniations caused Claimant’s pain and treated him with cervical epidural injections. Cervical MRI 2018 also showed disc herniations at the C5-C6 and C6-C7 levels.  These cervical herniated discs caused axial pain. Claimant’s complaints were consistent and matched the MRI results. He opined the disc herniations were caused by Claimant’s work injury from which he has not fully recovered.

Employer objected to Dr. Wertz’s testimony as he attributed Claimant’s right shoulder pain to the cervical disc herniations, which were not accepted in the NCP.  Employer asserted that Claimant was barred by a three-year statute of limitations in Section 413 from amending the description of injury to include the cervical disc herniations.

WCJ Decision

WCJ denied Employer’s termination petition based upon Claimant’s credible testimony that he continues to experience pain in the neck and scapular area which is relieved by cervical epidural injections.  The WCJ credited the testimony of Dr. Wertz over Dr. Ko.

WCJ found Claimant’s cervical disc herniations were work related based on Dr. Wertz’s testimony.  Conflicting testimony of Dr. Ko was rejected.  

WCJ found the work injury description in the NCP to be “materially incorrect” and amended it to include “annular tears/disc herniations at C5-C6 and C6-C7, from which claimant had not fully recovered”.  The WCJ stated this amendment more accurately described the “upper back strain” that Employer accepted in its medical-only NCP. 

WCJ rejected Employer’s statute of limitations argument on the basis that Section 413 authorizes an amendment of an incorrect NCP at any time.  WCJ overruled Employer’s objection to the testimony of Dr. Wertz.

Employer WCAB Appeal

WCAB held the WCJ did not violate Section 413 or Employer’s due process rights by amending the NCP.  Employer had notice the injury description was an issue. The WCAB concluded the WCJ acted within his discretion to credit Dr. Wertz’s testimony to find Claimant had not fully recovered from his work-related cervical disc herniations. 

Employer Commonwealth Court Appeal

Employer alleged several errors of law: (1) WCJ expansion of the work injury description to include cervical disc herniations violated Employer’s due process rights and (2) also violated the three-year statute of limitations in Section 413; (3) WCJ erred in overruling Employer’s objection to the testimony of Dr. Wertz, which was the basis for revising the accepted work injury described in the NCP; (4) Employer argued WCJ and WCAB erred in denying the termination petition as Employer proved Claimant had fully recovered from the accepted work injury; (5) Dr. Wertz’s testimony was equivocal regarding Claimant’s herniated cervical disc condition; (6) WCJ finding that Claimant was not fully recovered was not supported by substantial evidence.

Commonwealth Court Analysis

Review/Amendment of Injury Description

The Commonwealth Court began its analysis with a review of Section 413 which states, in part:

“… a Workers’ Compensation Judge may, at any time, review and modify or set aside a Notice of Compensation Payable  … in course of the proceedings under any petition pending before such WCJ, if it is proved that such Notice of Compensation Payable or Agreement was in any material respect incorrect.  

“… no Notice of Compensation Payable agreement or award shall be reviewed or modified or reinstated unless a petition is filed with the Department within three years after the date of the most recent payment of compensation made prior to the filing of such petition.”

The Court explained in its analysis, that an NCP may not be modified unless a petition is filed within three years of the most recent payment of compensation, but it may be “corrected at any time”. 

Previously, the Pennsylvania Supreme Court interpreted the first paragraph of Section 413 to mean that “corrective amendments” to an accepted work injury do not require a review petition.  Rather, the WCJ can order a correction where the evidence supports it.  See: Cinram Manufacturing Inc. v. WCAB (Hill), (Pa. 2009).

Due process requires that an employer be given a reasonable opportunity to contest a corrective amendment: “… moreover, the procedures applied by a Workers’ Compensation Judge must obviously comport with due process norms … and therefore reasonable prior notice and an opportunity to respond must be provided to the employer, prior to the implementation of a corrective amendment ….”. Cinram, supra.

In Cinram Manufacturing, the NCP described the work injury as a lumbar strain/sprain.  In the termination proceeding, claimant’s medical expert testified work injury was an aggravation of a pre-existing disc condition that caused nerve impingement.  The WCJ accepted that evidence  and amended the NCP to include nerve impingement. The termination was denied. The Supreme Court affirmed the WCJ’s corrective amendment as the medical experts addressed nerve impingement in their testimony.  Further, the employer did not specify what other evidence it would have presented had it been given express notice that claimant sought a corrective amendment.

The Court cited another similar result. In Walter, a WCJ amended a NCP in a termination petition proceeding to include left suprascapular neuropathy.  The WCAB reversed the WCJ as the employer did not have notice that the injury description was at issue.  The Commonwealth Court reversed and concluded the employer had adequate notice of the corrective amendment as it was announced at the first hearing and medical experts of both parties testified about the claimant’s chronic suprascapular neuropathy.  The Court concluded the employer had a fair opportunity to contest the corrective amendment, as it was unclear what additional evidence the employer could have presented.

In the instant case - the City of Allentown issued both the medical-only NCP and the NCP which described the work injury as an acute strain of the upper back and thoracic spine.  However, Claimant was treating for cervical pain and Employer paid for cervical epidural injections.  At the first hearing, the WCJ and parties agreed they were dealing with Claimant’s neck and upper back area.  Also, Employer’s medical expert testified Claimant’s work injury involved a neck strain, but he opined the herniated cervical discs were not work related. Employer cross-examined Claimant’s medical witness on whether the work injury included cervical disc herniations.  Again – it is unclear what other evidence Employer would have presented had it been given notice of a corrective amendment.  For these reasons, the Commonwealth Court concluded the employer had a fair opportunity to contest the corrective amendment to claimant’s NCP in this case.

Three-Year Statute of Limitations Argument

The Commonwealth Court rejected the Employer’s argument that the three-year statute of limitations in Section 413 requires a different result.  Citing: Fitzgibbons v. WCAB (City of Philadelphia) (Pa.Cmwlth. 2010).

The Court explained the first paragraph of Section 413 applies when a party is seeking to correct an NCP. The second paragraph applies when a party is seeking to expand the description of the work injury to include consequential injuries, i.e., injuries that occurred as a result of the work injury after issuance of the NCP.  

In either case, a petition must be filed within three years of the most recent payment of compensation.  In the instant case, the WCJ decision corrected the NCP injury description based upon evidence presented in litigation of the termination petition.  The Court noted the WCJ is allowed to do so “at any time … in the course of the proceedings under any petition pending … if it is proved that such Notice of Compensation Payable … was in any material respect incorrect”.  Citing Section 413; 77 P.S. § 771.

The WCJ corrective amendment of the NCP - to include cervical disc herniations - did not violate Section 413 of the Act or the Employer’s due process rights.  The WCJ appropriately allowed Dr. Wertz’s testimony that the work injury involved more than an acute strain of the upper back and cervical spine.

Substantial Evidence Argument

The Court rejected Employer’s argument that substantial evidence does not support the WCJ finding that cervical disc herniations were part of the 2013 work injury.  Employer argued the termination petition should have been granted as Dr. Ko testified that cervical disc herniations would cause radiating pain, which Claimant did not have.  Dr. Ko testified that claimant had fully recovered from injury listed on NCP. 

However, Dr. Ko did not contest the MRI findings of cervical disc herniations.  Claimant argued Dr. Ko’s testimony - that claimant had fully recovered from the work injury is not supported by his IME results.  There was no evidence of a pre-existing condition or an intervening event. The Court concluded the WCJ did not err in crediting Dr. Wertz’s testimony. 

Dr. Wertz testified that complaints of pain correlated with the MRI findings and have been consistent since 2016. Cervical disc herniations were caused by the 2013 work injury as there was no evidence of any other trauma. The WCJ credited the testimony of Dr. Wertz over Dr. Ko and that is the prerogative of the finder of fact.  The WCJ determines the credibility of witnesses and the weight to be accorded evidence. Citing: Casne v. WCAB (Stat Couriers Inc.), (Pa.Cmwlth. 2008).

The Commonwealth Court repeated the often-cited principle that a substantial evidence analysis - is not whether there is evidence in the record which supports a finding contrary to that made by the WCJ - but rather, whether there is any evidence which supports the WCJ’s factual finding.  Citing: Hoffmaster v. WCAB (Sunoco Products Inc.), (Pa.Cmwlth 1998). 

An Appellate Court must view the evidence in the light most favorable to the party that prevailed before the WCJ. The Court concluded there was substantial evidence to support the WCJ finding Claimant had not fully recovered from the 2013 work injury which included cervical disc herniations. 

The Court concluded the WCJ was empowered under Section 413 of the Act to amend the description of claimant’s work injury - where the evidence proved that the NCP was materially incorrect.  Employer had a fair opportunity to contest the corrective amendment.

Substantial evidence supported the WCJ’s findings that Claimant sustained cervical disc herniations in the 2013 work injury and had not fully recovered from those injuries.  As such, the WCJ did not err in amending the NCP to include cervical disc herniations.

Best Practices Recommendations:

  1. Before the scheduling of an IME appointment – confirm the description of work-related injury to be addressed by your medical expert -

a.       Was the injury description is amended by subsequent Agreement?

b.      … by Subsequent WCJ decision?

c.       … or by subsequent actions – paying for the medical treatment?

  1. Obtain all medical records of treatment to assess the presence/absence of any other condition or event that could cause the symptoms under review.
  2. Identify to the IME expert – any disputed issues regarding causal relationship of any medical conditions to be addressed in the IME report.
  3. Consider a pre-IME medical records review to address any medical causation issues.

The City of Allentown decision highlights the unpredictable nature of litigation. The Employer presented medical expert evidence which addressed the causation issues … but the WCJ did not find that evidence to be credible.

 

Sunday, February 28, 2021

Best Practices for Utilization Review when a Provider "supervises" adjunctive medical treatment modalities.

A Utilization Review Request is a valuable and necessary remedy for Employers and Insurers in the handling of Pennsylvania work injury claims. 

Proper UR filing requires proper identification of the "Provider under Review".

When multiple medical treatment regimens are provided -  the identification of the "provider" may become confusing. A recent appellate decision addressed this issue and provided valuable guidance. 

Daisy Rodriguez, M.D. v. WCAB (First Group America) No. 520 CD 2020 Memorandum Opinion (opinion not reported) filed February 10, 2021.

Daisy Rodriguez, M.D. (provider) filed a Petition for Review to the Commonwealth Court from an adverse ruling by the Workers’ Compensation Appeal Board (WCAB). The WCAB affirmed the Decision of the Workers’ Compensation Judge, which held that certain medical treatments to Claimant for his work-related back injury were were not reasonable or necessary after January 2, 2018.  On appeal, the Commonwealth Court rejected the Provider’s argument that First Group America (Employer) did not meet its burden of proof.

Claimant was involved in a motor vehicle accident in his position as a bus driver on September 22, 2017.  Shortly thereafter, he commenced treatment with the Provider.  The Employer issued an amended Notice of Temporary Compensation Payable (NTCP) describing the work injury as “a low back sprain or tear”.  A Subsequent NTCP described the work injury as “low back inflammation”. 

The Employer requested a Utilization Review of “any and all treatment including but not limited to acupuncture, cupping, moxibustion, and crunches " provided to Claimant from January 2, 2018 and thereafter, under the provider’s prescription and supervision.

NOTE: moxibustion is a form of acupuncture where a small intense heat source is placed on certain acupuncture meridians in order to stimulate the flow of “chi life energy”.  Cupping is a procedure used to drain excess fluids and toxins.

The Utilization Review Organization Report of review of Claimant’s treatment was authored by Dr. James Wasson on April 3, 2018.  Dr. Wasson concluded that the Provider’s medications and monthly evaluations of claimant were reasonable and necessary as of January 2, 2018 and for six months thereafter.  However, Dr. Wasson concluded that acupuncture, chiropractic care and physiatric care provided to Claimant were not reasonable and necessary as of January 2, 2018.  Dr. Wasson explained that Claimant received 62 separate acupuncture treatments and frequent physical therapy and chiropractic treatments, all of which “had limited, if any, long-term benefit”.

Provider filed a timely Utilization Review petition and the WCJ conducted a de novo hearing.  Employer has the burden of proof in this proceeding.  Employer submitted the Utilization Review report of Dr. Wasson. Also, Employer submitted the independent medical evaluation report of Dr. Christopher Selgrath, D.O., dated July 12, 2018.  Dr. Selgrath found that Claimant had full range of motion in his cervical and lumbar spine. Examination of both upper extremities was normal.  Dr. Selgrath opined Claimant had fully recovered from the work-related injury and required no further treatment.  Employer submitted Provider’s physical capacities evaluation, which released Claimant to sedentary work with restrictions as of December 7, 2017.  

In support of the Utilization Review petition, Provider presented testimony and documentary evidence.  Claimant testified he began treating with the Provider within a week of the injury.  He received the aforementioned treatment modalities, together with massage therapy and stretching exercises.  He said he found these treatments to be helpful, explaining they reduced his pain.  When asked about the acupuncture, he responded it helped his low back a lot and his neck and the pain was a lot lighter, milder by January.

Provider issued a narrative report which reviewed her treatment plan for chronic pain management and functional maintenance.  She did not believe a cure or even significant improvement in function were reasonable expectations - given the severity of Claimant’s condition.  She opined the medications and therapies at issue were reasonable and necessary for control of Claimant’s moderate-to-severe pain.  

The WCJ denied Provider’s Utilization Review petition and credited Dr. Wasson’s opinion that Claimant’s chiropractic, acupuncture and physiatric care were not reasonable and necessary after January 2, 2018.  The WCJ found that Dr. Wasson’s opinion was confirmed by the fact that Claimant ended these treatments.  The WCJ also credited Dr. Selgrath’s opinion that claimant did not need any further treatment as of July 12, 2018 (the date of the IME).  The WCJ did not credit the testimony of Claimant where it differed from the opinions of Dr. Wasson and Dr. Selgrath.  The WCJ noted that Claimant returned to work on a full-time basis on November 6, 2017 and he did not testify as to any difficulties performing his job duties, notwithstanding his Provider’s work restrictions.  The WCJ did not credit Provider’s opinion, noting she recommended continued treatment even though Claimant had discontinued her recommended course of treatment on his own.

In Provider’s appeal to the WCAB, she argued that Dr. Wasson’s opinion was legally defective and in part invalid.  She argued it was improper for Dr. Wasson to conclude prescription medications and monthly evaluations would become unreasonable at a point six months into the future. She also argued that Dr. Wasson opined on treatment rendered by providers whose services were not under review and who have licensure and qualifications not held by Dr. Wasson.  

The WCAB affirmed the WCJ and explained that the issue of reasonableness and necessity of treatment six months after January 2, 2018 was now moot as Claimant discontinued treatment with the provider at the end of April of 2018. 

Regarding Provider’s argument that Dr. Wasson’s review of treatment by professionals not named in the Utilization Review request - the WCAB noted that provider had prescribed these therapies and they were administered at her office. further, the Provider had certified that these prescribed treatments were reasonable and necessary.  The WCAB reasoned that if Provider was competent to prescribe and supervise acupuncture, moxibustion, cupping, and chiropractic treatment, then Dr. Wasson was competent to review that treatment and determine whether it was reasonable and necessary.  The WCAB concluded that the opinions of Dr. Wasson were substantial competent evidence that supported the WCJ Decision to deny the Provider’s petition for review of the utilization review determination.

On Provider’s appeal to the Commonwealth Court, Provider raised three issues.  First, she argued that Employer’s utilization review petition failed to identify the separately licensed acupuncturists and chiropractors as required by 34 Pa. Code § 127.452(d).  Second, she argued that the WCJ erred in relying on Dr. Wasson’s report, because he was not a licensed acupuncturist or chiropractor.  Third, Provider argued that the WCAB exceeded its scope of review by introducing issues not before it.  

The Commonwealth Court affirmed the Decision of the WCAB and WCJ.  The Court reviewed Section 306(f.1)(6) of the Workers’ Compensation Act that establishes the procedure for resolving disputes about whether treatment of a work injury is reasonable and necessary.  Subparagraph 306(f.1)(6)(i) includes the requirement:

 “utilization review of all treatment rendered by a healthcare provider shall be performed by a provider licensed in the same profession and having the same or similar specialty as that of the provider of the treatment under review”. 

The Commonwealth Court referenced the regulations adopted by the Bureau of Workers’ Compensation regarding Utilization Review.  Regulation Section 127.452(d) states that:

“the request for UR shall identify the provider under review.  Except as specified in subsection (e), the provider under review shall be the provider who rendered the treatment or service which is the subject of the UR request". 

Subsection (e) reads as follows:  

"when the treatment or service requested to be reviewed is anesthesia, incident to surgical procedures, diagnostic tests, prescriptions or durable medical equipment, the request for UR shall identify the provider who made the referral, ordered or prescribed the treatment or service as the provider under review".  (emphasis supplied) See: 34 Pa. Code § 127.452(e). 

Provider argued that § 127.452(d) required the Employer to identify the separately licensed acupuncturists and chiropractors as the "provider" under review in its UR request. She offered this argument as she did not administer those treatments.  

In response to this argument, the Commonwealth Court cited its decision in MV Transportation v. WCAB (Harrington), 990 A.2d 118 (Pa. Cmwlth. 2010).  In that case, that employer requested a Utilization Review of a claimant’s physical therapy and identified one licensed physical therapist as the provider under review. The Court held this wass proper as the employer did not need to identify each individual physical therapist as a separate provider when seeking review of a course of physical therapy treatment.  “… it made little sense to request a separate review of each therapist providing treatment under the direction of the same physician”.  (page 122-123).  

The MV Transportation decision reversed the underlying WCJ Decision and concluded that when making a UR request for physical therapy prescribed by a doctor and administered in that doctor’s facility under his or her supervision, the employer must name the doctor prescribing the physical therapy and the facility where the claimant receives that treatment.

The Court analogized the MV Transportation case to the present situation where the challenged course of treatment was carried out by acupuncturists and chiropractors acting under the provider’s supervision in her office.  In her report, the Provider stated that she examined Claimant on a monthly basis to determine if she needed to change any of his treatment. Provider stated that Claimant required supervised therapies to assure compliance with her prescription for palliative care.  Although the MV Transportation case dealt with one type of treatment - physical therapy - and where the present case deals with a variety of treatments - nevertheless, the logic of MV Transportation applies.  

The Court held that the Employer does not need to name each chiropractor and each acupuncturist as the “provider” must seek a review of the claimant’s course of care.  The Court found this to be consistent with § 127.452(e) which does not require each provider to be named in a UR request where a “prescription” for treatment or services under review.  In the present case, the Provider under review, not only prescribed but also supervised the Claimant’s entire treatment regimen.  Stated otherwise, the provider arguably “rendered” the “service” which was the subject of the utilization review request. As the Provider supervised Claimant’s entire treatment regimen, it was not necessary for the Employer to file UR requests for each provider of treatment.  By filing a UR request identifying a provider as a "provider under review" rendering the challenged treatments, this Employer satisfied the requirements of § 127.452(d). 

The Commonwealth Court rejected the Provider’s second argument that the WCJ erred in relying upon Dr. Wasson’s UR report because he did not have qualifications to render an opinion on treatment provided by licensed chiropractors and acupuncturists.  The Commonwealth Court referenced its prior decision in Leca v. WCAB (Philadelphia School District), 39 A.3d 631 (Pa. Cmwlth. 2012) where the employer filed a UR request with respect to a claimant’s ongoing chiropractic care and the employer offered the opinion of an orthopedic surgeon who concluded that chiropractic care six times per week could not be justified given the lack of improvement in claimant.  This Commonwealth Court decision affirmed the Decision of that WCJ, relying upon the general rule that a physician is competent to testify in specialized areas of medicine even though the physician is neither a specialist nor certified in those fields.  It was not an error for the WCJ to consider the opinion of an orthopedic surgeon when considering a challenge to the reasonableness and necessity of chiropractic treatment. 

In the case sub judice, Dr. Wasson is a medical doctor licensed in internal medicine - as is the Provider.  The Court noted that in the review of a Utilization Review Determination pursuant to § 306(f.1), the Workers’ Compensation Judge is obligated to consider the UR report as evidence but is not bound by the report.  Thus, the WCJ is authorized to consider the opinions of Dr. Wasson. The weight and credibility to be assigned by the WCJ to Dr. Wasson’s UR report - as with any other evidence - is for the factfinder.  Issues as to the weight and credibility of evidence belongs to the Workers’ Compensation Judge.  

Here, the Employer met its burden of proof in the instant Utilization Review as the WCJ credited the opinions of Dr. Wasson and Dr. Selgrath, concluding that the challenged treatment was not reasonable and necessary. 

The third argument of Provider was that the WCAB improperly introduced an issue into this appeal - as the WCJ decision did not address the Provider's challenge to the validity of the determination of Dr. Wasson - so the Board erred in addressing that issue.  The Court noted that Provider challenged the validity of the UR determination, the fact that the WCJ did not specifically address the legal argument regarding separately licensed professionals, did not preclude the Board from addressing that same argument on appeal, as the Provider raised that argument.  

The Court held the WCJ made the credibility determinations necessary to his conclusion that the course of treatment prescribed by the Provider to treat Claimant’s work injury was not reasonable and necessary.  On this basis, the WCAB did not exceed its scope of review by addressing the Provider’s arguments about the invalidity of the UR determination.

Recommendations:

When filing a UR Request, carefully review the medical treatment records and billing statements to identify the prescribing healthcare provider. Is the prescribing provider also providing or supervising the care? 

Or is the treatment referral to an independent healthcare provider?  The identification of the provider may change the "provider under review". 

When in doubt, review this issue.

Monday, February 1, 2021

An Employee is required to give "timely" notice of a work injury to the Employer

An Employee is required to give "timely" notice of a work injury to the Employer 

The Employee notice of the occurrence of a work-related injury is an essential element of one's burden of proving a compensable claim.

Section 311 of the Act provides " no compensation shall be due until such notice be given and unless such notice be given within 120 days after the occurrence of the injury, no compensation shall be allowed.

Recently a question arose as to the calculation of the 120 day time period for proper notice of injury to the employer. In Holy Redeemer Hosp. Systems v. WCAB (Figueroa), Pa. Cmwlth. No. 372 C.D. 2020, December 31, 2020, the Commonwealth Court affirmed the decision of the WCAB. The WCAB affirmed the decision of the WCJ that Claimant sustained her burden of proof of all of the elements of her claim petition, but the WCB reveresed the conclusion of the WCJ that Claimant failed to provided timely notice of a work injury to the Employer.

The pertinent facts reflect the Claimant worked on July 25, 2015, as an emergency room nurse. She experienced significant pain in her leg, which increased over the course of her work shift.  She took off her next scheduled work day and visited her physician . He took Claimant off work. On Monday November 23, 2015, Claimant notified the Employer that she sustained a work injury on July 25, 2015. 

She gave notice of her work injury on the 121st day after her work injury, which was a Monday.  The Employer issued a NTCP, followed by a Notice Stopping an a Notice of Denial.

This legal issue arose as Monday July 25, 2015 was the 121st day after her alleged work injury. The 120th day fell on a Sunday. Why was Claimant's notice of a work injury on Monday considered "timely" ? Section 1908 of the Statutory Construction Act of 1972, provides the correct answer to this question. which states as follows:

 "When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title  (relating  to  publication  for successive  weeks)  and  section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period.  Whenever the last day of any such period shall fall on Saturday or Sunday, or any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

In the case sub judice, when the 120th day to give notice of her work injury under Section 311 of the Act falls on a Sunday, her notice of injury on Monday was timely. Employer's appeal was limited to the notice issue. The Court rejected the Employer argument that the language of Section 311 is not ambiguous, therefore the WCAB erred by applying the Statutory Construction Act. 


 


 


Monday, December 14, 2020

2021 Pennsylvania Workers' Compensation AWW, Max TTD indemnity rate and Medical Expense percentage increase.


NOTE: This information will be published in the December 26, 2020 Pennsylvania Bulletin:

For injuries occurring on or after January 1, 2021, the statewide Average Weekly Wage (AWW) will be $1,130 .00.  This is an increase from the 2020 rate of $1,081.00.

For medical treatment rendered on or after January 1, 2021, the increase in fee schedule-tied payments will be 4.6%, up from 3.1%.

The 2021 Statewide Average Weekly Wage Workers’ Compensation Rate Schedule has been approved by the Secretary of Labor and Industry and it will be published in the PA Bulletin on December 26, 2020. We offer advance notice of the schedule at this time so that our stakeholders may initiate any updates to their operating systems that rely on this calculation. A comparison with last year’s table is included for reference. The following notice has been prepared for our Press Office to update the L&I website when the wage and rate schedule has been published in the PA Bulletin:

Pursuant to the Workers’ Compensation Act, Section 105.1, the Department of Labor & Industry has determined the statewide average weekly wage for injuries occurring on and after January 1, 2021, shall be $1,130.00 per week. For purposes of calculating the update to payments for medical treatment rendered on and after January 1, 2021, the percentage increase in the statewide average weekly wage is 4.6 percent.

The maximum weekly rate as of  January 1, 2021 will be  $1,130.00.

Monday, August 31, 2020

Continuing Challenges to the Employer Right to an Impairment Rating Evaluation of an Injured Employee

 The Impairment Rating Evaluation remedy in the Pennsylvania Workers Compensation Act

In 1996, Pennsylvania Employers and Insurers were provided a remedy to limit the duration of total disability benefits via an Impairment Rating Evaluation (IRE). This 1996 Amendment to the Pennsylvania Workers Compensation Act was declared to be an unconstitutional delegation of legislative authority by the 2017 PA Supreme Court decision at Protz.

The PA General Assembly enacted Act 111 on October 24, 2018 , to replace the unconstitutional provisions with nearly identical language at section 306(a.3), which was effective immediately. A significant difference was that an IRE must be conducted utilizing a specific edition of the AMA Guides, the 6th edition, second printing April 2009. (Eliminating the flawed "most recent edition" language)

However ... challenges to the "new" IRE provisions continue ... including a challenge to the constitutionality of the new language.

These legal challenges often result in claimant legal counsel advising the Employer/Insurer that their client will not attend a scheduled IRE appointment. Their response results in the filing of an Employer petition to Compel an Expert Evaluation. When assigned to a Workers' Compensation Judge, at the time of hearing, an injured worker is often ordered to attend an IRE appointment. Most frequently this is accomplished via a final order.

In an unpublished Memorandum opinion, the Commonwealth Court addressed a Workers’ Compensation Judge’s Order to Compel an injured worker to attend an Impairment Rating Evaluation, in Cantonese v. WCAB (RTA Services Company Inc.), 1739 C.D. 2019, Memorandum Opinion by Judge Covey filed June 12, 2020. 

The basis facts are not disputed. Employee was injured on December 11, 2013 in a work-related injury.  He received workers’ compensation benefits pursuant to a Notice of Compensation Payable. On January 31, 2019, Employer filed a petition seeking to compel claimant’s attendance at an impairment rating evaluation (IRE).  Employer alleged that employee failed to attended an IRE that was scheduled for January 28, 2019. 

The Workers’ Compensation Judge granted the Employer petition on May 3, 2019.  Employee appealed that decision to the WCAB, arguing that the Workers’ Compensation Judge erred by ordering him to appear at an IRE because Act 111 of 2008 was unconstitutional.  On November 5, 2019, the WCAB quashed employee’s appeal as interlocutory.  Employee appealed to the Commonwealth Court. 

In the decision to affirm the WCAB, the Commonwealth Court cited the well-established principle that “where an order does not dispose of all claims or all parties, it is interlocutory and not appealable to this court”.  Citing: Swartz v. WCAB (Cheltenham York Road), 869 A.2d 35 (Pa.Cmwlth. 2005).

“Furthermore, this court has held that an order directing a claimant to submit to a medical examination is interlocutory.”  Groller v. WCAB (Alstrom Energy Sys.), 873 A.2d 787 (Pa.Cmwlth. 2005). 

In Groller, the Court explained:“Because the IRE order merely stated that the claimant was required to participate in the IRE and neither affected the claimant’s benefits nor affected the employer’s obligation to pay benefits, the IRE order was a non-appealable, interlocutory order.  Because the IRE order is interlocutory, it is not a final order …. “ 

In the instant case, as the order on review before the WCAB was the Workers’ Compensation Judge’s order directing employee to appear for an IRE, the WCAB correctly concluded that employee’s appeal was interlocutory and it properly quashed employee’s appeal.  For these reasons, the Commonwealth Court affirmed the decision. 

This is not a new, ground-breaking ruling. Rather this result follows the similar reasoning in Watson v WCAB (Hillsberg) April 15, 2020. However, these decisions are offered as a reflection of the trend in rulings by WCJ's, the WCAB and Commonwealth Court.

Friday, July 20, 2018

Claimant Reinstatement of Total Disability Post-Protz decision

Injured Employee Remedy for Reinstatement of Total Disability Status after the Pennsylvania Supreme Court decision in Protz

Synopsis

An injured employee may file a Petition for Reinstatement of total disability benefits after receiving 500-weeks of wage loss benefits for partial disability status pursuant to an Impairment Rating Evaluation (IRE).  The petition is timely if it is filed within three (3) years after the last payment of partial disability benefits.  The injured employee must prove that he/she is totally disabled.  Medical evidence is not required to meet this burden of proof.  Injured employee testimony alone may support a finding of total disability status. However that testimony must be found to be credible by the workers’ compensation judge. 

The reinstatement of total disability status is effective as of the date of the filing of the reinstatement petition. Note, the Commonwealth Court specifically stated this decision does not resolve the question of whether the Supreme Court decision in Protz would apply in the same manner to cases where the last payment of partial disability benefits was made more than three years before the filing of a reinstatement petition. 

See: Whitfield v. WCAB (Tenet Health System Hahnemann LLC) 608 C.D. 2017 filed June 6, 2018.

Whitfield Decision Review & Rationale

The Commonwealth Court decision reviewed the historical background of the litigation of the constitutionality of the impairment rating evaluation provisions.  The court reviewed its 2015 decision (Protz I), which found the impairment rating evaluation provisions were unconstitutional, as they were an improper delegation of legislative authority.  However, the Commonwealth Court preserved the IRE remedy and required utilization of the Fourth Edition of the AMA Guides, as that was the AMA edition in effect when the legislature enacted the Section 306(a.2) remedy.

The 2017 Supreme Court Decision, (Protz II) held the IRE procedure was unconstitutional, in its entirety, as a delegation of legislative authority and the offending language - reference to use of  "the most recent edition" of the AMA Guides - could not be severed, so as to preserve a remedy using the 4th Edition of the AMA Guides. 

The PA Supreme Court decision was silent as to the retroactivity of it's decision. 
Did this ruling apply only to cases which were pending on appeal? 
Did it apply to all IRE cases since 1996?

Post-Protz l - Commonwealth Court IRE decisions 

The Commonwealth Court reviewed decisions of the court issued post-Protz l and before the PA Supreme Court decision (Protz II). The value of this review is to identify prior case holdings and legal arguments which no longer apply in the assessment of IRE issues.

For example, in Winchilla the Commonwealth Court decided a worker could not proceed with an appeal to the challenge to the constitutionality of his IRE as the worker did not raise the delegation of legislative authority argument. 

In Riley the Commonwealth Court held the worker had a period of 60 days to appeal an IRE determination. Riley filed an IRE challenge in her appeal of a Review NCP petition, more than 10 years after the IRE determination. She waived her right to challenge the constitutionality of that IRE. (see also Gillespie l).

In Beasley, a worker could proceed with an IRE challenge, where the appeal of the change of the workers status was pending when Protz l was decided. When the worker raised this issue for the first time on WCAB appeal, this was held to be the first opportunity for worker to raise this issue.

In  Mazuruk the worker was in the process of appealing his 2012 IRE when Protz l was decided. That challenge was timely.

Whitfield - Factual Background

In Whitfield the worker was injured in 2002 and underwent an IRE in 2006.  The WCJ issued a decision to modify the worker’s disability status from total to partial as of the date of the IRE.  The Appeal Board affirmed that order.  The parties stipulated the issue of the constitutionality of the IRE procedure was not raised before the WCJ or WCAB by Whitfield.  There were no further appeals. 

Whitfield received her last partial disability benefit in July of 2015.  In November of 2015, just after the Commonwealth Court Decision in Protz I, Whitfield filed a Petition for Reinstatement to total disability status.  

WCJ denied the Reinstatement Petition reasoning: (i) the Protz I Decision did not expressly void all prior IREs or state that its decision applied retroactively; (ii) only pending matters were entitled to a benefit in the change of the law; (iii) constitutionality of the IRE process was not raised or preserved in the underlying litigation.  The WCAB affirmed the Reinstatement Petition denial, primarily based upon the argument that the injured worker did not raise a challenge to the constitutionality of the IRE.  The 2009 WCAB Order was not appealed to preserve those issues. 

In the Whitfield analysis, the Commonwealth Court did not rely upon its prior decisions - whether the claimant preserved the constitutionality issues or whether the claimant appealed the IRE Determination within 60-days (Riley).  The Court explained that their decisions predate Protz II, so they were decided before Section 306(a.2) was struck down in its entirety as unconstitutional.  “Thus, reliance on the time requirements set forth in Section 306(a.2) establishing when an IRE must be challenged has been undermined”. (slip op. p.18).

Thompson was one of the first cases decided by the Commonwealth Court after the Supreme Court decision in Protz II.  Thompson was in the midst of litigating the merits of her 2005 IRE change in status when Protz I was decided.  Although Thompson had not challenged the constitutionality of the IRE before the WCJ or WCAB, she did so in her Petition for Review to the Commonwealth Court.  The Court rejected arguments that Thompson should have barred from raising this issue on appeal, noting “claimant raised this issue at the first opportunity to do so”. Thompson 168 A.3d 412.

In Bradosky, claimant challenged the constitutionality of the 2012 IRE and continued to do so throughout the appeal process.  The Commonwealth Court reversed the WCAB decision and affirmed the WCJ modification of Bradosky status to total disability as he had preserved the constitutionality issue throughout the litigation. 

In Whitfield the Court began its analysis with a review of the Reinstatement petition Section 413(a) which states that a WCJ may at any time modify, reinstate, suspend, or terminate an NCP, Supplemental Agreement, or WCJ Order, upon proof that the disability of an injured employee has increased, decreased, recurred, or has temporarily or finally ceased… provided… a petition is filed within three years after the date of the most recent payment of compensation made prior to the filing of such petition.

Whitfield decision reviewed the two remedies of Section 306 to modify the benefit status of an injured worker.  The first is the earning power assessment remedy of Section 306(d)(2). This is based upon a change in earning power established via vocational expert evidence.  The second remedy was the IRE procedure at Section 306(a.2).  This change in status was made without regard to any change in the claimant’s earning power. 

As the modification of total disability status to partial disability status based upon an IRE was not based upon a change in earning power, there is no reason why the term “disability” in Section 413(a) governing the reinstatement from partial to total disability should be restricted to the traditional definition of earning power (Slip Opinion p.24) The court discusses this “earning power” distinction underlying these two remedies to support its analysis that a section 413(a) reinstatement should not be restricted to the “traditional” definition of earning power.

Post-Protz Reinstatement Burden of Proof

A significant element in the Commonwealth Court analysis is its analogy that the post Protz claimant seeking reinstatement of total disability benefit status is more akin to a claimant seeking reinstatement of benefits from suspension rather than the claimant seeking reinstatement of benefits after a termination.  

In the IRE case there was no allegation that the claimant’s disability had ceased.  The Supreme Court Decision in Latta was referenced for it's holding that a suspension status actually acknowledges a continuing medical injury.  This portion of the analysis is the set-up for the assessment of the claimant’s burden of proof in a Protz reinstatement.  “In situations where benefits were suspended a claimant is only required to demonstrate that the reasons for the suspension no longer exist”. Citing: Pieper.

A claimant is not required to demonstrate with medical evidence that the work related injury giving rise to the benefits continues, a claimant’s testimony to that effect satisfies the claimant’s burden of proof.  Citing: Latta. 

Once the claimant testifies that his/her prior work related injury continues, the burden shifts to the employer to prove the contrary.  Where an employer fails to present evidence to the contrary, the claimant’s testimony, if believed by the WCJ, is sufficient to support reinstatement. Latta.  In such suspension situations, the causal connection between the original work-related injury and the disability which gave rise to the compensation is presumed. Citing: Pieper, Emphasis in the original.

Does the Protz reinstatement claimant need to establish a worsening of their condition? 
In Stanek, the burden of proof - to be entitled to reinstatement of total disability after expiration of the 500-weeks of partial disability - is that claimant must show: (1) a loss of earning capacity and (2) a worsening of the claimant’s medical condition. 

In Whitfield, the Commonwealth Court distinguishes the general rule of Stanek.  In Stanek he did not have his disability status changed based upon an impairment rating evaluation rather Stanek received partial disability benefits based upon a change in his earning power.  After he exhausted his 500-weeks of partial disability, he sought reinstatement on the basis that his physical condition had worsened, rendering him totally disabled. 

Contrast that Stanek status with an IRE case, where a claimant’s change in disability status was never based upon a change in earning power or a change in physical condition, rather in an IRE, the change in status was based solely upon an impairment rating. “It makes little sense to require a claimant seeking reinstatement based upon an unconstitutional IRE to show a change in earning power when the employer was not required to show the same (change) when it had is had the claimant’s disability status modified from total to partial”.  (slip op. p.26)

In Whitfield the WCAB Order was vacated and the case was remanded to the WCJ to make findings of fact related to whether the claimant presented credible testimony that she is totally disabled.  The WCJ did not make any findings regarding credibility of claimant’s testimony as the WCJ Decision was based upon the applicability of Protz I.  In Whitfield claimant testified that she is totally disabled.  The employer presented no evidence to the contrary.  If claimant’s testimony is credited, claimant is entitled to reinstatement as of the date she filed her reinstatement petition (Slip Opinion p.27).

Commonwealth Court addressed the Whitfield Employer framing of the issues presented as involving the retroactivity of Protz II.

The Commonwealth Court dismissed the employer argument that “retroactive application” of Protz II would upset employer’s reasonable expectation of the finality of the prior IRE determination.  The court reasoned that claimant always had the section 413 remedy for modification/reinstatement while receiving benefits or recently concluded benefits, so long as the petition was filed within three years of the date of the most recent payment. This ruling does not upset the employer’s expectation of finality as the Act always provided a mechanism for claimants to seek modification pursuant to Section 413.

The Court reasoned that the issue presented in Whitfield is not truly a question of retroactivity.  “A retroactive law has been defined as one which relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired… a law is given retroactive effect when it is used to impose new legal burdens on a past transaction or occurrence”. Citing: Department of Labor and Industry.

“Our decision today does not impose any new legal consequences based upon a past transaction.  Simply because Protz II is being applied to a case that arose from a work injury and a change in disability status that predates it, does not mean it operates retroactively.  It would be retroactive if it related back and gave a prior transaction a legal effect different from that which it had under the law in effect at the time. (Whitfield)

This decision does not alter claimant’s past status.  Rather it gives effect to the claimant’s status as it existed at the time she filed her reinstatement petition, which was filed within the statutory framework for filing such petitions. (slip op. p 29).

Significantly, as noted in footnote 24, the Commonwealth Court stated “we do not resolve whether Protz II would apply to cases in which the last payment made was outside the three (3) year period in Section 413(a).

Additional Commonwealth Court applications of its Whitfield analysis.

Also decided on June 6, 2018 were two unreported decisions at:
 (1) Moore v. WCAB (Sunoco Inc.) and (2) Pavlack v. WCAB (UPMC South Side).
These two decisions apply the Whitfield analysis and remand the cases for findings by the WCJ.

These two cases are noteworthy as the Court rejected the Claimant argument that Protz ll should apply to ALL claimants who are receiving partial disability benefits following a change in status based upon an IRE.

In these 2 cases, there was no factual evidence presented below. Accordingly, the Court remand instructions in Moore and Pavlack are somewhat different from the remand instruction in Whitfield.

In Moore and Pavlack the remand orders directed the WCJ to hold an evidentiary hearing to determine whether Claimant’s work-related injury continues.

Query: What is the scope of the evidence to be presented at such hearing?


RECOMMENDATIONS:

1. These legal issues and arguments require individual assessment by experienced workers compensation counsel.

2. Initially (we have heard) the scope of evidentary hearing may vary before each WCJ.

3. Be proactive. Schedule a medical evaluation to assess the presence or absence of work-related disability. 

4. Is there work available within the physical capabilities of claimant? Was there work made available in the past?

5. Assess the evidence available to address the disability status of claimant since the date of the IRE evaluation or since the date of WCJ order directing the modification.

These legal issues will continue to develop as each "type" of IRE case is addressed.